RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR PRADESH

Citation: [2022] 5 S.C.R. 162; 2022 INSC 1075

Court: Supreme Court of India

Bench: UDAY UMESH LALIT , S. RAVINDRA BHAT, J.B. PARDIWALA

Judgment date: 2022-10-13

Case summary

2022 INSC 1075. Supreme Court of India judgment dated 2022-10-13. RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR PRADESH. Read the judgment and case details on...

Judgment text

162 SUPREME COURT REPORTS[2022] 5 S. C. R. 162 [2022] 5 S. C. R. A RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR PRADESH (Criminal Appeal Nos. 64-65 of 2022) B OCTOBER 13, 2022 [UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND J. B. PARDIWALA, JJ. ] Penal Code, 1860: s.

302 – Prosecution case was that on fateful day, appellant-accused murdered his wife and four children C with a sharp cutting weapon while they were sleeping – Motive behind the murder was attributed to extra marital affair of appellant with one married lady which was highly opposed by the deceased-wife – Discovery statement made by appellant and consequently recovery made – Appellant said to have made extra judicial D confession to prosecution witness – Trial court convicted the appellant and passed death sentence – High Court confirmed the death sentence – Hence instant appeal – Held: Present case is based on circumstantial evidence – Mere discovery is insufficient to infer the authorship of concealment by the person who discovered the weapon – The exact words of the accused person while making E discovery statement was not deposed by prosecution witness – Further, the contents of panchnama were not proved – Credibility of police witness (PW-6 and PW-7) was doubtful and evidence of discovery was held to be unreliable – Credibility of extra judicial confession was also doubted in view of oral evidence of prosecution F witness – As circumstance relating to extra judicial confession and discovery of weapon of offence were not established, the chain of circumstantial evidence was not established fully and thus other circumstance such as motive or the evidence of false explanation offered by the appellant as an additional link in chain of evidence were not considered – Further, the explanation offered by the G accused for injuries on his body could be said to be compatible with the defense story – Prosecution failed to establish the case beyond reasonable doubt and therefore the conviction is set aside.

Evidence Act, 1872: s. 8 – Relevance of Motive – Circumstantial Evidence – There cannot be straight jacket formula for appreciation H 162 RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 163 PRADESH of circumstantial evidence – Circumstances suggesting guilt must A be cogently and firmly established – The same must be of definite tendency and conclusive in nature – The circumstances should form the chain which conclusively points towards the guilt of accused in all human probability – Circumstantial evidence must be complete and should be devoid of any hypothesis giving room for accused’s B innocence but must support only one hypothesis i. e.

his guilt – Motive, though not as such an element of crime, but it assumes greater importance in cases resting on circumstantial evidence – Absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any C benefit to the accused – Motive could be an important circumstance but it per se does not take place as conclusive proof that the person concerned was the author of the crime. Evidence Act, 1872: s. 27 – Discovery Statement – Information received from the accused must result into discovery of fact for s.

D 27 to apply – While making such deposition, the accused must be in police custody – Only so much of information as relates distinctly to the fact thereby discovered is admissible – Further mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon – There might be the E possibility that the person may have seen somebody concealing the weapon, therefore it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it.

Evidence Act, 1872: Confession – Classification and Scope F – Confession can be classified as Judicial and extra-judicial – Former relates to those which are made before the Magistrate or Court – Extra Judicial are made before a private individual and which may include judicial officer in private capacity and Magistrate not especially empowered u/s 164 CrPC or the one so empowered but receiving confession at stage where s. 164 does not G apply. Evidence Act, 1872: Extra Judicial Confession – Weightage – It is a weak type of evidence since it can be easily procured whenever direct evidence is not available – It is not open to the Court to start with a presumption that extra-judicial confession is H 164 SUPREME COURT REPORTS [2022] 5 S. C. R.

A weak type of evidence – It can be accepted and can be the basis of a conviction if it passes the test of credibility – Credibility can be tested by keeping in mind that it comes from an unbiased witness who is not inimical to accused and who do not have motive for attributing an untruthful statement to the accused etc. B Evidence Act, 1872: Confession – Basis of Conviction – Explained – It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by the independent evidence – Further Extra-Judicial confession of accused need not in all cases be corroborated – Also the confession procured under C promise or threat or harassment is involuntary in nature and cannot be use in evidence – Involuntary confession is not which is not the result of free will of the maker. Evidence Act, 1872: Code of Criminal Procedure, 1973 – s.

313 – False Explanation tendered by the accused – Whether forms D additional link in circumstantial evidence – Explained – The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence – It is not the law where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court – Only when all the circumstantial E evidence are well established which points towards the guilt then only false explanation or false defence tendered by accused can be used as additional link and not otherwise.

Evidence Act, 1872: Burden of Proof – Extent and Meaning – In criminal trial the burden on the accused is to show the F “preponderance of probabilty” – The accused is not under burden to prove his case beyond reasonable doubt unlike prosecution – The meaning which the term “preponderance of probabilty” carries is something which connotes to “more probable and rational view of the case”, not necessarily as certain as the pleading should be – G The high standard of proof as required for prosecution is only to avoid wrongful conviction as the wrongful conviction leads to greater injustice than wrongful acquittal. Constitution of India: Art. 39A – Code of Criminal Procedure, 1973 – s. 304 – Legal Services Authorities Act, 1987 – s. 9 – Legal H RAMANAND @ NANDLAL BHARTI v.

STATE OF UTTAR 165 PRADESH aid to accused – Duty of State – Explained – What is meant by the A duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake – It has to be the provision of a counsel who defends the accused diligently to the best of his abilities – The presence of counsel on record means effective, genuine and faithful presence and not a mere farcical, B sham or a virtual presence that is illusory, if not fraudulent – Indigence should never be a ground for denying fair trial or equal justice therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases, not patronising gestures to raw entrants to the Bar. C Allowing the appeals, the court HELD: 1.

1 Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: Circumstances D from which an inference of guilt is sought to be drawn must be cogently and firmly established; Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability E the crime was committed by the accused and none else; and The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence.

In other words, the circumstances should F exclude every possible hypothesis except the one to be proved. [Para 46][189-G-H; 190-A-D] Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 – relied on. 1. 2 The case is one of the circumstantial evidence as there G was no eye witness of the occurrence. It is 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 the complete chain of events and circumstances which definitely points towards the involvement H 166 SUPREME COURT REPORTS [2022] 5 S. C. R. A and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness 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 expected principles in that regard.

[Para 47][190-D-F] B 2. 1 The conditions necessary for the applicability of Section 27 of the Act are broadly as : (i) Discovery of fact in consequence of an information received from accused; (iv) Discovery of such fact to be deposed to; (iii) The accused must be in police custody when he gave information; and (iv) So much of information as C relates distinctly to the fact thereby discovered is admissible. [Para 64][199-F-H] 2. 2 What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that “I will show you the weapon used in the D commission of offence”. This is the exact statement which could be read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon.

E Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, F it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the G commission of offence. [Para 67][201-D-G] Murli v. State of Rajasthan (2009) 9 SCC 417 : [2009] 13 SCR 378; Mohmed Inayatullah v. The State of Maharashtra AIR (1976) SC 483 : [1976] 1 SCR 715; Earabhadrappa v. State of Karnataka AIR (1983) SC H RAMANAND @ NANDLAL BHARTI v.

STATE OF UTTAR 167 PRADESH 446 : [1983] 2 SCR 552; State of Uttar Pradesh v. A Deoman Upadhyaya AIR (1960) SC 1125 : [1961] 1 SCR 14 – relied on. Pulukuri Kottaya and Others v. Emperor AIR 1947 PC 67; Dudh Nath Pandey v. State of U. P. AIR 1981 SC 911 : [1981] 2 SCR 771; Bodhraj Alias Bodha and B Others v. State of Jammu and Kashmir (2002) 8 SCC 45 : [2002] 2 Suppl. SCR 67; A. N. Venkatesh v. State of Karnataka (2005) 7 SCC 714 – referred to. 3. 1 Confessions may be divided into two classes, i. e. judicial and extra judicial. Judicial confessions are those which are made C before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his D private capacity.

It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? [Para 80][208-B-C] E 3. 2 An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The F Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession. [Para 85][212-F-G] State of Rajasthan v. Raja Ram (2003) 8 SCC 180 : [2003] 2 Suppl. SCR 445; Madan Gopal Kakkad v. G Naval Dubey and Another (1992) 3 SCC 204 : [1992] 2 SCR 921; Piara Singh and Others v.

State of Punjab (1977) 4 SCC 452 : [1978] 1 SCR 597 – relied on. Sahadevan and Another v. State of Tamil Nadu (2012) 6 SCC 403 : [2012] 4 SCR 366 – referred to. H 168 SUPREME COURT REPORTS [2022] 5 S. C. R. A 4. It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence B than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in cases resting on circumstantial evidence is not fatal by itself.

However, it is also well settled and it is trite in law that absence of motive could be a missing link of incriminating circumstances, C but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused. Thus, even if it is believed that the accused appellant had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the D person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the accused appellant but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. [Paras 87, E 90][213-D-E; 215-D] Sampath Kumar v. Inspector of Police Krishnagiri (2012) 4 SCC 124 : [2012] 2 SCR 289 – relied on. 5.

1 According to the trial court and the High Court, the explanation offered by the accused appellant in regard to the F injuries suffered by him on his head is established to be false. In such circumstances, both the courts took the view that the false explanation offered by the accused appellant is an additional link in the chain of circumstances. It is not necessary for this court to go into the issue of false explanation, said to have been offered by the accused appellant as at the most a false explanation can be G used as an additional link in the chain of evidence led by the prosecution. This issue pales into insignificance as the various links in the chain of evidence led by the prosecution having not been satisfactorily proved. [Para 92 and 100][215-H; 216-A; 218- C] H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 169 PRADESH 5. 2 It is well settled that the prosecution must stand or fall A on its own legs and it cannot derive any strength from the weakness of the defence.

Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the B links in the chain are complete and do not suffer from any infirmity. It is not the law where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court. [Para 96][217-B-C] C 5. 3 Before a false explanation can be used as an additional link, the following essential conditions must be satisfied: (i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (ii) Such circumstances points to the guilt of the accused as reasonable defence. (iii) The circumstance is in proximity to the time and situation.

If the aforesaid conditions D are fulfilled only then a Court use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. [Para 97, 98][217-D-F] Shankarlal Gyarasilal Dixit v. State of Maharashtra (1981) 2 SCC 35 : [1981] 2 SCR 384 – relied on. E Charles R. Cooper v. F. W. Slade (1857-59) 6 HLC 746 – referred to. 6. None of the pieces of evidence relied on as incriminating by the courts below, can be treated as incriminating pieces of F circumstantial evidence against the accused.

Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing G an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. [Para 116][223-F-H] H 170 SUPREME COURT REPORTS [2022] 5 S. C. R. A 7. It is by far now well-settled for a legal proposition that it is the duty of the court to see and ensure that an accused put on a criminal trial is effectively represented by a defence counsel, and in the event on account of indigence, poverty or illiteracy or any other disabling factor, he is not able to engage a counsel of his choice, it becomes the duty of the court to provide him B appropriate and meaningful legal aid at the State expense.

What is meant by the duty of the State to ensure a fair defence to an accused is not the employment of a defence counsel for namesake. It has to be the provision of a counsel who defends the accused diligently to the best of his abilities. While the quality of the C defence or the caliber of the counsel would not militate against the guarantee to a fair trial sanctioned by Articles 21 and 22 resply of the Constitution, a threshold level of competence and due diligence in the discharge of his duties as a defence counsel would certainly be the constitutional guaranteed expectation. The presence of counsel on record means effective, genuine and D faithful presence and not a mere farcical, sham or a virtual presence that is illusory, if not fraudulent. [Para 119][224-G-H; 225-A-B] Dhananjay Shanker Shetty v. State of Maharashtra (2002) 6 SCC 596 : [2002] 1 Suppl. SCR 352; Mohar E Rai and Bharath Rai v. State of Bihar AIR 1968 SC 1281 : [1968] 3 SCR 525; Lakshmi Singh and Others v.

State of Bihar (1976) 4 SCC 394; Vijay Singh and Ors. v. State of U. P. (1990) CriLJ 1510; Ashish Batham v. State of M. P. (2002) 7 SCC 317 : [2002] 2 Suppl. F SCR 146; Kishore Chand v. State of Himachal Pradesh (1991) 1 SCC 286 : [1990] 1 Suppl. SCR 105; Zahira Habibullah Sheikh (5) and Another v. State of Gujarat and Others (2006) 3 SCC 374 : [2006] 2 SCR 1081; Ranchod Mathur Wasawa v. State of Gujarat (1974) 3 SCC 581 : [1974 ] 2 SCR 72; Madhav Hayawadanrao G Hoskot v. State of Maharashtra (1978) 3 SCC 544 : [1979] 1 SCR 192; Subhash Chand v. State of Rajasthan (2002) 1 SCC 702 : [2001] 4 Suppl. SCR 163 – referred to. H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 171 PRADESH Case Law Reference A [1985] 1 SCR 88 relied on Para 48 [2009] 13 SCR 378 relied on Para 62 [1976] 1 SCR 715 relied on Para 64 B [1983] 2 SCR 552 relied on Para 64 [1961] 1 SCR 14 relied on Para 64 [1981] 2 SCR 771 referred to Para 69 [2002] 2 Suppl.

