Nempal vs State Of U.P.
2014 Latest Caselaw 8641 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 46
 

 
Case :- CAPITAL CASES No. - 3582 of 2014
 

 
Appellant :- Nempal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Babu Sharma
 
Counsel for Respondent :- Govt.Advocate
 
Along with
 
Reference No. 9 of 2014
 

 
Hon'ble Amar Saran,J.

Hon'ble Vipin Sinha,J.

(Delivered by Hon'ble Amar Saran, J).

This criminal capital appeal along with connected criminal reference arise from the judgement of the Additional Sessions Judge ( Court no.15), Bulandshahar dated 28.8.2014 convicting and sentencing the appellant to death sentence, under section 302 I.P.C together with fine of Rs. 20,000/. In default of payment of fine, the appellant is to undergo an additional sentence of one year. Under section 376 I.P.C, the appellant has been convicted to imprisonment for life and fine of Rs. 10,000/. In default of payment of fine, the appellant has to undergo an additional sentence of six months.

The prosecution case as disclosed in the F.I.R (Ext. Ka 11), lodged by informant PW-1 Dambar Singh at police station Dibai on 14.2.2011 at 9.30 a.m was that his daughter Km. Manju had gone on 12.2.2011 at about 6.00 p.m with another girl Pinki to her wheat field for attending to their cattle but she did not return. A search was made for her during the night and on 14.2.2011, Manju's corpse was found in the middle of the mustard field of Pratap Singh in the informant's village Galibpur by the informant, his son Virendra and co-villagers. In the morning, the informant Dambar Singh and his son Virendra had discovered the dead body in the mustard field of Pratap Singh and that a rope was tied around the neck of the deceased and some blood was coming out from her private parts. Some one had committed the rape and then murdered the deceased. On the basis of the FIR dated 14.2.2011, a case was registered at case crime No. 57 of 2011, under sections 376/302 I.P.C at 9.30 a.m against some unknown persons.

On 15.2.2011, after the informant Dambar was informed by Nannu Singh PW-2 and Ramveer residents of Galibpur that on 12.2.2011, they had seen Manju going along with appellant Nempal at 7.00 p.m towards the fields and Nempal was catching hold of Manju's hand and they were going in the direction of Pratap Singh's mustard field. Nannu and Ramveer thought that Nempal being a co-villager might have been walking with Manju for no particular reason. On receiving this information the informant became suspicious that Nempal had raped and murdered Manju and he had moved the application on 15.2.2011 (Ext. ka 11A) for stringent action against Nempal.

The S.O of P.S. Dibai, Ravindra Kumar Singh PW-5 had reached the spot on 14.2.2011 and inspected it on the pointing out of the information and prepared the site plan( Ext. Ka-3). He had also collected plain and blood stained earth from the spot and prepared its recovery memo ( Ext. Ka-4). The inquest was conducted by SI Prahlad Singh and the body was sent for post-mortem through constable Jitendra Singh.

The autopsy was conducted on the dead body by PW-3 Dr. Vinod Kumar on 14.2.2011 at 4.30 p.m. The deceased was aged 9 years. The rigor mortis had passed out from  the upper portion of the body but it was present in the lower portion. The time since death was about two days and according to the doctor, there could be a variance of six hours on either side in the time of death. The smear slide of the vaginal smear of Manju was given to the constable for pathological examination.

The following ante-mortem injuries were seen:

1.A ligature mark size 4.0 x 3.0 cm all around the neck, under neath soft tissue found white and echhymosis present. On exploration hyoid bone found fractured.

2.Abrasion size 2.0 x 1.0 cm on right side of upper face of zygomatic region.

3.Lacerated wound in vaginal canal size 6 x 4 cm x cavity deep. Hymen membrane found ruptured blood scab present.

Pleura, right and left lungs, heart liver, spleen, kidney were congested. Stomach contained 150 gms semi-digested material and large and small intestine contained gases and semi-digested food and feacal matter. According to the doctor, the cause of death was due to strangulation and asphyxia as a result of ante-mortem neck injury.

Four witnesses of fact viz Dambar Singh PW-1 informant and father of the deceased, PW-2 Nannu Singh, who is a witness of last seen, PW-4 Ram Gopal, who is a witness of extra-judicial confession and PW-7 Pinki who had accompanied the deceased to the wheat field have been examined in this case.

