Munna Kumar Upadhyaya
@ Munna Upadhyaya Vs. The State of Andhra Pradesh through Public Prosecutor,
Hyderabad, Andhra Pradesh
[Criminal Appeal No.
1316 of 2008]
J U D G M E N T
Swatanter Kumar, J.
1.
The
present appeal is directed against the judgment of the High Court of Judicature,
Andhra Pradesh at Hyderabad dated 28th March, 2007, confirming the judgment of
conviction and order of sentence passed by the learned Third Additional
Sessions Judge, Ranga Reddy District at L.B. Nagar on 22nd January, 2007. Facts
in Brief
2.
One
Shri Baldevraj Seth was working as Chief Track Engineer, South Central Railway.
He was living in Bungalow No.100, Railways Officer’s Colony, South Lalaguda of
Secunderabad, the official residence allotted to him along with his family members,
i.e., his wife, Prabha Seth, son, Master Rishab Seth and daughter Kanika Seth. Accused
Chandra Bhushan Upadhyay (Accused No.1) was working as office peon in South Central
Railways, Secunderabad and was attached to the bungalow of Shri Baldevraj Seth for
the last 7 years.
Accused No.1 was married
in the year 1997 and was residing in the servant quarters of the said bungalow.
In fact, he had been given two servant quarters. Accused No.1 was arrogant,
evasive and in the habit of revolting against Smt. Prabha Seth who was a strict
person and demanded better performance of duties by accused No.1. The wife of accused
No.1, on the occasion of dussehra festival, went to her native place in Bihar,
to which all the accused belong. After her departure, accused No.1 became more
arrogant. Nearly a week before the occurrence,
Smt. Prabha Seth had
scolded accused No.1 for his shabby looks and had asked him to have a haircut. This
aggravated the grudge of accused No.1 towards her. On the very next day,
accused No.1 met his elder brother’s son, Munna Kumar Upadhyay (Accused No.2),
his brother-in-law, Maheshwar Upadhyay (Accused No.4) and their friend, Monu
Singh (Accused No.3). As already noticed, all of them belong to the same
village in the State of Bihar. Accused No.3 was working in Bharat Steels. Because
of the serious grudge of accused No.1 towards Smt. Prabha Seth, they all
planned to kill the entire family of Shri Baldevraj Seth and to decamp with the
gold ornaments, etc.
3.
In
furtherance to their plan, accused No.1 is stated to have purchased two knives
from a road side hawker in the market. He also told Accused Nos.2 to 4 to come
to the bungalow in the morning of the next Monday to execute their plan. On
17th March, 2003, at about 9.30 a.m., Baldevraj Seth left for his office. At
about 10 a.m., accused No.2 to 4 came to the entrance of the bungalow, not
permitting their entry from the main gate, accused No.1 took them to the
bathroom in the back varandah and closed the door. Accused No.1 closed all the
doors from inside. He did not permit the washerwoman to come inside the house and
gave her clothes from outside.
When the maid servants
who used to come to the house everyday to clean the house, came at their
respective times, they were sent back by accused No.1 on the pretext that Smt.
Prabha Seth wanted the house to be cleaned with acid and phenyl and therefore, they
should come on another day. A carpenter, Janagama Maheshwar, PW23 had also come
to the premises for fixing some poster beds. However, accused No.1 did not permit
him to come into the house and when the carpenter insisted on completing the
work, accused No.1 told him that Smt. Prabha Seth was not well and does not
want to be disturbed. At about 10.30 a.m., Smt. Prabha Seth went into the
bathroom. ACCUSED NO.1 went to the room of Master Rishab, who was watching the
television, and on the pretext of showing him something, called him to another
bathroom.
When Rishab reached
the bathroom, accused Nos.2 to 4 held the boy while accused No.1 cut his throat,
as a result of which he died instantaneously. His body was kept in the bathroom
itself. Thereafter when Smt. Prabha Seth came out of the bathroom, accused No.1
immediately attacked her and accused No.3, Monu Singh, opened fire on her with
a countrymade pistol. When she was trying to get free from the grip of accused
No.1, there was a scuffle and because of the resultant misfire, accused No.3
himself received injury on his leg. Then, accused No.1, with the knife, succeeded
in cutting the throat of Smt. Prabha Seth. Thereafter, the accused shifted her
body also to the bathroom. Accused No.1 cleaned the blood stains from the room
and watched for Kanika Seth, daughter of Baldevraj Seth, to arrive. She arrived
at 11.45 a.m. from the school. When she pressed the call button, accused No.1 directed
her to enter from the back door. The moment she stepped in, accused Nos.2 and 4
held her and accused No.1 cut her throat with a knife, as a result of which she
collapsed. Her body was then shifted to the bathroom. After killing these three
members of the family, they ran towards the bedroom, opened the almirah, took
gold ornaments like necklace, chains, rings, wrist watch and net cash of
Rs.44,560/-, which they distributed among themselves.
4.
Accused
No.3, Monu Singh was bleeding as a result of the bullet injury that he
suffered. The other accused took him to the premises of Bharat Steel, where he was
working as a security guard. There, one Shashidhar Pandey advised them to take
accused No.3 to a doctor. The doctor, after observing the injury of accused
No.3, asked them to shift the patient to Gandhi Hospital, Secunderabad. In
fact, the doctor helped them to get admitted and receive the treatment. accused
No.1 gave Rs.2,000/- to the said doctor for medical expenses and after giving that
money, accused Nos.1, 2 and 4 left the place. Accuse No.1 sent away Pandu, the watchman,
who had come to the residence of Baldevraj Seth, on the pretext of securing
sweets.
At about 6.50 p.m.,
Baldevraj Seth, returned from his office to his bungalow. He noticed that the
lights of the bungalow were off. As a routine, the driver used to bring the briefcase
of Baldevraj Seth inside the bungalow, but on that day, he was prevented from doing
so by Accused No.1, who brought the briefcase inside himself. Baldevraj Seth,
entered the house and immediately thereafter, accused fired at him and killed
him.
After killing him, he
shifted his body also into the bathroom and cleaned the floor of the hall with phenyl
and acid. He called Smt. Anju, accused No.5, who is his sister and was residing
with him, to clean the floor, whereafter accused No.1 went away to Mahindra Hills
to meet his brother in law. Thereafter, accused Nos.1, 2 and 4 returned to the
bungalow and found that Pandu, the watchman was sleeping in the guardroom at
the main gate. The accused waited there and at about 11 p.m. and then they took
the car from the garage, shifted the dead bodies to the car putting the body of
Baldevraj Seth in the dickey of the car.