SCR 67 referred to Para 72 C (2005) 7 SCC 714 referred to Para 73 [2003] 2 Suppl. SCR 445 relied on Para 80 [2012] 4 SCR 366 referred to Para 83 [1992] 2 SCR 921 relied on Para 84 D [1978] 1 SCR 597 relied on Para 84 [2012] 2 SCR 289 relied on Para 89 [1985] 1 SCR 88 referred to Para 98 [1981] 2 SCR 384 relied on Para 105 E [2002] 1 Suppl. SCR 352 referred to Para 111 [1968] 3 SCR 525 referred to Para 112 (1976) 4 SCC 394 referred to Para 113 [2002] 2 Suppl. SCR 146 referred to Para 116 F [1990] 1 Suppl. SCR 105 referred to Para 123 [2006] 2 SCR 1081 referred to Para 124 [1974 ] 2 SCR 72 referred to Para 125 [1979] 1 SCR 192 referred to Para 127 G [2001] 4 Suppl. SCR 163 referred to Para 129 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 64-65 of 2022. H 172 SUPREME COURT REPORTS [2022] 5 S. C. R. A From the Judgment and Order dated 09. 07. 2021 of the High Court of Judicature at Allahabad, Lucknow Bench in Capital Sentence No. 01 of 2016 and Criminal Appeal No. 1959 of 2016.

S. Niranjan Reddy, Sr. Adv. , Vibhor Jain, Ms. Stuti Rai, Sahil Raveen, Ms. Akhila Palem, Mahfooz Ahsan Nazki, Advs. for the B Appellant. Adarsh Upadhyay, Anurag Kishore, Amit Singh, Ajay Prajapati, B. N. Dubey, Aman Pathak, Advs. for the Respondent. The Judgment of the Court was delivered by J. B. PARDIWALA, J. C 1. Mark Twain, the great American writer and philosopher, once said: “It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined D they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case. ” 2. These appeals, by special leave, arise out of the judgment and E order dated 09. 07. 2021 passed by the High Court of Judicature at Allahabad, Bench at Lucknow confirming the death sentence awarded to the accused appellant herein. 3.

The accused appellant has been held guilty of the offence punishable under Section 302 of the Indian Penal Code (for short, “the F IPC”). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced the accused appellant to death under Section 302 of the IPC and pay fine of Rs. 20,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year. While the Sessions Judge, Lakhimpur Kheri made a reference to the High Court for confirmation of death sentence under Section 366 of the Code of Criminal Procedure (for G short, “the CrPC”), the accused appellant preferred Criminal Appeal No. 1959 of 2016 putting in issue his conviction and sentence. The High Court dismissed the Criminal Appeal No. 1959 of 2016 filed by the accused appellant thereby confirming the death reference under Section 366 of the CrPC. H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 173 PRADESH [J. B. PARDIWALA, J. ] 4.

In such circumstances referred to above, the accused appellant A is here before this Court with the present appeals. CASE OF THE PROSECUTION 5. According to the case of the prosecution, the accused appellant Ramanand was married to Sangeeta (deceased) for the past 12 years B before the incident in question. In the wedlock, five children were born – one son and four daughters, by name Gaurav Ambedkar aged 10 years, Tulsi aged 7 years, Lakshmi aged 5 years, Kajal aged 3 years and Guddi aged one and a half month. 6. On the fateful night of the incident i. e. the intervening night st nd C between 21 & 22 of January, 2010 while the wife and four children were sleeping in the house situated at the village Basdhiya, the accused appellant is said to have mercilessly clobbered all the five to death with a sharp cutting weapon called Banka. At the relevant point of time, the son of the accused appellant was not residing with the family.

The son aged 10 years at the time of incident was residing at a different village D with one police constable. The motive behind the crime as put forward by the prosecution is the extra marital affair of the accused appellant with one married lady by name Manju. According to the prosecution, the accused appellant desperately wanted to marry Manju. Further, the wife of the accused appellant namely, Sangeeta (deceased) was highly E opposed to the relationship of her husband with Manju. In such circumstances, it is the case of the prosecution that the accused appellant decided to terminate not only his wife Sangeeta but also his four minor daughters. 7. It all started with the First Information Report (FIR) lodged by the PW-1, Shambhu Raidas, who happens to be the brother-in-law of F the accused appellant (husband of the accused appellant’s sister). The FIR came to be lodged by the PW-1, Shambhu Raidas at the Dhaurhara Police Station, District Lakhimpur Kheri on 22. 01. 2010 at 9:45 A. M.

The FIR (Ext. 40) reads thus:- “To, Station House Officer, Kotwali-Dhaurahara, District G Kheri. Sir, It is submitted that the applicant Shambhu Raidas son of Late Shri Shyam Lal Raidas is the resident of village – Naamdar Purwa, Police Station – Kotwali Dhaurahara, District Lakhimpur Kheri. Today on 22. 01. 2010 when I was present at my home then at about 6. 30 o’clock in the morning H 174 SUPREME COURT REPORTS [2022] 5 S. C. R. A my saala (brother-in-law) Ramanand Raidas son of Gobre Raidas resident of Naamdar Purwa, Hamlet-Amethi, Police Station Dhaurahara, Lakhimpur Kheri came and told that, “Last night I was sleeping with my wife & children. Then at about 1. 00 o’clock in the night someone knocked at my door, I woke up and asked who was there but none replied. Then I B went to the roof of my house and saw that four persons were standing outside the house. I switched on the torch.

I saw that that one person who was resident of village- Basadiha, Police Station Ishanaga and known to Ramanand fired on me by gun; I escaped and jumped and came down. Then one miscreant C hit on my head by the butt of a gun. I ran away and hid in the fields and saw that the miscreants climbed into my home. I saw, smoke coming out of my home. Then I ran to Behnan Purwa and told about the incident at Crusher of Khaliq and to the people at Ramnagar Lahbadi but none came ahead. I came running here”. Then I alongwith my nephew Pratap D reached the house of Ramanand and saw that the wife of Ramanand namely Sangita, aged about 35 years, daughters Tulsi aged about 7 years, Laxmi aged about 5 years, Kajal aged about 3 years and a girl child of about 1½ month had been killed and the dead bodies were burning. Then I and E Pratap started extinguishing the fire by pouring water with the aid of a bucket.