Apart from the four witnesses of fact, PW-3 Dr. Vinod Kumar, who has conducted the post-mortem on the dead body as described above, PW-5 SSI, Ravindra Kumar Singh, who was the I.O of this case and PW-6 Constable Santosh Kumar, who had prepared the check FIR have also been examined.

PW-1 Dambar Singh has reiterated his version in the FIR (Ext.Ka-1) dated 14.2.2011 and the application dated 15.2.2011 (Ext. Ka-11-A). He stated that the deceased Km. Manju had gone with Pinki, daughter of Deoraj in the evening of 12.2.2011 at 6 or 6.30 p.m to the field for attending to her cattle. When the deceased did not return till night, a search was made for her in the jungle. On 14.2.2011, the dead body of Manju was found by the informant and his son Virendra and co-villagers Mahendra etc in the mustard field of Pratap Singh. A rope was tied on her neck and there was some blood coming out from her private parts. A large number of villagers had collected there. After the corpse of Manju was found then Nannu Singh PW-2, Ramveer Singh and other co-villagers had informed him that on 12.2.2011, they had seen his daughter Km. Manju going in the company of the appellant Nempal at 7.00 p.m towards the mustard field of Pratap Singh. Nempal was catching hold of Manju's hand. According to Dambar Singh, Nempal had raped and then committed the murder of Manju. In his cross examination Dambar Singh stated that Nannu Singh was his nephew, being the son of his real brother Horam Singh. He had made a search for his daughter amongst his relations, who had gathered there. The police had reached the spot after one hour of his report on 14.2.2011 at 10.30 a.m. On the next day on 15.2.2011, the police had caught hold of the appellant Nempal and had taken him to the police station. He also admitted that the police had detained Nempal till 21.2.2011 and had challaned him on that date.

PW-2 Nannu Singh has deposed that the appellant Nempal was his co-villager. On 12.2.2011 at about 7.00 p.m, when he was returning from the field of his brother Ramveer, he saw Nempal catching hold of the hands of Manju and going in the direction of the mustard field of Pratap Singh and he thought that Nempal might be taking her away any where as she was a little girl. He did not entertain any suspicion at that time against Nempal. Nannu Singh and Ramveer then returned home. On the next morning, they had gone to their relation's place. On 14.2.2011, he was telephonically informed that Manju's corpse had been discoveredin the village. Then Ramveer and Nannu Singh returned to the village Galibpur and disclosed all these facts to Dambar Singh. In his cross examination, he admitted that Dambar Singh was his uncle and that their houses were 50 meters apart. First he denied that no body went in the night of 12.2.2011 to search for Manju but then he clarified that he had not gone. Nannu Singh claims not to have heard anyone mentioning that Dambar Singh's daughter was missing. He even denied that any search was made for Manju. He had left for village Bari to attend a marriage of some relation. He admitted that on 13.2.2011, all the persons were informed regarding Manju having gone missing, but he learnt about it in the morning of 14.2.2011. He further disclosed that on 13.2.2011 he had not told anyone that he had seen Nempal catching hold of Manju. On 14.2.2011 at 8.13 a.m, he learnt on his Mobile No. 9759470102 that the corpse of Manju had been found and within ten minutes he left for his village by motorcycle. When he arrived in the village, the police was present and were engaged in some writing work with regard to the corpse. He admitted that Nempal had been arrested by the police on 15.2.2011 but he was not aware whether he was detained at the police station till 21.2.2011.

PW-4 Ram Gopal deposed that Manju was his niece by relationship. On 12.2.2011 at about 6.30 p.m after Manju's disappearance on 12.2.2011, a search was made for her by these witnesses Dambar Singh, Himmat Singh, Ramveer, Nannu Singh and other co-villagers. They had reached Pratap Singh's field, where they saw that Manju's corpse was lying in the mustard field. Nempal was hiding there. He then caught hold of Nempal who admitted to his mistake but the public got him freed. On 14.2.2011, the police had come to the village and had taken away the body for post-mortem. He affirmed his 161 Cr.P.C statement. In the cross examination, he stated that in the morning of 14.2.2011 when they were searching for Manju, they saw Nempal hiding near the place where the corpse of Manju was lying. Then this witness Ram Gopal stated that he along with Ramveer, Nannu and others caught hold of the appellant Nempal. The appellant Nempal had freed himself and run away. On 14.2.2011, the appellant Nempal had apologized his mistake. He had met the I.O on the same day and had told him all these facts.