Accuse Nos.1 and 2
took the car near the railway garage. They also dumped their blood stained
clothes, as well as those of the deceased, in the car. After taking the car
near the railway tracks at SP Nagar, Malkajgiri, and parking there, accused
Nos.1 and 2 came back to Tarnaka to buy petrol. Accused No.2 purchased ten
litres of petrol at Osmania University filling station, Tarnaka. They brought
the petrol to the place where the accused had parked the car, put the petrol on
the car and burnt the dead bodies with the car.
5.
Thereafter,
accused No.1 returned to the bungalow. Upon returning, in the next morning at 6
a.m., the accused informed the neighbour, one Sanjay Kumar Mishra (PW3) and
others that Baldevraj Seth had gone with his family for dinner outside, on 17th
March, 2003 at about 7.30 p.m. and did not return again. On 18th March, 2003 at
about 6.45 a.m., Municipal Counsellor, PW-1 made a report in Malkajgiri Police
Station stating that he had come to know that a car was in flames at SP Nagar Road,
Malkajgiri, near Railway water tank. The Maruti car was completely burnt and some
dead bodies were found in the car, so PW-1 requested the police to take necessary
action.
Upon this,
Sub-Inspector of Police, Malkajgiri, PW-47 registered a case under Sections
302, 201 IPC noted the engine No. and chassis No. of the vehicle and thereby
traced the owner. The dog squad was also put into service. In the meanwhile, the
Chief Engineer along with other senior officers visited the spot and informed the
police that one Meenal Seth, PW-12, the other daughter of Baldevraj Seth, was on
the way from Delhi to Hyderabad in Rajdhani Express and had telephoned them stating
that she was calling the phone numbers of the family members, but no one was
responding. Thus, he had sent his peon to the house of Baldevraj Seth. However,
accused No.1 had given him the same excuse that he had given to the neighbours
that the family had gone out. In the morning, he had been told that the family had
not returned. The dead bodies, on the basis of the articles recovered from the car
itself, were identified. After establishing the identity of the deceased, the investigating
officer prepared the inquest report and started the investigation.
6.
During
the course of investigation, the investigating officer recorded the statements
of different witnesses. From the very initial stages, accused No.1 appears to
have been the prime suspect. It was for this reason that Pandu, PW8 had
informed the investigating officer that he was not permitted to enter the
bungalow and the accused had insisted that he remain at the front gate and he
was then sent to buy sweets, which he gave to Accused No.5 on his return. When
the bungalow of the deceased was examined, at number of places, blood marks
were found sprinkled on the wall and the floor had become sticky as it had been
washed with phenyl and acid. Since accused No.1 failed to explain all these
suspicious circumstances, he was arrested and it is the case of the prosecution
that he finally confessed to the offence on 19th March, 2003, upon interrogation
conducted in the presence of two mediators.
7.
He
also admitted that the offence was committed with the assistance of Accused Nos.2
to 4 and Accused No.5. The cell phone and the knife which were used in the
commission of the crime were thrown by the accused in the dustbin near the church
at Mettuguda. In furtherance to the confessional statement of the accused and at
his instance, the cell phone, a portion of the gold ornaments, cash and knife were
recovered. On the basis of the information supplied by accused No.1, accused
No.5 was also arrested and gold ornaments were seized from her. At the instance
of Accused No.2, one country made revolver and one 7.62 M rib and OFV 9208 live
cartridge, which were hidden near the railway track, were recovered and seized along
with the portion of the gold ornaments recovered from him.
The detailed confessional
statement and seizure reports were prepared in the presence of witnesses. Finger
prints of accused Nos.1 to 5 were collected and sent for comparison with that of
chance prints obtained from the house of Baldevraj Seth. Upon recognition,
forensic science experts, headed by Dr. Rajagopal Reddy, Professor of Forensic
Medicine, Gandhi Medical College, Hyderabad visited the spot and held autopsy. The
incriminating articles and other collected materials were also sent for DNA Analysis
to the laboratory.
The investigating
officer recorded the statement of a number of witnesses, obtained the report
from the laboratory and finally filed the charge-sheet before the court of competent
jurisdiction. All the accused were committed to the Court of Sessions, which
charged the accused as follows:- “Against A1 – Under Sections 302, 201, 435,
380 or alternatively U/s 411 IPC and U/s 25(1)(a) and 27 of Arms Act. Against
A2 – Under section 302, 302 R/w 34, 201, 435, 380 or alternatively 411 IPC. Against
A3 – Under section 302, 380 or alternatively 411 IPC and 25(1)(a) and 27 of
Arms Act. Against A4 – Under Section 302, 302 R/w 34, 201, 380 or alternatively
U/s 411 IPC. Against A5 – Under Section 201, 380 or alternatively U/s 411 IPC.”
8.
They
were tried in accordance with law and by a very detailed judgment dated 24th
January, 2007, the trial court found all the accused guilty of different offences
as charged and punished them as follows:-
a. “A1 (Chandra Bushan
Upadhyay) is sentenced to death for the offence U/s 302 IPC. A1 is also
sentenced to suffer R.I. for 3 years each for the other offences U/ss. 201,
435, 411 IPC and section 25(1) (a) and 27(1) of Arms Act. All these sentences shall
run concurrently.
b. A2 (Munna Kumar
Upadhyay @ Munna Upadhyaya) is sentenced to suffer imprisonment for life for
the offence U/s. 302 R/w 34 IPC. He is also sentenced to suffer RI for 3 years each
for the offences U/ss. 201, 435 and 411 IPC. All the sentences shall run
concurrently.
c. A3 (Monu Singh) is
sentenced to suffer imprisonment for life for the offence U/s. 302 R/w 34 IPC. He
is also sentenced to suffer R.I. for 3 years each for the offences U/ss. 411
IPC and 25(1)(a), 27 of the Arms Act. All the sentences shall run concurrently.
d. A4 (Maheshwar
Upadhyay) is sentenced to suffer imprisonment for life for the offence U/s. 302
R/w 34 IPC. He is also sentenced to suffer R.I. for 3 years each for the
offences U/ss. 201, and 411 IPC. All the sentences shall run concurrently.
e. A5 (Smt. Anju
Choubey) is sentenced to suffer R.I. for 3 years each for the offence U/s 201 and
411 IPC respectively. The period of detention already undergone by A5 shall be given
set off against the sentence imposed as per Sec. 428 Cr.PC. Both the sentences
shall run concurrently.”