Behind us Ramanand too came to his house & home, sat in the courtyard and started warming himself in front of the fire (Aag Taapne laga). On seeing this, both of us scolded him that, “Your wife-daughters have been killed and you are sitting in the courtyard and warming F yourself before fire”. On this Ramanand got annoyed and went outside the house. The dead bodies are lying at the spot. I came to inform. Lodge the case and take legal action. ” Thumb Impression (T. I. ) Shambhu Raidas, Applicant, Shambhu G Raidas son of Late Shyam Lal Raidas, Resident of village Naamdar Purwa, Hamlet Amethi, Police Station Dhaurahara, District Khera. Date 22. 01. 2010. ” [Emphasis supplied] H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 175 PRADESH [J. B. PARDIWALA, J. ] 8. Thus, it is the case of the prosecution that after the incident the A accused appellant went straight to the house of the PW-1, Shambhu Raidas at about 6:30 in the morning.

The accused appellant is said to have informed the PW-1, Shambhu Raidas as to what had transpired at around 1 o’clock in the night. PW-1, Shambhu Raidas thought fit to inform the police and accordingly lodged the FIR as aforesaid against B four unidentified persons. 9. Upon registration of the FIR, the police started the investigation. The investigating officer carried out the inquest proceedings of all the five deceased persons. The dead bodies were sent to the Civil Hospital for post mortem. Thereafter, the investigating officer prepared a site C plan of the crime scene (Ext. 6). The post mortem reports revealed that all the five deceased had suffered incised wounds mostly on the head and the neck region. The burn injuries were certified to be post mortem, whereas the incised wounds were certified as ante mortem injuries. The cause of death assigned in all the post mortem reports is shock and haemorrhage as a result of ante mortem head injuries. D 10.

The accused appellant is shown to have been arrested by the th investigating officer on 24 of January, 2010. After the arrest and while the accused appellant was in custody, he is said to have made a voluntary statement that he would show the place where he had hidden the weapon of offence i. e. Banka and his blood stained clothes. Accordingly, the E discovery panchnama was drawn of the weapon of offence (Ext. 5). It appears that in the course of investigation, the investigating officer recorded the statements of PW-3, Baburam Hans son of Ramcharan and PW-4, Ram Kumar son of Paanchoo before whom the accused appellant is said to have made extra judicial confession. The investigating F officer also recorded the statement of the PW-1, Shambhu Raidas, the first informant and PW-2, Chhatrajpal Raidas (brother of the deceased Sangeeta). 11. At the end of the investigation, charge sheet came to be filed for the offence of murder punishable under Section 302 of the IPC.

The G Magistrate committed the case to the Court of Sessions Judge, Lakhimpur Kheri under Section 209 of the CrPC. Upon committal, the Sessions Trial No. 379 of 2010 came to be registered. 12. On 06. 07. 2010 the Additional District and Sessions Judge, Fast Track Court, Lakhimpur Kheri framed charge against the accused H 176 SUPREME COURT REPORTS [2022] 5 S. C. R. A appellant. The statement of the accused appellant was recorded. The appellant did not admit the charge and claimed to be tried. 13. The prosecution adduced the following oral evidence in support of its case: S. No. Oral Evidence – Witness B 1. PW-1 Shambhu Raidas 2. PW-2 Chhatrapal Raidas 3. PW-3 Babu Ram Hans 4. PW-4 Ram Kumar C 5. PW-5 Dr. A. K. Sharma 6. PW-6 S. I. Uma Shankar Mishra 7. PW-7 Inspector Yogendra Singh 8. PW-8 Dr. S. P. Singh D 9. PW-9 Dr. Ankit Kumar Singh 10. PW-10 H. M. Dhani Ram Verma 14. The prosecution also adduced the following documentary evidence: E S. No. Documentary Evidence 1.

Tahreer /Written Complaint [Ex. Ka-1] 2. Post-mortem report of deceased Laxmi F [Ex. Ka-2] 3. Post-mortem report of deceased Kajal [Ex. Ka-3] G 4. Post-mortem report of deceased Chhoti @ Guddi [Ex. Ka-4] 5. Discovery memorandum of murder weapon and clothes [Ex. Ka-5] H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 177 PRADESH [J. B. PARDIWALA, J. ] 6. Site plan of crime scene A [Ex. Ka-6] 7. Site plan of discovery of murder weapon [Ex. Ka-7] B 8. Charge sheet [Ex. Ka-8] 9. Seizure memo of ash-mixed and plain soil [Ex. Ka-9] C 10. Inquest Report of deceased Sangeeta Devi [Ex. Ka-10] 11. Photo lash of deceased Sangeeta [Ex. Ka-11] D 12. Police Paper No. 13 of deceased Sangeeta [Ex. Ka-12] 13. Specimen seal regarding deceased Sangeeta [Ex. Ka-13] E 14. Letter to Reserve Inspector regarding deceased Sangeeta [Ex. Ka-14] 15. Letter to C. M. O. regarding deceased Sangeeta [Ex. Ka-15] F 16. Inquest Report of deceased Km. Tulsi [Ex. Ka-16] 17. Photo lash of deceased Km. Tulsi [Ex. Ka-17] G 18.

Specimen seal regarding deceased Km. Tulsi [Ex. Ka-18] 19. Letter to Reserve Inspector regarding deceased Km. Tulsi [Ex. Ka-19] H 178 SUPREME COURT REPORTS [2022] 5 S. C. R. A 20. Letter to C. M. O. regarding deceased Km. Tulsi [Ex. Ka-20] 21. Police Paper No. 13 of deceased Km. Tulsi [Ex. Ka-21] B 22. Inquest Report of deceased Km. Kajal [Ex. Ka-22] 23. Police Paper No. 13 of deceased Km. Kajal [Ex. Ka-23] C 24. Photo lash of deceased Km. Kajal [Ex. Ka-24] 25. Specimen seal regarding deceased Km. Kajal [Ex. Ka-25] D 26. Letter to Reserve Inspector regarding deceased Km. Kajal [Ex. Ka-26] 27. Letter to C. M. O. regarding deceased Km. Kajal E [Ex. Ka-27] 28. Inquest Report of deceased Km. Laxmi [Ex. Ka- 28] 29. Photo lash of deceased Km. Laxmi F [Ex. Ka-29] 30. Police Paper No. 13 of deceased Km. Laxmi [Ex. Ka-30] 31. Specimen seal regarding deceased Km. Laxmi G [Ex. Ka-31] 32. Letter to Reserve Inspector regarding deceased Km. Laxmi [Ex. Ka-32] H RAMANAND @ NANDLAL BHARTI v.