PW-7 Km. Pinki aged 10 years was first examined by the learned Trial Judge regarding her capacity to understand the need of stating the truth and her capacity to depose. Thereafter, she had deposed that she knew Manju, daughter of Dambar Singh. She had gone along with Manju to ease themselves. After easing themselves, Manju had told her to go back home and she would return after attending to her cattle. Then she had come back alone. In the cross examination, she had stated that she had gone at about 7.00 p.m on the date of incident after the lights had got burnt.

The appellant in his 313 Cr.P.C statement denied the allegations against him and claimed that he has been falsely implicated on account of village parti-bandi.

We have heard Sri Ram Babu Sharma, learned counsel for the appellant. Sri Akhilesh Singh, learned Government Advocate assisted by Sri R.K. Singh and Sri Rajiv Gupta, learned A.G.A for the State.

Learned counsel for the appellant Sri Ram Babu Sharma contended that only two pieces of evidence have been adduced as circumstances for connecting the appellant with this offence. One is the circumstance of the appellant having been seen last in the company of Manju in the evening of 12.2.2011 at 7.00 p.m but according to the witness of last seen Nannu Singh, this fact was not disclosed till 15.12.11, after the body was discovered on 14.2.2011, even though the witness Nannu Singh admits being the first cousin of the deceased. He claims to have left the village after witnessing the appellant going along with the deceased, but this fact does not appear to be probable. He states that he was unaware that Manju was being searched in the night of 12/13.2.2011 but this fact also appears to be incorrect, because his house was hardly 50 meters from the house of the deceased. Rather he appears to be a set up witness for the prosecution. The evidence of last seen was further assailed by the appellant's counsel because he pointed out that Pinki PW-7 with whom the deceased Manju had gone claims to have left her house after it was dark and the lights had come on and that the last seen witness could therefore, not have seen Manju and the appellant going hand in hand at the time alleged towards the mustard field of Pratap Singh.

The other witness of the so called extra judicial confession PW-4 Ram Gopal, who is the brother of the informant Dambar Singh, it has been argued is even more unreliable as in the affidavit dated 22.2.2011 given by Ram Gopal to S.H.O Dibai, Bulandshhar, it is disclosed that when he was returning after working in his field along with one Mahendra on 20.2.2011, Nempal stopped him on the way and begged him to help save him from the police because he had wrongly committed the rape and murder of Manju. Contrary to this PW-4 had deposed in his evidence in Court that on 14.2.2011 in the morning when they were reaching near the grove of Pratap Singh, they saw the dead body of Manju lying in the middle of the field. The appellant Nempal was hiding there and he was caught hold of by Ram Gopal, Dambar Singh, Ramveer, Nannu Singh and others, who were present there and he started imploring them for not giving evidence against him. The other persons present there freed him. It is submitted that this version is inconsistent with his 161 Cr.P.C statement, wherein, he stated that the appellant had made his extra judicial confession before this witness on 20.2.2011.Moreover, as Dambar Singh PW-1 has admitted that appellant Nempal was picked up by the police on 15.2.2011 and he was kept in the custody till 21.2.2011 when he was challaned, then this witness would have no opportunity of obtaining the extra judicial confession from Nempal on 20.2.2011 as alleged. This fact of Nempal being picked up on 15.2.2011 has also been admitted by PW-2 Nanoo Singh. Telegrams have also been sent to S.S.P/District Magistrate, Bulandshahar by the father of the accused on 21.2.2011, a copy of which has been filed as paper No. 47-B which mentions that his son Nempal used to do Palledari, he had been picked up by the police on 15.2.2011 for no reason and he was apprehensive that the police would kill him in an encounter or implicate him in a false case.

Learned Government Advocate Sri Akhilesh Singh on the other hand argued that the evidence of last seen given by Nanoo Singh and the  evidence  of extra judicial confession before Ram Gopal were sufficient for connecting the appellant with this crime. Further more there was no reason for the false implication of the appellant, if he had no hand in this crime.