9.
Being
aggrieved from the judgment of the trial court, all the accused preferred an
appeal before the High Court. The High Court, vide its judgment dated 28th
March, 2007, acquitted the Accused Nos 3 and 4, namely, Monu Singh and
Maheshwar Upadhyay, of all offences with which they were charged. However, it
affirmed the conviction of accused No.1, Chandra Bhushan Upadhyay, accused
No.2, Munna Kumar Upadhyay and accused No.5, Anju Choubey.
10.
While
dealing with the order of sentence, the High Court partially accepted the plea
of accused No. 1 and commuted the death sentence awarded to him by the trial
court, to life imprisonment. Accused No. 5 had only been convicted for the
offence under Sections 201 and 411 IPC and she has not preferred any appeal before
this Court. The State has also not preferred any appeal before this Court against
the acquittal of accused Nos. 3 and 4. Accused No. 1, Chandra Bhushan Upadhyay,
had filed an appeal challenging the judgment of the High Court, but the same was
dismissed at the SLP stage itself, as being withdrawn, vide order of this Court
dated 6th August, 2007.
Thus, in the present appeal,
we are only concerned with the contentions raised on behalf of accused No. 2. The
learned counsel appearing for the said appellant has contended : A. The case
being one of circumstantial evidence, the entire evidence is of very weak
nature. The prosecution has not been able to establish the chain of
circumstances which undoubtedly points only towards the guilt of the accused. B.
The High Court has entirely based its order of conviction on the finger prints
found at the place of occurrence and there is no evidence as to how the finger
prints of the accused persons were collected by the Police and how they were
dispatched to the forensic laboratory for the purposes of comparison.
The vital link in the
evidence relating to finger prints is missing and as such, the judgment of the
High Court is liable to be set aside. C. The test identification parade,
firstly, was not held in accordance with law and secondly, it was held after
considerable unexplained delay, that too, when the photographs of the accused had
been published in the newspapers. Thus, the courts could not have relied upon the
identification parade in returning a finding of guilt against the accused. D.
Lastly, the contention is that the acquittal of accused Nos. 3 and 4 by the
High Court on merits is clear indication that the prosecution has failed to
prove its case beyond reasonable doubt. Thus, the High Court ought to have
acquitted the present appellant as well.
11.
There
can be no doubt that the present case is one of circumstantial evidence. There
is no witness to the commission of crime. Thus, there is a definite requirement
of law that a heavy onus upon the prosecution be discharged to prove the
complete chain of events and circumstances which will establish the offence and
would undoubtedly only point towards the guilt of the accused. To prove this chain
of events, prosecution had examined as many as 49 witnesses. This included the persons
who were working at the bungalow, neighbours, the worker at the petrol pump from
which Accused no.2 purchased petrol, the doctors, forensic experts, fingerprint
expert and the only surviving member of the family i.e., daughter Meenal Seth,
PW12.
This ocular evidence
is obviously in addition to the documentary and expert evidence brought by the prosecution
on record. A case of circumstantial evidence is primarily dependent upon the prosecution
story being established by cogent, reliable and admissible evidence. Each
circumstance must be proved like any other fact which will, upon their
composite reading, completely demonstrate how and by whom the offence had been committed.
This Court has clearly stated the principles and the factors that would govern
judicial determination of such cases. Reference can be made to the case of
Sanatan Naskar and Anr. Vs. State of West Bengal [(2010) 8 SCC 249], where the
Court held as follows:-
“27. There cannot be
any dispute to the fact that it is a case of circumstantial evidence as there
was no eyewitness to the occurrence. It is a settled principle of law that an
accused can be punished if he is found guilty even in cases of circumstantial
evidence provided, the prosecution is able to prove beyond reasonable doubt complete
chain of events and circumstances which definitely points towards the involvement
and guilt of the suspect or accused, as the case may be. The accused will not
be entitled to acquittal merely because there is no eyewitness in the case. It
is also equally true that an accused can be convicted on the basis of
circumstantial evidence subject to satisfaction of the accepted principles in that
regard. 28. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v.
State of Maharashtra held as under: (SCC pp. 184-85, paras 152-54) “152. Before
discussing the cases relied upon by the High Court we would like to cite a few decisions
on the nature, character and essential proof required in a criminal case which
rests on circumstantial evidence alone.
The most fundamental
and basic decision of this Court is Hanumant Govind Nargundkar v. State of M.P.
This case has been uniformly followed and applied by this Court in a large number
of later decisions up-to-date, for instance, the cases of Tufail v. State of
U.P. and Ram Gopal v. State of Maharashtra. It may be useful to extract what Mahajan,
J. has laid down in Hanumant case: (AIR pp. 345-46, para 10) ‘10. … It is well
to remember that in cases where the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and they should be such
as to exclude every hypothesis but the one proposed to be proved.
In other words, there
must be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it
must be such as to show that within all human probability the act must have been
done by the accused.’ 153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an accused can be
said to be fully established: (1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established. It may be noted here that this
Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’
established.
There is not only a grammatical
but a legal distinction between ‘may be proved’ and ‘must be or should be proved’
as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra9
where the observations were made: [SCC p. 807, para 19 : SCC (Cri) p. 1047] ‘19.
… Certainly, it is a primary principle that the accused must be and not merely
may be guilty before a court can convict and the mental distance between “may be”
and “must be” is long and divides vague conjectures from sure conclusions.’ (emphasis
in original)
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty, (3) the circumstances should be of a
conclusive nature and tendency, (4) they should exclude every possible hypothesis
except the one to be proved, and (5) there must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human probability the act
must have been done by the accused. 154. These five golden principles, if we
may say so, constitute the panchsheel of the proof of a case based on circumstantial
evidence.”
12.
Now,
let us examine the prosecution evidence in this case before considering the
contentions raised on behalf of the appellant. PW-47 is the police officer who
had registered the First Information Report, Ext.P- 134. PW-48 and 49 are the investigating
officers who conducted the investigation of the case. The identity of all the
deceased and the fact that they were residents of the bungalow in question,
that accused Nos. 1 and 5 were living in the premises and that accused No. 2 was
nephew of accused No. 1 have been fully established on record by the statements
of PW- 3 to PW-8 and PW-12, Meenal Seth, daughter of Baldevraj Seth.