STATE OF UTTAR 179 PRADESH [J. B. PARDIWALA, J. ] 33. Letter to C. M. O. regarding deceased Km. Laxmi A [Ex. Ka-33] 34. Inquest Report of deceased Km. Chhoti [Ex. Ka-34] B 35. Photo lash of deceased Km. Chhoti @ Guddi [Ex. Ka-35] 36. Police Paper No. 13 of deceased Km. Chhoti @ Guddi [Ex. Ka-36] C 37. Specimen seal regarding deceased Km. Chhoti @ Guddi [Ex. Ka-37] 38. Letter to Reserve Inspector regarding deceased Km. Chhoti @ Guddi D [Ex. Ka-38] 39. Letter to C. M. O. regarding deceased Km. Chhoti @ Guddi [Ex. Ka-39] 40. Chik FIR E [Ex. Ka-40] 41. Copy of general diary [Ex. Ka-41] F 42. Post-mortem report of deceased Tulsi [Ex. Ka-42] 43. Post-mortem report of deceased Sangeeta [Ex. Ka-43] G 44. Medical examination report of the accused [Ex. Ka-44] 15.

After completion of the oral as well as documentary evidence, the statements of the accused appellant under Section 313 of the CrPC were recorded in which the accused appellant stated that he was innocent H 180 SUPREME COURT REPORTS [2022] 5 S. C. R. A and had been falsely implicated in the alleged crime. The accused appellant took the defence that few individuals of a rival party had committed the murder of his wife and daughters as Sangeeta (deceased) was the sole eye witness to the murder of the brother of the accused appellant. The trial against the accused persons who had killed the brother of the accused appellant was pending at that point of time. The rival B party wanted to terminate Sangeeta and for that reason, four individuals nd came to his house at about 1 o’clock in the night of 22 of January, 2010 and mercilessly killed all his five family members and thereafter set the bodies on fire. The trial court disbelieved such defence of the accused appellant. C 16.

At the conclusion of the trial, the Trial Judge convicted the accused appellant for the offence under Section 302 of the IPC and sentenced him to death relying upon the following incriminating circumstances: (i) Discovery of weapon of offence and blood-stained clothes D at the instance of the accused appellant. (ii) Extra Judicial confession of the accused appellant before two prosecution witnesses. (iii) Strong motive to commit the crime. E (iv) False explanation at the instance of the accused appellant and his unnatural conduct. 17. The appeal filed by the accused appellant in the High Court also failed and was ordered to be dismissed. 18. Being dissatisfied, the accused appellant has come up with F the present appeals. SUBMISSIONS ON BEHALF OF THE ACCUSED APPELLANT 19. Mr. S.

Niranjan Reddy, the learned senior counsel appearing G for the accused appellant vehemently submitted that both, the trial court and the High Court committed a serious error in holding the accused appellant guilty of the offence of murder of his wife and four minor daughters. He would submit that in the course of the trial the prosecution failed to lead any credible evidence to connect the accused appellant with the alleged crime. Mr. Reddy vehemently submitted that both the H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 181 PRADESH [J. B. PARDIWALA, J. ] Courts below ought not to have accepted the evidence of PW-3, Babu A Ram Hans and PW-4, Ram Kumar resply so as to believe the extra judicial confession alleged to have been made by the accused appellant before them. Mr. Reddy submitted that both the Courts below should have discarded the evidence of discovery of weapon and the blood-stained clothes as the prosecution has not been able to prove the authorship of B concealment.

He would submit that in a case of circumstantial evidence, the prosecution is required to establish the continuity in the links of the chain of the circumstances so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. C 20. Mr. Reddy vociferously submitted that the PW-3 and PW-4 resply are ‘got up’ witnesses. The evidence in the form of extra judicial confession is nothing but a fabricated piece of evidence at the instance of the investigating officer just with a view to bolster up the case of the prosecution in the absence of any direct evidence. He would submit that D both these prosecution witnesses are absolutely unreliable. 21. Mr. Reddy submitted that in a case which is based on circumstantial evidence, motive plays an important role. He would submit that the prosecution has not been able to prove the motive behind the crime.

The extra marital affair of the accused appellant with Manju and E the desire of the accused appellant to marry Manju at any cost has been put forward as the motive behind the crime. However, there is no cogent and credible evidence in that regard. He would submit that even otherwise an accused cannot be convicted and sentenced to death only on the circumstance of motive. F 22. Mr. Reddy would submit that the prosecution has not been able to explain the injuries suffered by the accused in any manner. He would submit that on the contrary, it is the accused who has been able to explain how he suffered the injuries on his head and chest while putting forward his defence before the High Court in his statement G recorded under Section 313 of the CrPC. Having noticed that the accused appellant had suffered injuries on his head and was bleeding, the accused appellant along with one police constable was sent for medical examination at the District Hospital, District Kheri.

The accused appellant was taken to the hospital by a constable viz. Brij Mohan Singh, Dhaurhara, District Kheri. The PW-9, Dr. Ankit Kumar Singh has issued a medical certificate H 182 SUPREME COURT REPORTS [2022] 5 S. C. R. A Ext. 44 stating the nature of the injuries noticed on the body of the accused appellant. 23. Mr. Reddy further submitted that once the extra judicial confession alleged to have been made before the two prosecution witnesses i. e. the PW-3 and PW-4 resply and the evidence of the discovery B of the weapon of offence is discarded and eschewed from consideration, then nothing remains in the case of the prosecution. 24. Lastly, Mr. Reddy would submit that howsoever unnatural one may find the conduct of the accused after the alleged crime, the same, by itself, is not sufficient to convict the accused for an offence C like murder. In such circumstances referred to above, Mr. Reddy prayed that there being merit in his appeals, those may be allowed.

He prayed that the order of conviction and death penalty be set aside and the appellant may be acquitted of the charge of murder. SUBMISSIONS ON BEHALF OF THE STATE D 25. Mr. Adarsh Upadhyay, the learned counsel appearing for the respondent-State of Uttar Pradesh has on the other hand vehemently opposed the appeals. He would submit that no error, not to speak of any error of law, could be said to have been committed by the Courts below in holding the accused appellant guilty of the offence of murder and imposing death penalty upon him for the gruesome murder of five of his E family members. He would submit that there is no good reason to disbelieve the evidence of PW-3, Babu Ram Hans and PW-4, Ram Kumar resply before whom the accused appellant made the extra judicial confession. He further submitted that there is no good reason to even disbelieve the discovery of the weapon of offence at the instance of the F accused appellant.

He would submit that over and above the two incriminating circumstances in the form of extra judicial confession and the discovery of weapon of offence, there was a strong motive for the accused appellant to commit the crime. 26. Mr. Upadhyay vehemently submitted that the accused appellant G desperately wanted to get married to Manju and his wife Sangeeta (deceased) was coming in his way. The accused appellant decided not only to terminate his own wife but also mercilessly killed four of his innocent minor daughters so that he may not have to take care of them after marrying Manju. He would submit that it is one of the most heinous and gruesome crimes committed by the accused appellant. H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 183 PRADESH [J. B. PARDIWALA, J. ] 27. He further submitted that the prosecution is not obliged to A explain the injuries suffered by the accused appellant as those injuries were found to be superfluous in nature.