Analysis of evidence:

On a close analysis of the evidence, complete reliance cannot be placed on the evidence of last seen given by Nannu Singh PW-2. Nannu Singh was the son of Horam Singh, who is the real brother of the informant Dambar Singh. He claims to have seen Manju going alone with the appellant Nempal at 7.00 p.m on 12.2.2011 in the direction of the field of Pratap Singh. It is significant that initially PW-2 Nannu Singh only states that Manju was his co-villager. It was only in the cross examination, that he admits that Manju was the daughter of his real uncle Dambar Singh. Dambar Singh has also mentioned that Nannu was the son of his elder brother Horam. After Manju had gone missing in the night of 12.2.2011, then frantic efforts were made for the search of Manju. His house was hardly 50 paces from the house of Manju, yet in his cross examination, he initially stated that none made a search for Manju in the night of 12/13.2.2011 but then realizing the unnatural nature of his statement, he changed his version, and deposed that he had not gone for the search. This was also highly improbable conduct. If this witness had seen the appellant taking away his eight or ten year old first cousin at 7.00 p.m and thereafter she had gone missing, he was bound to inform other villagers and it was also impossible that this witness would not have joined in the search. It is significant that this witness admitted in his cross examination that when he was attending the marriage of some relation in village Bari, 70-80 km away, on receiving a call on his Mobile No. 9759470102 at 8.13 a.m on 14.2.2011, he immediately rushed to the village and reached there when the formalities and paper work with the corpse were still being carried out. If this was his conduct, when he merely heard that the corpse of Manju had been found, then how could it be believed that this witness would have sat back if indeed he had seen Nempal walking with Manju at 7 p.m., whereafter Manju had gone missing and the whole village were searching for her. Apart from this fact being inherently improbable it is also contradicted by the version of Ram Gopal, who states that he, Dambar Singh, Himmat Singh, Ramveer, Nannu Singh and others were searching for Manju since 12.2.2011 after she had gone missing.

Furthermore as per the second application given by Dambar Singh PW-1 father of Manju dated 15.2.2011 it is disclosed that Nannu Singh and Ramveer had disclosed to him that they had seen Manju in the company of Nempal going in the direction of the mustard field of Pratap Singh, and thereafter Nannu had given his 161 Cr.P.C statement to the I.O PW-5 Ravindra Kumar Singh These delayed disclosures before the informant and the Investigating Officer severely vitiates the the value of the testimony of this witness. Indeed it is impossible conduct that if this witness had seen Manju in the company of appellant Nempal on 12.2.2011, he would not have disclosed this fact on the same day to the informant and others in spite of a search being made for Manju, or on 13.2.2011 or even on 14.2.2011, but would have made this disclosure only on 15.2.2011 as has been stated by Dambar Singh in his statement ( Ext. Ka-11A)

Some further doubt is created on the reliability of this witness because Pinki PW-7 has stated that she and Manju, the deceased had gone to the fields after it was dark and the lights had been lit, for easing themselves. This would also be inconsistent with the time when Nannu Singh claims to have seen Manju going along with Nempal.

The other witness of last seen, his brother Ramveer, who might have lent some corroboration to the version of Nannu Singh has not even been produced by the prosecution for reasons best known to it.

So far as the evidence of extra judicial confession made before PW-4 Ramgopal is concerned, his evidence also does nothing to strengthen the chain of circumstances against the appellant. In his 161 Cr.P.C statement and in the affidavit filed before the S.O, P.S. Dibai, the version of Ram Gopal was that when he was returning from his field on 20.2.2011 along with Mahendra, then Nempal had stopped him and told him that he had committed a big mistake and had committed the rape of Manju and he should be saved from the police. According to the I.O PW-5 SI Ravindra Kumar Singh, Ramgopal and Mahendra's statements were recorded in the case diary on 21.2.2011. However Ramgopal makes a complete somersault from this position and deposes in court that on 14.2.2011 when he was engaged in the continuing search for Manju, her corpse was found in the morning in the middle of the mustard field of Pratap Singh and they saw Nempal hiding nearby. Pratap was then caught hold of, whereupon he admitted that he had done a grave wrong and was begging forgiveness from the persons present. In his examination-in-chief PW 4 Ramgopal states that the public got Nempal freed and he ran away, but in his cross-examination Ramgopal states that the appellant was able to extricate himself and to run away. Ramgopal makes no mention of the appellant begging for forgiveness in his cross-examination It was also highly improbable that the appellant Nempal would be hiding near the spot where the dead body was lying two days after the murder.