13.
The
identity of the deceased persons as well as the connection of accused No. 3
with the commission of crime has duly been proved by Ext. P- 96, the DNA Report
from the Forensic Science Laboratory Hyderabad, Andhra Pradesh which was
specifically recorded and supported by the evidence of PW- 39, Dr. G.V.
Jagdamba. According to this witness, he had received the requisition from the
Commissioner of Police, Cyberabad for performing DNA test. He stated that he
conducted the DNA test on the items which were received by him. The analysis
was taken up by organic extraction process and thereby he could establish the
identity of deceased, Kanika Seth and Prabha Seth as also the involvement of Monu
Singh, accused No. 3 after examination of the submitted blood samples.
14.
In
fact, there can be no doubt as to the fact that the accused No. 1 was working
as domestic servant of Baldevraj Seth and living in the servant quarters. The
reason for commission of crime, as per the case of the prosecution, was the
persistent grudge of accused No. 1 towards Prabha Seth, the deceased.
15.
All
the accused planned and then killed all the four members of the family, one by
one. They committed the crime in a most brutal manner by cutting the throat of
each one of the deceased. Of course, in the process, when accused No. 3 wanted
to shoot Prabha Seth in the scuffle, he suffered the gun injury and later they
killed Prabha Seth by causing a knife injury at her throat.
16.
To
this entire occurrence, there is no eye-witness but the attendant circumstances
have fully been established by the prosecution. The forensic expert as well as
the neighbours and the Investigating Officers had seen the blood stained walls,
the floor, having been washed with phenyl and acid, which was sticky and
various incriminating items seized in the presence of the witnesses after
confessions of the accused.
17.
Furthermore,
PW-8, Pandu clearly stated that when he had come to the bungalow, it was
accused No. 1 who did not permit him to go inside the house and asked him to
wait outside at the main gate and then, had even sent him to get the sweets
from the market, which he brought and gave to accused No. 5. Similarly,
Janagana Maheshwar, carpenter, PW-23, who had come to repair the wooden
bedsteads was again not allowed admission into the house and was sent away to
work outside, on the pretext that Prabha Seth was not feeling well and did not want
to be disturbed. PW-3 identified accused No.1, accused No.2 and accused No.5 as
he had seen them in the bungalow on various occasions. PW-4, Sabita also stated
that she was working as a maid servant for sweeping and mopping the floor of the
bungalow and on the fateful day, was not permitted by accused No.1 to do her
routine job.
She found that the
rear door from where she used to enter the house normally had been closed from
inside and after she called for the accused, he asked her to go away because
Prabha Seth was not feeling well. On similar lines were the statements of PW5 and
PW6. The following portion of the statement of PW-6, in fact, completely brings
out the involvement of accused No. 1 in the commission of the crime. “Then A1
asserted that madam had gone to a movie, got wild and in an angry mood asked me
to go away. I noticed the floor of the hall sticky and wet. Then I asked A1 why
the floor in the hall is sticky and wet. A1 replied me that madam asked him to clean
the floor of the hall with an acid and accordingly he washed the floor of the
hall with an acid and asked me to go away, in an angry mood.
Then I returned home.
As soon as I came out of the house, A1 closed the rear door from inside. I returned
to my house. On the next day i.e. on 18-03-2003 at about 7.30 a.m., I was
returning home by purchasing milk from a nearby milk booth. I found A1 and the
wife of PW3 talking with each other. She was asking A1 whether B.R. Seth and
his family members had come back or they gave any information through telephone,
for which A1 replied her that Seth and his family members have not come back. I
returned to my house. At about 11.00 a.m. on 18-03-2003, police officials and
railway official came to the official bungalow of B.R. Seth. Then I came to know
about the death of B.R. Seth and his family.”
18.
Besides
all this is the statement of PW-12, the sole surviving member of Seth family,
which has fully corroborated the statement of all these witnesses, as well as
that of neighbour PW3. She was travelling from Delhi to Secunderabad by train. A
number of times, she claims to have called up the numbers of her father and
other family members, but none responded. Upon this, she had rang up PW-3 to
find out what had happened. It was only on her arrival at Secunderabad that she
came to know about the unfortunate event where her entire family had been
murdered by the accused.
Accused had
disappeared from the premises in question. Prior thereto, he had even told the
neighbour, who made enquiry in furtherance to the phone calls by PW-12, that
Baldevraj Seth and the family had gone out in the car on the evening of 17th
March, 2003, but had never returned back. There is no occasion for so many
witnesses to depose falsely implicating the accused in the commission of crime.
The statement of these witnesses seen in conjunction with the circumstance that
the accused had given different and conflicting versions to different persons (servants
and neighbours) at different times, either for not permitting their entry into the
house, or claiming that the family had gone out on 17th March, 2003, fully
support the case of the prosecution.
19.
PW25
is again a very material witness, who has proved the involvement of accused No.
2 in the commission of the crime. According to this witness, he was working as a
helper in the University Filling Station petrol pump. He knew only accused
No.2. On the evening of 17/18th March, 2003, at about 12.30 – 1.00 a.m. accused
No. 2 had come to the petrol pump and asked for 10 litres of petrol. Accused
No. 2 was carrying a plastic container for that purpose. Upon enquiry from this
witness, he told this witness that he needed the petrol because his family was travelling
in a car and the petrol in the car had finished.
On this pretext, he purchased
10 litres of petrol. Accused No. 2 paid this witness Rs.350/- and had to collect
Rs.3 as change. When PW-25 was looking for the change, the accused did not wait
and went away. This witness duly identified MO 74, the plastic cane in which he
had given petrol to the accused. This petrol, according to the prosecution, had
been used in burning the car as well as the dead bodies of the deceased
persons. PW36, M. Sanjiv Kumar, is the forensic expert who had been sent
various items collected from the scene of the car. According to him, he was asked
to analyze for detection of flammable material on these items.
Upon analysis, he gave
a report that the items 1 to 8, 24 and 31 were detected for flammable material.
From the burnt clothes, he reported that they bore traces of flammable material.
Smell of petrol was also present at the scene and this fact stood confirmed by
the statement of PW48, the Investigating Officer. Thus, it is clear that
accused No. 2 had taken the petrol from the petrol pump and used it, along with
other accused, for the purpose of putting the car and the dead bodies of the deceased
persons on fire.
20.