The prosecution is obliged to explain the injuries suffered by an accused, if any, only if such injuries are grievous in nature which may throw a considerable doubt on the very genesis or the origin of the case of the prosecution. He would B submit that the defence of the accused appellant that four unidentified persons were the assailants stands falsified by his own unnatural conduct. Mr. Upadhyay would submit that the accused appellant has not been able to explain in what circumstances the smell of kerosene was coming from his clothes as deposed by the witnesses and the doctor. He would argue that if out of fear he had escaped from his house and ran away, C then how he came in contact with kerosene. He would submit that the case of the accused appellant that one of the unidentified persons fired a shot from a firearm is also falsified as no cartridge or any pellets were recovered from the place of occurrence. 28. Mr.

Upadhyay would submit that the scope of the present D appeals filed under Article 136 of the Constitution is very limited. It is only in exceptional circumstances that this Court may disturb the concurrent findings of guilt recorded by the trial court and High Court respectively. He would submit that the view taken by the trial court and the High Court is correct and in no manner the appreciation of evidence E could be termed as perverse. 29. In such circumstances referred to above, Mr. Upadhyay prays that there being no merit in the appeals filed by the accused appellant, those may be dismissed. ORAL EVIDENCE ON RECORD F 30. The PW-1, Shambhu Raidas is the first informant. He happens to be the brother-in-law of the accused appellant i. e. husband of the accused appellant’s sister. On 22. 01.

2010 while he was at his house, the accused appellant is said to have visited him at 6:30 in the morning and was informed that at 1 o’clock in the night four unidentified persons G knocked at his door. The accused appellant woke up and enquired who was it. As no one replied, the accused appellant went on the roof of his house and saw four persons standing outside his house. The accused appellant is said to have seen those four persons under the light of a torch. The accused appellant informed the PW-1 that one of the persons H 184 SUPREME COURT REPORTS [2022] 5 S. C. R. A was from the village Basadiha. One among the four persons fired at the accused appellant. The accused appellant is said to have jumped from the roof top. At that point of time, one of the four hit the accused appellant on his head with the butt of the gun. The accused appellant thereafter ran away towards a farm. The accused appellant is said to have witnessed those persons entering into his house from a distance.

After sometime, B he noticed smoke coming out of his house. The accused appellant went to Behnanpurwa, Khalikpurwa and Lahki for help but he was not able to procure any help. PW-1 has deposed that after the accused appellant narrated the entire incident, he himself along with one Pratap reached the house of the accused appellant. The accused appellant also C accompanied the PW-1, Shambhu Raidas and Pratap. When the PW- 1 reached the house of the accused appellant, he saw the dead bodies of Sangeeta and the four daughters burning. PW-1 with the help of Pratap started to douse the fire with water. PW-1 has deposed that while he himself and Pratap were trying to douse the fire, the accused appellant took out his blood stained baniyaan (vest) and threw it in the D fire. The accused appellant thereafter started warming his body. On seeing this, the PW-1 got annoyed and told the accused appellant that how could he sit beside the fire when his wife and children had been killed.

The PW-1, Shambhu Raidas thereafter went to the Dhaurhara Police Station and lodged the FIR. In the FIR, he named four unidentified E persons as the suspects. The PW-1 has further deposed about the illicit relationship of the accused appellant with Manju. He has deposed that while the accused appellant was married to Sangeeta, he decided to get married to Manju. The engagement ceremony of Manju with accused appellant Ramanand was also performed. However, before the accused appellant could get married to Manju, he came to be arrested in F connection with one offence registered against him under Section 307 of the IPC. He has deposed that Sangeeta (deceased) was highly opposed to the idea of her husband Ramanand getting married to Manju. He has further deposed that the accused appellant killed his wife and four children in the hope that he may receive some monetary compensation from the G Government.

In his cross examination, the PW-1 has deposed that his house is at a distance of one kilometre from the house of the accused appellant. When the accused appellant reached his house at 6:30 in the morning on the day of the incident, the PW-1 found the accused appellant in lot of tension. In his cross examination, he has categorically deposed rd that he was at the police station up to 2 o’clock in the night i. e. upto 23 H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 185 PRADESH [J. B. PARDIWALA, J. ] of January, 2010 at 2 A. M. He has deposed in so many words that the A accused appellant Ramanand was also with him at the police station all throughout. He has deposed that while he left the police station, Ramanand – accused appellant was not allowed to leave the police station. He has deposed that Ramanand was challaned by the police on the third day, till then Ramanand was continuously staying at the police station. B 31.

What emerges from the evidence of the PW-1 is that after the incident, the accused appellant visited his house at 6:30 in the morning and narrated as to what had happened. PW-1 along with one Pratap thereafter reached the house of the accused appellant and saw the dead bodies of Sangeeta and four minor daughters burning. PW-1 tried C to douse the fire by pouring water on the dead bodies with the help of Pratap. PW-1 has deposed about the illicit relationship of the accused appellant with Manju. However, what is important in the evidence of the PW-1 is that from the time the PW-1 reached the police station till the last the accused appellant was at the police station under the surveillance of the police. D 32. The prosecution has examined the PW-2, Chhatrapal Raidas. The PW-2 happens to be the brother of the deceased Sangeeta Devi. In his examination in chief, he has deposed about the extra marital affair of the accused appellant with Manju.

He has also deposed that ten days before the incident, Sangeeta had visited his house and had narrated E about the harassment that was meted towards her by the accused appellant. In his cross examination, he has deposed that he came to know about the incident at 7 o’clock in the morning through Ramanand. According to the PW-2, Ramanand had visited his house and was informed that his wife and four children were burning in the house. F According to the PW-2, the accused appellant saying so left his house. The PW-2 has further deposed in his cross examination that Pratap and PW-1, Shambhu Raidas were to be seen at the house of the accused appellant dousing the fire with water. He has deposed that villagers were standing outside the house of the accused appellant. He has deposed that the clothes of Ramanand were soaked with blood. After sometime, G the Police Inspector reached the place of incident. The PW-2 has deposed that between 8 A. M. and 9 A. M.

the police took the accused appellant to the police station. He has deposed that within no time, it was confirmed that none else but Ramanand- accused appellant was the assailant. H 186 SUPREME COURT REPORTS [2022] 5 S. C. R. A 33. What emerges from the evidence of the PW-2 is that the accused appellant was in an extra marital relationship with Manju and desperately wanted to get married to Manju. Because of the extra marital affair, Sangeeta was being harassed by the accused appellant. However, what is important to note in the evidence of the PW-2 is that Ramanand had visited his house also at 7 o’clock in the morning. The PW-2 also B saw Pratap and PW-1, Shambhu Raidas at the house of the accused appellant trying to douse the fire with water. One important feature of the deposition of the PW-2 is that the accused appellant was taken away by the police between 8 A. M. and 9 A. M. on the day of the incident. 34.