Also if this fact was true, it would have found mention in the application ( Ext. Ka-11A), which was given at the police station by Dambar Singh on 15.2.2011 which mentions the alleged evidence of last seen given by Nannu Singh, but makes no mention of the presence of Nempal near the place where the cadaver was found on 14.2.2011 or of the appellant begging for forgiveness on being caught by the villagers, and then running away on being freed by the villagers on his own.

It may also be noted that there is an affidavit of Ramgopal dated 22.2.2011 on record, which the I.O., PW 5 SSI Ravindra Kumar Singh states was given to him on 23.2.11, mentioning that on 20.2.2011 Ram Gopal and Mahendra were returning from their fields in the evening, then Nempal stopped them on the way, and confessed that he had done a grave wrong by committing rape on Manju, and with folded hands he begged them to save him from the police. But this affidavit does not appear to have been properly proved or exhibited, by the police or even to have been put to Ramgopal during his examination in Court. We also find that in both Ramgopal's examination in chief and in his cross-examination there is not even a line affirming the version mentioned in the affidavit. The accompanying person Mahendra before whom also this alleged extra-judicial confession was said to have been made has not been produced in Court.

We also note that the informant PW 1 Dambar Singh has specifically stated that the police had already picked up Nempal on 15.2.2011 and he remained in custody at the police station till 21.2.2011 when he was challaned. PW 2 Nannu Singh also deposes in his cross-examination that the police had picked up Nempal on 15.2.11, but he was not aware whether the appellant was detained in custody at the police station till 21.2.11. The I.O.s claim that he arrested Nempal only on 22.2.2011 therefore appears to be incorrect. If that be the position, then there was no question of Nempal meeting Ram Gopal and Mahendra on 20.2.2011 as he would have been in police custody then.

It is also very significant the appellant has not been put any question regarding any extra-judicial confession before Ramgopal. Question No. 6 which relates to the evidence of Ramgopal PW 4, translates as follows: "In the evidence of PW 4 Ramgopal it has come that the incident took place on 12.2.2011. After 12.2.2011 he and a number of other villagers searched for the deceased Manju, and whilst conducting the search when they reached Pratap Singh's grove, they saw Manju's corpse lying in the field, and the appellant was hiding there and a number of men and women were present. What did he have to say about this aspect?" To this question the appellant simply replied that the allegation was incorrect. It is therefore abundantly clear that no evidence of the so-called extra-judicial confession, (which was mentioned in the unproved affidavit dated 22.2.2011) has been produced in this case.

Thus apart from the evidence of the appellant having been last seen with the deceased on 12.2.2011, which for the reasons above mentioned cannot be relied on, we find that there is no other evidence to connect the appellant with this crime and it would be extremely unsafe to base the conviction only on the basis of the flimsy last seen evidence that his been adduced in this case.

We are also of the view that the police is guilty of gross dereliction of duty for the manner in which it has carried out its investigation. Thus although the appellant was arrested on 15.2.2011, (although the I.O. has falsely shown the date of arrest to be 22.2.11), in failing to the get the medical examination of the appellant conducted or trying to gather any other circumstance or incriminating material from the spot, which could have established either the complicity or the non-involvement of the appellant in this offence. Negligence of the police is also apparent from the fact that the I.O , PW 5 Ravindra Kumar Singh has only examined the informant, PW 1 Dambar Singh who has only deposed to the deceased having left her house with her friend Pinki, and of discovering Manju's corpse in Pratap's field on 14.2.11, which circumstances do not reveal the complicity of the appellant. Pinki, PW 7 only says that the deceased and she had gone to ease themselves in the evening of 12.2.11, but she had returned back whilst the deceased had remained back to collect her cattle.