PW45,
another forensic expert, had found human blood in the rooms where the crime was
committed and also on the items which were sent to him for his opinion. The presence
of human blood (B+) on these items, including the clothes which were sent for
serological examination, clearly indicates that in that house, murder of some human
being had been committed. Identities of those human beings stands completely established
not only by expert evidence but by the evidence of the neighbours also.
21.
The
prosecution had also examined the ballistics expert as PW-37. He expressed his
opinion that item No. 2 was a live cartridge and he opined that it was a
country made pistol with 7.62 MM calibre and that the cartridges recovered had been
fired from the recovered pistol. The cartridges were recovered from the bungalow
while the pistol and live cartridge was recovered in furtherance to the
confessional statements made by accused Nos.2 and 3.
22.
The
learned counsel appearing for the appellant had argued with some vehemence that
the reliance placed by the High Court on the evidence relating to finger prints
is misplaced, as it has not even been proved in accordance with law. Firstly,
we may notice that the judgments of the Courts below do not solely rely upon
the evidence of finger prints, but this was only one of the factors which were
taken into consideration by the trial Court. Secondly, the contention itself is
without any substance.
23.
PW-38,
the finger print expert had visited the site and lifted some chance finger
prints on the steel almirahs from near the inner lock door and another set of
finger prints from the rear side of the bathroom. During the course of
investigation, the investigating officer PW-48, with the leave of the Court,
had taken the sample finger prints of all the accused, i.e., accused No.1 to
accused No.5. These finger prints were sent to the forensic laboratory to be
compared with the chance finger prints that had been lifted by the expert. The Investigating
Officer had sent them vide Ext. P52 to the finger print expert. These were
examined by the expert, who submitted his Report vide Ext. P73 to the Court and
in particular vide Ext. P38, he clearly stated that the chance finger prints matched
with the finger prints of accused Nos.1 and 2. This expert was examined as PW38
in the Court. In his statement, he clearly stated that he had not found any
chance print, either on the plastic tin or on the burnt car, but with regard to
the chance finger prints collected from the bungalow, i.e. inner lock door of
steel almirah and the back door of the house, he clearly stated that those matched
the finger print slip containing the finger prints of Munna Kumar Upadhyay
(accused No. 2), which are marked as “P”. This witness was cross-examined at
length, without any material to favour the accused. Even in his
cross-examination, he clearly stated that when they went to the bungalow, the steel
almirah of the bedroom was open. He also examined the wooden door planks of the
rear side bathroom and had taken a chance print from there, which was later proved
to match the prints of accused No.1.
24.
No
suggestion was put to this witness in his cross-examination that he never went
to the site, never collected the finger prints or that the finger prints of the
accused were never sent by the police to him. We may also notice that, even to
the investigating officer, this suggestion was never put. The attempt on behalf
of the accused to object to the evidence of the finger prints on the ground that
the investigating officer has not told in his examination-in-chief that he had
taken the finger prints of the accused and sent them to the expert does not
carry much weight in view of the above documentary, ocular and expert evidence.
It was expected of the Investigating Officer to make a statement in that behalf,
but absence of such statement would not weight so much against the prosecution that
the court should be persuaded to reject the evidence of PW38 along with the clinching
evidence of Ext. P-52, P-72 and P-73 respectively.
25.
Equally
without merit is the submission on behalf of the appellant that the finger
print could be there upon the almirah in the normal course of business, as
accused No. 1 was the domestic servant working in the bungalow. What is
important is that the presence of finger prints of accused No. 2 found in the
house and particularly on the almirah in the bedroom of the deceased, remain
unexplained and secondly, no attempt was made by any of the accused persons to take
a stand to explain their conduct.
26.
The
reliance upon the case of Chandran @ Surendran and Anr. Vs. State of Kerala
[1991 Supp. (1) SCC 39, para 21 and 24] is again not of help to the accused
inasmuch as the facts of that case were totally different and the accused had
taken up the plea that the finger prints upon the glass had been taken by the
police by coercion. The Court, on the facts of that case and upon the evidence
before the Court, came to the conclusion that finger print evidence was not
reliable because among all glass pieces, only two had matching finger prints
and no appropriate explanation has been given.
27.
In
the present case, lifting of chance finger prints and on comparison being found
to be matching with the sample finger prints of the accused, taken by the
Police, is not the only piece of evidence. There is corroborating evidence of
the prosecution witnesses on the one hand, and on the other, evidence of PW-12,
the daughter of the deceased, who identified the gold ornaments, which were
stolen by the accused from the almirah, as belonging to her deceased mother and
which were recovered from the possession of accused persons.
28.
This
Court, in the case of B.A. Umesh v. Registrar General, High Court of Karnataka
[(2011) 3 SCC 85], where the finger prints were found on the handle of a steel
almirah to which the persons from outside had no access, held as under:- “75.
The aforesaid position is further strengthened by the forensic report and that
of the fingerprint expert to establish that the fingerprints which had been
lifted by PW 13 from the handle of the steel almirah in the room, matched the
fingerprint of the appellant which clearly established his presence inside the
house of the deceased. The explanation attempted to be given for the presence
of the fingerprints on the handle of the almirah situated inside the room of the
deceased does not inspire any confidence whatsoever. In a way, it is the said evidence
which scientifically establishes beyond doubt that the appellant was present in
the room in which the [pic]deceased was found after her death and had been
identified as such not only by PW 2, who actually saw him in the house immediately
after Jayashri was murdered, but also by PWs 10 and 11, who saw him coming out
of the house at the relevant point of time with the bag in his hand. The
fingerprint of the appellant found on the handle of the almirah in the room of the
deceased proves his presence in the house of the deceased and that he and no other
caused Jayashri's death after having violent sexual intercourse with her
against her will.”
29.
In
light of the above, we have no hesitation in rejecting this contention of the appellant.
The prosecution has by other evidence, clearly been able to establish the
physical contact between the accused and the articles within the almirah, and
therefore, the almirah door also.
30.
In
the present case, as far as the deceased persons are concerned, because of the
burnt condition of bodies, there could be no other evidence of cause of death
except identification of the deceased persons, which has already been established
by the prosecution. The accused persons, particularly, accused Nos. 1, 2 and 3 have
suffered physical injury. Accused No. 3 had even suffered bullet injury which has
been proved on record by the statement of PW-46, the doctor, as also PW-33 and PW-43,
all doctors. PW-18, who was running a clinic in the name of “Baba Clinic” NFC
Main Road, stated that he knew the accused and on 17th March, 2003, the accused
persons had come to his residence and informed him that accused No.3 had
suffered injury on account of a fall due to drunken stage. After examining
accused No.3, he found two bullet gun shots on the left leg of accused No.3,
who was also in intoxicated condition. They were sent to hospital for treatment
and they paid money for treatment. Thereafter, leaving Accused No. 3 in the hospital,
the rest of the accused went missing. These are the circumstances which connect
the accused persons with the crime.
