Daya Ram vs State Of U.P.
2015 Latest Caselaw 5517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 09.12.2015 
 
Delivered on 17.12.2015
 

 
A.F.R.
 

 

 
Case :- CRIMINAL APPEAL No. - 2568 of 2006
 

 
Appellant :- Daya Ram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jagat Narain Dixit,Anita Singh,Ashish Kumar Singh,Jaikaran Sahu,Prabhu Ranjan Tripathi,Saurabh Srivastava,Shailendra Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Pratyush Kumar,J

(Per Hon'ble Pratyush Kumar,J)

The instant appeal filed by the accused appellant under Section 374 (2) Cr.P.C., is directed against the judgment and order dated 9th February, 2005 passed by Sri Ram Priti Dwivedi, Additional Sessions Judge/Fast Track Court No. 3, Raebareli in Sessions Trial No. 269 of 2003 [State Vs. Daya Ram] under Section 302 IPC, P.S. Naseerabad, District Raebareli, convicting and sentencing the appellant under Section 302 IPC imprisonment for life and fine of Rs.5000/- and in default thereof six months additional imprisonment and also under Section 449 IPC imprisonment for life and fine of Rs.5000/-and in default thereof six months additional imprisonment.

In the present appeal facts of the prosecution case may be summarized as under:

On 29.05.2003 at 7.40 AM Muneshwar Pasi the Chaukidar of village Kiyan, P.S. Naseerabad, District Raebareli, has informed orally that on the previous night in Hamlet of Bhatpurwa of his village some unknown persons murdered the wife, sister-in-law (Sali) and three children of Raja Ram inside the house, all five dead bodies were lying in the house of Raja Ram.

On this report chik FIR was scribed, Case Crime No. 206 of 2003, under sections 449/302 IPC was registered at Police Station Naseerabad, requisite entry was made in the report of the general diary, investigation was taken over by Station Officer, Babu Ram Yadav, inquest proceedings were held, dead bodies were sent for autopsy, postmortem examinations were conducted on 02.06.2003, samples of blood stains found on the inside and outside of the walls of Daya Ram were taken, Daya Ram was arrested, photographs of those stains were also taken, Daya Ram confessed his crime and volunteered to point out the place where the axe (Kulhadi), the weapon of the murder was hidden and he also gave his baniyan and underwear which he was wearing at the time of commission crime, which become blood stained and he had washed them, all the materials were sent for scientific examination, spot was inspected, all steps necessary during the investigation were taken, after conclusion of the investigation charge-sheet was submitted against the present appellant.

The Magistrate took cognizance of the offence, committed the case to the Court of Session where the accused-appellant was charged for committing criminal house tress-pass in the house of Raja Ram with the intention to commit murder punishable under Section 449 and also for committing murders of wife of Raja Ram, his sister-in-law (Sali) and three children by sharp edged weapon punishable under Section 302 IPC. The appellant denied the charge and claimed to be tried.

In the documentary evidence, postmortem reports, police papers and reports of scientific examinations were filed, some of them are worth mentioning like chik FIR Ext. Ka-1, copy of report Ext. Ka-2, postmortem reports Ext. Ka-3, 4, 5, 6 and 7, recovery memo Ext. Ka-8 and 9, injury report Ext. Ka-10, site plan Ext. Ka-11, inquest report Ext. Ka-12, 17, 22, 27 and 32, recovery memo Ext. Ka-37, site plan Ext. Ka-38 and reports of the Serologist Ext. Ka-41 to 43.

In the oral evidence on behalf of the prosecution twelve witnesses were examined. Thereafter statement of the present appellant under Section 313 of the Code of Criminal Procedure was recorded. In the defence, mother of the present appellant and Raja Ram, Smt. Kewalpati D.W.1 was examined.

The learned trial Judge after hearing the arguments of the parties, delivered lengthy judgment wherein after appreciating the evidence he has found motive for the crime to be proved. He has also recorded that murder of five persons stood proved by medical evidence, the present appellant made extra judicial confession to Hasnu P.W.4, he believed on the strength of the evidence of Hasnu P.W.4 that extra judicial confession was made voluntarily. He also believed the evidence of recovery on the pointing out of the present appellant and perused the photographs proved by Rajesh Kumar Pandey, P.W.12 the photographer, found the factum of recovery corroborated by these, he also relied upon the scientific examination reports of the Serologist to the effect that axe recovered on the pointing out of the present appellant was bearing human blood stains, he also considered the fact that underwear and baniyan recovered on the pointing out of the present appellant and claimed to be worn at the time of the commission of the crime, thereafter to remove blood stains had been washed by the present appellant were also found bearing blood stains though its origin could not be established, he found circumstantial evidence to be clinching and convicted the present appellant under both the sections and sentenced him under section 302 IPC to undergo imprisonment for life and to pay fine of Rs.5000/-, he further convicted and sentenced the present appellant under section 449 IPC and sentenced him to undergo the imprisonment for life and to pay fine of Rs.5,000/- on both count and in default of the payment of fine, the appellant was directed to undergo six months additional imprisonment on both the counts.

Feeling aggrieved the present appellant has filed the instant appeal.

We have heard Sri Saurabh Srivastava, learned counsel for the appellant and Sri Umesh Verma, learned Additional Government Advocate for the State and perused the record.

In support of the appeal, learned counsel for the appellant has argued that impugned judgment and orders are against the material on record and law, the learned trial Judge has failed to appreciate the evidence in proper perspective. He has ignored the material contradictions and made out a new case against the present appellant.