Only one witness of last seen PW 2 Nannu Singh, has been produced whose belated disclosure before his real uncle, the informant Dambar Singh and the I.O. only on 15.2.11 when he claims to have seen the appellant taking away the deceased , his 9 year old cousin sister at 7 pm on 12.2.2011 after which a search was made the whole night and continually till the corpse was found in the field of Pratap, makes his testimony highly unreliable. The testimony of PW 4 Ramgopal, who as we have shown has actually said nothing about any extra-judicial confession by the appellant in Court and no question relating to any extra judicial confession having been made by the appellant before this witness was put to him under section 313 Cr.P.C. This makes his statement worthless. Thus we see that the I.O. has made no sincere efforts in either trying to work out the crime by relying on forensics or even by attempting to find and produce and incriminating materials or witnesses for establishing the case against the appellant.

One last question remains as to the reason why the appellant is being falsely implicated if he has no hand in the crime So far as this contention of the learned Government Advocate is concerned we may mention that a criminal case needs to be decided on the basis of the evidence adduced, and simply because an accused cannot offer any explanation as to why he and none else has been implicated in a crime, can provide no proof of the complicity of the accused, where the prosecution has failed to lead adequate reliable and credible offence for connecting an accused with the offence.

In this context it was felicitously stated by the Federal Court in paragraph 33 in a judgment by Spens C.J. in Piare Dusadh and others v. Emperor, AIR 1944 FC 1

"33. The gist of the learned High Court Judge's finding on the whole case is contained in the observation that there was really no explanation why anybody should have invented a false case against the appellants. This is not in our opinion a justifiable point of view to adopt in a case like the present where the prosecution evidence was found to be largely false and riddled with defects and contradictions. The prosecution having failed completely to establish the guilt of the appellants by good and reliable evidence, it was not for the appellants to explain why their names had been mentioned by the prosecution witnesses as persons who had participated in the riot."

Possible reasons for false implication of the appellant could have been that he might have been spotted near the place where the corpse was found and then public suspicion might have arisen against him and then the police only to show its case as worked out, without making any effort at genuine investigation decided to foist the case on this accused, only to show it as worked out, in order to quell public outrage which accompanies such cases of rape and murder of minor girls

In another capital sentence case of rape and murder, where the judgment was delivered by one of us (Amar Saran, J.), Nem Singh @ Mula v. State of U.P., Capital Case No. 2899 of 2011, (reported in Manupatra) MANU/U.P. 0851/2013 : 2013 (6) ALJ 512, this issue was earlier considered, and two judgments, Shankarala Gyarasilal Dixit v. State of Maharashtra and "Prem Thakur v. State of Punjab" have been profitably cited. The relevant Paragraphs 25, 26 and 27 of Nem Singh @ Mula, as reported in MANU/UP/0851/2013 are extracted hereinafter:

25. The reasons for the false implication of the appellant could be, One, the need of the police to show that it had worked out this grave crime, so as to avoid public ire. Two, there is a tendency of the human mind when faced with a brutal crime to resist the feeling that the guilt for the same cannot be foisted on someone, which object is accomplished that someone is held liable for a crime usually on the basis of strong suspicion. It would be appropriate to refer to the observations in two Apex Court judgments for meeting this query as to why the witnesses in such cases depose against the accused if he has no hand in the crime.

26. In Shankarala Gyarasilal Dixit v. State of Maharashtra MANU/SC/0211/1980 : 1981 (18) ACC 8 (Sum.) : AIR 1981 SC 765 : 1981 Cri. L.J. 325, it was observed in paragraph 33:

Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such question is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.

27. Likewise in "Prem Thakur v. State of Punjab MANU/SC/0097/1982 : AIR 1983 SC 61 : 1983 (20) ACC 189 (SC), it has been noted in paragraph 11.

"The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. And a prior suspicion that the accused has committed the crime transforms itself into a facile belief that if is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion. We are unable to share the High Court's view that the evidence showing "that the appellant was present with the deceased persons on the evening of November 8, 1980 and he was then missing from there on the next morning proves the offences alleged against the appellant beyond any shadow of doubt"

For all the aforesaid reasons we are of the opinion that the prosecution has not been able to establish its case against the appellant beyond reasonable doubt. The result is that the appeal succeeds and is allowed. The appellant is held not guilty of the offences for which he has been charged. The appellant is in jail He shall be set at liberty forthwith unless wanted in connection with any other case.

The Reference No. 9 of 2014 is rejected.

Let this order be forwarded to the lower Court for compliance.

Order Date :- 14.11.2014

sfa/