31.
The
High Court has declined to rely upon any of the extra judicial confessions made
by the accused persons to various other persons. It is stated by the
prosecution that the Panch witnesses P. Chiranjeevi, PW-41 and Sudarshan Rao,
PW-34 were called to the bungalow by the investigating officer PW-49, and it
was this mediator Shri P. Chiranjeevi, PW-41 who made inquiries. When the
inquiry was made from Accused No. 1, Accused No. 1 is voluntarily stated to
have confessed to opening the almirah and taking out the cash and jewellery. He
also confessed that he had murdered the deceased and had hid the knife and cell
phone in the MCH dustbin near Mettuguda. In furtherance to his statement Ext.
P-37, recoveries were also effected.
32.
Accused
No. 2 had also made a confessional statement to Panchas. From the statements of
accused No. 2, they had got recovered the cartridges and pistol, etc. also.
33.
PW33,
Dr. D. Sudha Rani who had treated the accused for their injuries, stated in her
statement that the accused persons had told her that they had suffered injuries
on 17th March, 2003 while committing the murder and at different times, when
they killed each of the deceased.
34.
The
High Court was right in not relying upon such confessions, but it ought to have
rejected only the part which is inadmissible in accordance with the provisions
of Section 27 of the Indian Evidence Act, 1872.
35.
The
statements in so far as they concern the use of various articles in commission
of crime and recovery of such articles and stolen items, would form a valid and
admissible piece of evidence for the consideration of the court. The history
given to the doctor at the time of treatment would not be strictly an extra
judicial confession, but would be a relevant piece of evidence, as these
documents had been prepared by PW33 in the normal course of her business. Even
the accused do not dispute that they were given treatment by the doctor in
relation to these injuries. Thus, it was for the accused to explain this
aspect. This Court has had the occasion to discuss the effect of extra-judicial
confessions in a number of decisions.
36.
In
Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated
the principle that an extra-judicial confession, by its very nature is rather a
weak type of evidence and requires appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance.
37.
In
Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well
settled that it is a rule of caution where the court would generally look for
an independent reliable corroboration before placing any reliance upon such
extra-judicial confession.
38.
Again,
in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that
there is no doubt that conviction can be based on extrajudicial confession, but
it is well settled that in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other fact and the value thereof
depends upon veracity of the witnesses to whom it is made.
39.
While
explaining the dimensions of the principles governing the admissibility and
evidentiary value of an extra-judicial confession, this Court in the case of
State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that an
extra-judicial confession, if voluntary and true and made in a fit state of
mind, can be relied upon by the court. The confession will have to be proved like
any other fact. The value of evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been made. The Court further
expressed the view that such a confession can be relied upon and conviction can
be founded thereon if the evidence about the confession comes from the mouth of
witnesses who appear to be unbiased, not even remotely inimical to the accused
and in respect of whom nothing is brought out which may tend to indicate that
he may have a motive of attributing an untruthful statement to the accused.
40.
In
the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court,
while holding that reliance on extra-judicial confession by the lower courts in
absence of other corroborating material, was unjustified, observed: “87.
Confession ordinarily is admissible in evidence. It is a relevant fact. It can be
acted upon. Confession may under certain circumstances and subject to law laid down
by the superior judiciary from time to time form the basis for conviction. It
is, however, trite that for the said purpose the court has to satisfy itself in
regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession;
(iii) corroboration. XXX XXX XXX 89. A detailed confession which would
otherwise be within the special knowledge of the accused may itself be not
sufficient to raise a presumption that confession is a truthful one. Main features
of a confession are required to be verified. If it is not done, no conviction
can be based only on the sole basis thereof.”
41.
Accepting
the admissibility of the extra-judicial confession, the Court in the case of
Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :- “29. There is
no absolute rule that an extra-judicial confession can never be the basis of a conviction,
although ordinarily an extra-judicial confession should be corroborated by some
other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v.
State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42),
Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of
W.B.] 30. In the present case, the extra-judicial confession by Balwan has been
referred to in the judgments of the learned Magistrate and the Special Judge,
and it has been corroborated by the other material on record. We are satisfied that
the confession was voluntary and was not the result of inducement, threat or
promise as contemplated by Section 24 of the Evidence Act, 1872.”
42.
Dealing
with the situation of retraction from the extra judicial confession made by an accused,
the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5 SCC 740], held as under : “It appears therefore, that the appellant has
retracted his confession. When an extra-judicial confession is retracted by an
accused, there is no inflexible rule that the court must invariably accept the
retraction. But at the same time it is unsafe for the court to rely on the retracted
confession, unless, the court on a consideration of the entire evidence comes
to a definite conclusion that the retracted confession is true.”
43.
Extra-judicial
confession must be established to be true and made voluntarily and in a fit
state of mind. The words of the witnesses must be clear, unambiguous and should
clearly convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis of conviction,
if it passes the test of credibility. The extra-judicial confession should inspire
confidence and the court should find out whether there are other cogent
circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011)
11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
44.
Thus,
all the above circumstances have to be examined in light of the above
principles. We have discussed in some detail the evidence led by the
prosecution and the above cases would squarely apply to the present case.
45.
Another
contention of the accused is in relation to the identification of the accused
being conducted in a manner contrary to law. The counsel, while relying upon
the case of Rajesh Govind Jagesha Vs. State of Maharashtra [(1999) 8 SCC 428],
submitted that the identification parade of the accused was conducted much
after their arrest. They were arrested on 19th March, 2003 and the identification
parade of the accused was conducted on 20th June, 2003. Furthermore, the
photograph of the accused had been published in the newspaper on 19th March, 2003.
In the case relied upon by the appellant, the accused who was stated to be having
a beard and long hair and was so described in the First Information Report was
required to be clean-shaven by the police. The fact that no person similar to
the person whose description was given in FIR was included in the Test
Identification Parade, the Court expressed dissatisfaction and held that it was
required for the prosecution to show how and under what circumstances the complainant
and the witnesses came to recognise the accused. This case on facts, therefore,
is of no assistance to the accused.