The prosecution has examined the PW-3, Babu Ram Hans to C prove the extra judicial confession. The PW-3 in his examination in chief has deposed that on 23. 01. 2010 while he was at his house, the accused appellant came about 9 o’clock in the morning and informed about the incident. According to the PW-3, the accused appellant is said to have confessed before him of having brutally killed his wife and four D minor children. According to the PW-3, the accused appellant sought his help as the PW-3 was a leader of the BSP ruling party at the relevant point of time. However, the PW-3 declined to help the accused appellant in any manner. The PW-3 has deposed that he had narrated to the police inspector about the confession said to have been made before him by the accused appellant and his statement was also recorded by the police. E The PW-3 in his cross examination has deposed that his village is at the distance of 30 to 35 kilometres from Naamdar Purwa. 35.

We shall explain as to how we are not inclined to believe the evidence of the PW-3, Babu Ram Hans a little later in our judgment. 36. The prosecution has examined the PW-4, Ram Kumar son of F Paanchoo. It is the case of the prosecution that even before the PW- 4, the accused appellant had made an extra judicial confession about the crime. The PW-4 in his examination in chief has deposed that at the relevant time, he was the member of the District Panchayat of BSP. He has deposed that on the very day i. e. 22. 01. 2010 at 6:30 in the morning G Ramanand came to his house and informed that his wife and children had been assaulted and set on fire. The PW-4 told the accused appellant that he would help him provided he would tell the truth. According to the PW-4, thereafter the accused appellant confessed before him that he had killed his wife and children as he wanted to marry Manju and his wife Sangeeta was opposing him to get married. He has further deposed H RAMANAND @ NANDLAL BHARTI v.

STATE OF UTTAR 187 PRADESH [J. B. PARDIWALA, J. ] in his examination in chief that when he reached the village of the A accused appellant, he saw that the son of Ramanand was sitting on Ramanand’s lap and Ramanand was crying and talking to his son saying that he had killed his mother and sisters. In his cross examination, he has deposed that when the accused appellant visited his house at 6:30 in the morning, he noticed that there was blood on his shirt and pant. He B has further deposed in his cross examination that he had informed the police officers that the accused appellant had visited his house at 6:30 in the morning. 37. What emerges from the evidence of the PW-4 is that on 22. 01. 2010, the accused appellant had visited the house of the witness C at 6:30 in the morning and made an extra judicial confession about the alleged crime before him. We are not prepared to even believe the testimony of the PW-4.

We shall assign reasons a little later as to why we are not ready to believe the PW-4, Babu Ram Hans. 38. The prosecution has examined the PW-5, Dr. A. K. Sharma D who conducted the post mortems of the deceased Lakshmi, Kajal and Chhoti @ Guddi resply. Dr. Sharma in his examination in chief has deposed that on 23. 01. 2010, he was posted as a radiologist at the District Mahila Chikitsalaya, Lakhimpur. On that day, three dead bodies were brought to the hospital for post mortem. He has deposed that he had performed the post mortems of all the three dead bodies. He has recorded the E injuries noticed by him in the post mortem reports of each of the three deceased persons. According to Dr. Sharma, the cause of death of all the three deceased persons was shock and haemorrhage as a result of the ante mortem injuries. He has deposed that he also noticed post mortem burn injuries on all the three dead bodies.

He has deposed that the injuries F could have been caused by a sharp-edged weapon like Banka. 39. Nothing turns around so far as the evidence of the PW-5, Dr. A. K. Sharma is concerned. 40. The prosecution has examined the PW-6, Uma Shankar Mishra. At the relevant time, the PW-6, Uma Shankar Mishra was G serving as the Sub-Inspector, Chowki in-charge Bahjam, Police Station th Neem Gaon, District Lakhimpur Kheri. He has deposed that on 24 of November, 2010, he was posted at the Dhaurhara Police Station. According to him, the accused appellant was arrested on 24. 11. 2010 and was taken in custody. While in custody, the accused H 188 SUPREME COURT REPORTS [2022] 5 S. C. R. A appellant is said to have made a statement on his own free will and volition to show the place where he had hidden the weapon of offence i. e. Banka and his blood stained clothes.

According to the PW-6, upon such statement being made by the accused appellant, he along with the investigating officer, PW-7 left for the place as led by the accused appellant. On the way, the PW-6 is said to have picked up PW-2, Chhatrapal son of B Rameshwar and Pratap son of Asharfi Lal, both residents of Naamdar Purwa to act as the panch witnesses for the purpose of drawing the discovery panchnama. According to the PW-6, the accused appellant led the police party to a coriander field and took out the weapon of offence i. e. Banka and also the blood stained clothes. The discovery C panchnama was accordingly drawn under Section 27 of the Evidence Act, 1872. We do not propose to look into the cross examination of the PW-6 as there is hardly anything in the cross examination and not relevant for our purpose. 41. The prosecution has examined the PW-7, Inspector Yogendra D Singh as the investigating officer.

The PW-7 in his examination in chief has deposed that he had recorded the statements of the PW-2, Chhatrapal Raidas and others on 23. 01. 2010. He has deposed that he arrested the accused appellant on 24. 01. 2010. He has deposed that he recorded the statements of the PW-3 and PW-4 resply on 25. 01. 2010. Nothing turns around in the cross examination of the PW-7, Yogendra Singh. E 42. It is not necessary for us to discuss the evidence of the PW-8 Dr. S. P. Singh. Dr. Singh had performed the post mortems of the deceased Tulsi and Sangeeta. 43. The prosecution has examined the PW-9, Dr. Ankit Kumar Singh. According to the PW-9, the accused appellant was brought at F the C. H. C. Dhaurhara on 22. 01. 2010 at 10:30 in the morning for medical examination. He has deposed that on 22. 01. 2010 he was in-charge Medical Officer at the C. H. C. Dhaurhara. He has deposed that the accused appellant Ramanand was brought at the C. H. C.

Dhaurhara by Constable Brij Mohan Singh of Police Station Dhaurhara along with a G police yadi. During the medical examination of the accused appellant, he noticed the following injuries on the body of the accused appellant: “1. Lacerated wound 2 cm x 0. 5 cm on left side of head, 10 cm above left ear. H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 189 PRADESH [J. B. PARDIWALA, J. ] 2. Lacerated wound 5 cm x 0. 5 cm on middle of the head; 2 cm A away from Injury 1. 3. Lacerated wound 4. 5 cm x 0. 5 cm on middle of the head; 1 cm away from Injury No. 2. 4. Superficial burn injury on left side of neck in length 8 cm x 6 B cm. 5. Superficial burn injury on right side of neck in length 10 cm x 7 cm. ” 44. Dr. Singh has further deposed that all the injuries were simple in nature and fresh. During the medical examination, the clothes of the C accused appellant were smelling of kerosene oil. In the cross examination of Dr. Singh, he has deposed that the injuries Nos.

1, 2 and 3 resply noted during the medical examination of the accused appellant could have been caused with the butt of a gun. He has deposed that the injury Nos. 4 and 5 resply could have been suffered by the accused appellant while D trying to rescue. He has deposed that at the time of medical examination of the accused appellant, there was no fresh bleeding from the wounds. At the time of cleaning the wounds with cotton, the blood started to ooze. He has deposed that the injuries could not have been 12 hours old. PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE E 45. In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence.

According to him, in every case, of circumstantial evidence, there are always at least two facts to be F considered: a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed or proposed to be proved; & b) The Factum probans or the evidentiary fact (the fact from G the existence of which that of the factum probandumis inferred). 46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows: H 190 SUPREME COURT REPORTS [2022] 5 S. C. R. A 1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; B 3.

The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4. The circumstantial evidence in order to sustain conviction C must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. D 47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence.

It is 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 the complete chain of events and circumstances which definitely points towards the E involvement and guilty of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness 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 expected principles in that regard. F 48. A three-Judge Bench of this Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, held as under: “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 G rests on circumstantial evidence alone.

The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 191 PRADESH [J. B. PARDIWALA, J. ] for instance, the cases of Tufail (Alias) Simmi v. State of Uttar A Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : B 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 C 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 D 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: E (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 F 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 Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made : [SCC para 19, p. 807 : SCC (Cri) G p. 1047] 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. ” H 192 SUPREME COURT REPORTS [2022] 5 S. C. R.

A (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 B 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 C 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 D evidence. ” 49. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. and J. W. Johnson and Co.

1872, it has been explained as under: “In matters of direct testimony, if credence be given to the E relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection F between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. ? ’” G The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word” presumption,” ex vi termini, imports an inference from facts; and the adjunct “presumptive,” as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference.

Circumstances H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 193 PRADESH [J. B. PARDIWALA, J. ] generally, but not necessarily, lead to particular inferences; A for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. B The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad C absurdum. ” 50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential.

The inference is drawn from the established facts as the D circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis E of the guilt of the accused. ANALYSIS OF THE INCRIMINATING CIRCUMSTANCES RELIED UPON BY THE TRIAL COURT AND THE HIGH COURT DISCOVERY OF WEAPON OF OFFENCE AND F BLOOD-STAINED CLOTHES 51. It is the case of the prosecution that on 24. 01. 2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime.

After the arrest of the accused appellant and while he being in the custody at the G police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his blood-stained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set H 194 SUPREME COURT REPORTS [2022] 5 S. C. R. A forth for the place as led by the accused. There is something very unusual, that we have noticed in the oral evidence of the investigating officer. According to him while the police party along with the accused were on their way, all of a sudden, the investigating officer realized that he should have two independent witnesses with him for the purpose of drawing the panchnama of discovery.

In such circumstances, while on the way the B investigating officer picked up PW-2, Chhatarpal Raidas and Pratap to act as the panch witnesses. According to the investigating officer the accused led them to a coriander field and from a bush he took out the weapon of offence (Banka) and the blood-stained clothes. The weapon of offence and the blood-stained clothes were collected in the presence C of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i. e. , the weapon & clothes at the instance of the accused as one of the incriminating D circumstances in the chain of other circumstances. We shall explain here below why we are saying so. 52. Section 27 of the Evidence Act, 1872 reads thus: “27.

How much of information received from accused may be proved. —Provided that, when any fact is deposed to as E discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. ” F 53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at G the police station itself.

Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 195 PRADESH [J. B. PARDIWALA, J. ] rather the exact words uttered by the accused should be incorporated A in the first part of the panchnama that the investigating officer may draw in accordance with law.

This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing B his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular C place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama.

This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence D of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter. 54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at E the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment.

The fourth reason to discard the evidence of the discovery is that although one of F the panch witnesses PW-2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution G for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or H 196 SUPREME COURT REPORTS [2022] 5 S. C. R.

A if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth. B 55. Applying the aforesaid principle of law, we find the evidence of the investigating officer not only unreliable but we can go to the extent to saying that the same does not constitute legal evidence. 56. The requirement of law that needs to be fulfilled before C accepting the evidence of discovery is that by proving the contents of the panchnama.

The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the D evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW-7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the E investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh. 5).

There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch F witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact G statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. H RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 197 PRADESH [J. B. PARDIWALA, J. ] 57. Let us see what has been exactly stated in the discovery A panchnama (Exh. 5) drawn on 24. 01. 2010.

We quote the relevant portion as under: “Today on 24. 1. 2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of- Naamdar Purwa, Hamlet- Amethi, original resident of village- B Basadhiya, Police Station- Isanagar, District- Lakhimpur Kheri has been taken out of the lock-up, taken in confidence and then interrogated by me- the Station House Officer Yogendra Singh before Hamrah S. S. I. Shri Uma Shankar Mishra, S. I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 C Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, “I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station- Tambaur, District- Sitapur D regarding whereof the detailed statement has been recorded by you.

The baanka used in the incident and the pant-shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can E get recovered by going there. ” In expectation of recovery of murder weapon and blood-stained clothes, I- the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat F No. - 7 time 07. 15…” [Emphasis supplied] 58. We shall now look into the oral evidence of the PW-7, Investigating Officer wherein, in his examination in chief, he has deposed as under: G “In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22. 1. 10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H.

Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I H 198 SUPREME COURT REPORTS [2022] 5 S. C. R. A inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka-6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23. 1. 10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24. 1. 10, I arrested accused Ramanand B and recorded his statement and when he expressed that - he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealed-stamped at the spot and its recovery memo had been prepared at the spot C itself, which is present on record as Exhibit Ka-5…. ” [Emphasis supplied] 59.

We shall also look into the oral evidence of the PW-6, Uma Shankar Mishra who at the relevant point of time was serving as a Sub-Inspector Chowki In-charge Bahjam, Police Station. It appears that D the PW-6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under: “On 24. 11. 2010, I was posted at Police Station-Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station-Dhaurahara, domicile of village Basadhiya, Police E Station- Isha Ganj, District- Kheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then In-charge Inspector and followers S. I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co.

Shravan Kumar, and interrogated by the Incharge Inspector in my F presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pant-shirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, G carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a. m dated 24. 01. 2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet- Amethi for the purpose of recovery. ” H [Emphasis supplied] RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR 199 PRADESH [J. B. PARDIWALA, J. ] 60. From the aforesaid two things are quite evident. In the original A panchnama (Exh.

5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW-7, investigating officer & PW-6, Sub-Inspector the exact statement has not been deposed, more particularly w

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