46.
There
was some delay in holding the identification parade. But the delay per se
cannot be fatal to the validity of holding an identification parade, in all cases,
without exception. The purpose of the identification parade is to provide corroborative
evidence and is more confirmatory in its nature. No other infirmity has been pointed
out by the learned counsel appearing for the appellant, in the holding of the identification
parade. The identification parade was held in accordance with law and the
witnesses had identified the accused from amongst a number of persons who had
joined the identification parade. There is nothing on record before us to say
that the photographs of the accused were actually printed in the newspaper. Even
if that be so, they were printed months prior to the identification parade and
would have lost their effect on the minds of the witnesses who were called upon
to identify an accused.
47.
46.
However, we hasten to clarify that it is always appropriate for the investigating
agency to hold identification parade at the earliest, in accordance with law,
so that the accused does not face prejudice on that count. We may refer to the judgment
of this Court in a more recent judgment in the case of Sidhartha Vashisht alias
Manu Sharma Vs. State (NCT of Delhi) [(2010) 6 SCC 1], where law in relation to
purpose of holding an identification parade, the effect of delay and its evidentiary
value were discussed. The Court held as under:- “256.
The law as it stands
today is set out in the following decisions of this Court which are reproduced
as hereinunder: Munshi Singh Gautam v. State of M.P.: (SCC pp. 642-45, paras
16-17 & 19) “16. As was observed by this Court in Matru v. State of U.P.
identification tests do not constitute substantive evidence. They are primarily
meant for the purpose of helping the investigating agency with an assurance that
their progress with the investigation into the offence is proceeding on the
right lines. The identification can only be used as corroborative of the
statement in court. (See Santokh Singh v. Izhar Hussain.)
The necessity for holding
an identification parade can arise only when the accused are not previously
known to the witnesses. The whole idea of a test identification parade is that
witnesses who claim to have seen the culprits at the time of occurrence are to identify
them from the midst of other persons without any aid or any other source. The
test is done to check upon their veracity. In other words, the main object of holding
an identification parade, during the investigation stage, is to test the memory
of the witnesses based upon first impression and also to [pic]enable the prosecution
to decide whether all or any of them could be cited as eyewitnesses of the
crime. The identification proceedings are in the nature of tests and significantly,
therefore, there is no provision for it in the Code and the Evidence Act.
It is desirable that a
test identification parade should be conducted as soon as after the arrest of the
accused. This becomes necessary to eliminate the possibility of the accused
being shown to the witnesses prior to the test identification parade. This is a
very common plea of the accused and, therefore, the prosecution has to be
cautious to ensure that there is no scope for making such an allegation. If,
however, circumstances are beyond control and there is some delay, it cannot be
said to be fatal to the prosecution. 17. It is trite to say that the
substantive evidence is the evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court.
The facts, which
establish the identity of the accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence of a witness is the
statement made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification, therefore, is to test
and strengthen the trustworthiness of that evidence. It is, accordingly,
considered a safe rule of prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings.
This rule of prudence,
however, is subject to exceptions, when, for example, the court is impressed by
a particular witness on whose testimony it can safely rely, without such or other
corroboration. The identification parades belong to the stage of investigation,
and there is no provision in the Code which obliges the investigating agency to
hold or confers a right upon the accused to claim a test identification parade.
They do not constitute substantive evidence and these parades are essentially governed
by Section 162 of the Code. Failure to hold a test identification parade would not
make inadmissible the evidence of identification in court.
The weight to be attached
to such identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identification even without insisting
on corroboration. (See Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa v.
State of A.P., Budhsen v. State of U.P. and Rameshwar Singh v. State of
J&K.) 19. In Harbajan Singh v. State of J&K, though a test identification
parade was not held, this Court upheld the conviction on the basis of the
[pic]identification in court corroborated by other circumstantial evidence. In
that case it was found that the appellant and one Gurmukh Singh were absent at
the time of roll call and when they were arrested on the night of 16-12-1971 their
rifles smelt of fresh gunpowder and that the empty cartridge case which was
found at the scene of offence bore distinctive markings showing that the bullet
which killed the deceased was fired from the rifle of the appellant.
Noticing these circumstances
this Court held: (SCC p. 481, para 4) ‘4. In view of this corroborative evidence
we find no substance in the argument urged on behalf of the appellant that the
investigating officer ought to have held an identification parade and that the failure
of Munshi Ram to mention the names of the two accused to the neighbours who
came to the scene immediately after the occurrence shows that his story cannot
be true. As observed by this Court in Jadunath Singh v. State of U.P. absence of
test identification is not necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villagers only shows that the accused
were not previously known to him and the story that the accused referred to each
other by their respective names during the course of the incident contains an
element of exaggeration.
The case does not rest
on the evidence of Munshi Ram alone and the corroborative circumstances to which
we have referred to above lend enough assurance to the implication of the
appellant.’ Malkhansingh v. State of M.P.: (SCC pp. 751-52, para 7) “7. It is trite
to say that the substantive evidence is the evidence of identification in court.
Apart from the clear provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court. The facts, which
establish the identity of the accused persons, are relevant under Section 9 of
the Evidence Act. As a general rule, the substantive evidence of a witness is
the statement made in court.
The evidence of mere identification
of the accused person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of a prior test identification,
therefore, is to test and strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to generally look for corroboration
of the sworn testimony of witnesses in court as to the identity of the accused
who are strangers to them, in the form of earlier identification proceedings. This
rule of prudence, however, is subject to exceptions, when, for example, the
court is impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration.
The identification parades
belong to the stage of investigation, and there is no provision in the Code of
Criminal Procedure which obliges the investigating agency to hold, or confers a
right upon the accused to claim a test identification parade. They do not constitute
substantive evidence and these parades are essentially governed by Section 162
of the Code of Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in court.
The weight to be attached
to such identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identification even without insisting
on corroboration.” 259. In Mullagiri Vajram v. State of A.P.62 it was held that
though the accused was seen by the witness in custody, any infirmity in TIP
will not affect the outcome of the case, since the depositions of the witnesses
in court were reliable and could sustain a conviction. The photo identification
and TIP are only aides in the investigation and does not form substantive evidence.
The substantive evidence is the evidence in the court on oath.”
48.
In
the facts and circumstances of the present case, we are unable to accept the
plea that merely because of delay, the Court should reject the entire evidence
of identification of the accused in the present case. More so, the accused
persons were duly identified by these very witnesses in the upon court, while
they were deposing.
49.
From
the above discussion, it is clear that the prosecution had been able to
comprehensively and reliably establish the chain of circumstances. The evidence
produced on record does not leave any major loopholes in the case of the
prosecution. With the help of the prosecution witnesses, the presence of the
accused in the bungalow, their intention of committing such heinous crime, the
manner in which the accused persons had destroyed the evidence, i.e., the car, dead
bodies and blood stained cloths of the deceased and the accused themselves,
from where and how they had procured the incriminating articles which they used
in the crime, like knife, petrol etc. and finally the conduct of the accused
prior to and after commission of the crime have been established by the
prosecution.
50.
Most
importantly, the recovery of incriminating articles, cash and jewellery
belonging to the deceased, the finger prints of the accused and the false
stories given by the accused to different persons who came to the bungalow of
the deceased during 17th/18th March, 2003, to ensure that none of them enter
the house of the deceased stand unequivocally established. Besides all this
circumstantial evidence, another very significant aspect of the case is that
none of the accused, particularly accused No.2, offered any explanation during
the recording of their statements under Section 313 CrPC. It is not even
disputed before us that the material incriminating evidence was put to accused
No. 2 while his statement under Section 313 CrPC was recorded. Except for a
vague denial, he stated nothing more. In fact, even in response to a question
relating to the injuries that he had suffered, he opted to make a denial, which
fact had duly been established by the statements of the investigating officers,
doctors and even the witnesses who had seen him immediately after the crime. It
is a settled law that the statement of Section 313 CrPC is to serve a dual purpose,
firstly, to afford to the accused an opportunity to explain his conduct and
secondly to use denials of established facts as incriminating evidence against
him. In this regard, we may refer to some recent judgements of this Court. This
Court in the case of Asraf Ali v. State of Assam [(2008) 16 SCC 328] has
observed as follows : “
21. Section 313 of
the Code casts a duty on the court to put in an enquiry or trial questions to
the accused for the purpose of enabling him to explain any of the circumstances
appearing in the evidence against him. It follows as a necessary corollary there
from that each material circumstance appearing in the evidence against the
accused is required to be put to him specifically, distinctly and separately
and failure to do so amounts to a serious irregularity vitiating trial, if it is
shown that the accused was prejudiced.
22. The object of
Section 313 of the Code is to establish a direct dialogue between the court and
the accused. If a point in the evidence is important against the accused, and the
conviction is intended to be based upon it, it is right and proper that the
accused should be questioned about the matter and be given an opportunity of
explaining it. Where no specific question has been put by the trial court on an
inculpatory material in the prosecution evidence, it would vitiate the trial.
Of course, all these are subject to rider whether they have caused miscarriage
of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh
v. State (Delhi Admn.) while dealing with Section 342 of the Criminal Procedure
Code, 1898 (corresponding to Section 313 of the Code). Non- indication of
inculpatory material in its relevant facts by the trial court to the accused
adds to the vulnerability of the prosecution case.
Recording of a
statement of the accused under Section 313 is not a purposeless exercise.” Again,
in its recent judgment in Manu Sao v. State of Bihar [(2010) 12 SCC 310], a
Bench of this Court to which one of us, Swatanter Kumar, J., was a member, has
reiterated the above-stated view as under : “12. Let us examine the essential
features of this Section 313 CrPC and the principles of law as enunciated by
judgments, which are the guiding factors for proper application and consequences
which shall flow from the provisions of Section 313 of the Code.
13. As already
noticed, the object of recording the statement of the accused under Section 313
of the Code is to put all incriminating evidence against the accused so as to
provide him an opportunity to explain such incriminating circumstances appearing
against him in the evidence of the prosecution. At the same time, also to
permit him to put forward his own version or reasons, if he so chooses, in
relation to his involvement or otherwise in the crime. The court has been
empowered to examine the accused but only after the prosecution evidence has been
concluded. It is a mandatory obligation upon the court and besides ensuring the
compliance therewith the court has to keep in mind that the accused gets a fair
chance to explain his conduct.
The option lies with
the accused to maintain silence coupled with simpliciter denial or in the
alternative to explain his version and reasons for his alleged involvement in the
commission of crime. This is the statement which the accused makes without fear
or right of the other party to cross-examine him. However, if the statements
made are false, the court is entitled to draw adverse inferences and pass consequential
orders, as may be called for, in accordance with law. The primary purpose is to
establish a direct dialogue between the court and the accused and to put to the
accused every important incriminating piece of evidence and grant him an
opportunity to answer and explain. Once such a statement is recorded, the next question
that has to be considered by the court is to what extent and consequences such
statement can be used during the enquiry and the trial. Over the period of
time, the courts have explained this concept and now it has attained, more or less,
certainty in the field of criminal jurisprudence.
14. The statement of the
accused can be used to test the veracity of the exculpatory nature of the admission,
if any, made by the accused. It can be taken into consideration in any enquiry
or trial but still it is not strictly evidence in the case. The provisions of
Section 313(4) explicitly provides that the answers given by the accused may be
taken into consideration in such enquiry or trial and put in evidence against
the accused in any other enquiry or trial for any other offence for which such
answers may tend to show he has committed. In other words, the use is
permissible as per the provisions of the Code but has its own limitations. The
courts may rely on a portion of the statement of the accused and find him
guilty in consideration of the other evidence against him led by the
prosecution, however, such statements made under this section should not be
considered in isolation but in conjunction with evidence adduced by the prosecution.”
51.
In
view of the above principles, it was expected of the accused to render proper
explanation for his injuries and his conduct. However, he opted to deny the
same and in fact even gave false replies to the questions posed to him.
52.
If
the accused gave incorrect or false answers during the course of his statement
under Section 313 CrPC, the Court can draw an adverse inference against him.
53.
In
the present case, we are of the considered opinion that the accused has not
only failed to explain his conduct, in the manner in which every person of
normal prudence would be expected to explain but had even given incorrect and
false answers. In the present case, the Court not only draws an adverse
inference, but such conduct of the accused would also tilt the case in favour
of the prosecution.
54.
For
the above reasons, we see no infirmity in the judgments under appeal. There is
no merit in the submissions raised on behalf of the accused. Resultantly, the
appeal is dismissed.
…………………………….,J.
[A.K. Patnaik]
…………………………….,J.
[Swatanter Kumar]
New
Delhi;
May
8, 2012
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