While elaborating these arguments, the learned counsel for the appellant has submitted that evidence of Hasnu P.W.4 is not worth believing, the alleged confession of the present appellant does not amount to confession. He further submits that according to Ram Surat Maurya P.W.8, the present appellant was arrested at about 4.00 P.M. whereas recovery on his pointing out has been shown to be made on 02.06.2003 at 9.45 AM, thus, evidence admissible under Section 27 of the Evidence Act becomes doubtful. He has further submitted that the evidence of photographer Rajesh Kumar Pandey, P.W.12 is of no significance, the last argument on behalf of the appellant has been presented to the effect that the appellant being younger brother of Raja Ram was agitating against inaction by the police vigorously, he was falsely implicated to wreck vengeance but his defence was not taken into consideration at all.

Learned Additional Government Advocate has repelled all these arguments, to the specific grounds of attack against the judgment, he has submitted that the statement of Hasnu P.W.4 is of great significance, he was friend of the present appellant and also acquaintance of Raja Ram, if conversation with the present appellant with him is not treated to be extra judicial confession, it will still be relevant and admissible under section 8 of the Evidence Act to show abnormal conduct of the present appellant.

According to him, motive has been successfully proved by the prosecution. The cloud on the evidence of recovery can be removed by careful reading the evidence of Ram Surat Maurya P.W.8, according to him the appellant has failed to explain the recovery of axe bearing human blood on his pointing out from his Kothari and further blood stains on the clothes recovered by the Investigating Officer on his pointing out. His failure to explain these incriminating circumstances completes all links in the chain of circumstantial evidence, which is further strengthened by the fact that defence of the appellant has been found to be false, therefore, the impugned judgment has been passed after properly appreciating the evidence, for cogent reasons, according to him appeal deserves to be dismissed.

The learned Additional Government Advocate in support of his argument has referred the following case laws:

1.Munish Mubar Vs. State of Haryana [2013 CRI.L.J. 56] Reliance has been placed on paras 22 and 24 of the report.

2.State of Rajsthan Vs. Teja Ram and others [(1999) 3 Supreme Court Cases 507]. Paras 25 and 27 have been relied in support of his argument.

3.Ashok Kumar Vs. State of Haryana [2010 CRI.L.J. 4402 S.C.]. Reliance has been placed on para 22 of the report.

4.Elavarasan Vs. State [2011 CRI.L.J. 4329 SC].Reliance has been placed on para 27 of the report.

5.Subhasish Mondal Alias Bijoy Vs. State of West Bengal [(2014) 4 Supreme Court Cases 180]. The observations of the Hon'ble Apex Court made in paras 10 to 20 have been extensively read in support of the arguments made on behalf of the State-respondents.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

The responsibility of the appellate court while deciding criminal appeal against conviction become more onerous when the prosecution case is based on circumstantial evidence. The appreciation of circumstantial evidence is in itself a delicate work. The court has to ensure that each fact and circumstance has been established by cogent evidence, all links in the chain of circumstantial evidence have been proved so as to exclude every hypothesis indicating the innocence of the accused. Care has to be taken that while appreciating evidence in order to find out as to whether guilt of the accused has been established conjectures and surmises do not take place of the facts and circumstances. The court has to ensure that inference and presumption made and drawn do not get substituted by the conjectures and surmises. It would be in the fitness of the things that we must recall and remember the observations of the Hon'ble Apex Court made in the leading case of Sharad Birdhichand Sardar Vs. State of Maharashtra [(1984) 4 SCC 116]. In this case on circumstantial evidence, the Apex Court has laid down the following principles which are as under:

"1.The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established.

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 conclusive nature and tendency.

4.They should exclude every possible hypothesis except the one to be proved and,

5.Thee must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act have been done by the accused."

These observations with the passage of time did not loose their effectiveness rather gained more authority. Moreover, they were consistently followed and relied on by the Hon'ble Apex Court also, it is trite to say that these observations have guided thousands of judges, who had occasion to deal with the cases based on circumstantial evidence. We would not like to encumber the judgment further by citing more cases, suffice is to say that in a recent judgment in the case of Bhim Singh Vs. State of Uttrakhand [2015 (2) Supreme Court 144], the above quoted observations have been reiterated by the Hon'ble Apex Court.

Now we propose to discharge our obligations. We will be appreciating all the evidence to find out what prosecution proposes to prove and by what evidence, we will examine the matter on both the aspects whether circumstances proposed to be proved, if proved, would be sufficient to complete all links in the chain of the circumstances, so as to lead to the conclusion that the alleged crime was committed by the appellant. Before doing that we would also re-examine and re-assess the prosecution evidence adduced to prove these circumstances intrinsically and extrinsically.

During trial the prosecution proceeded to prove motive for the crime, extra judicial confession made by the present appellant, recovery made under Section 27 of the Evidence Act.

On the point of motive, statement of Raja Ram P.W.2 and Hausila Prasad P.W.5 are available on record.

Initially motive for murder was alleged to be greed of the present appellant to usurp the whole property of Raja Ram by finishing his family and on the point of motive the appellant was asked to explain this during his statement recorded under Section 313 CrPC, which he answered in negative. During the cross-examination made on behalf of the present appellant, it has come out that relations between two brothers were bad on account of partition of the property left by their father and grand-father and also on account of non contribution by the present appellant towards the expenses of the marriage of their younger sister.

It is well settled that any fact extracted during the cross-examination made on behalf of the defence is a creation of the defence and at least the defence cannot dispute its correctness. The mandatory requirement imposed by Section 313 CrPC for examination of the accused makes it compulsory that accused would be provided an opportunity to explain any circumstances appearing in the evidence against him. The evidence has not qualified by using the word adduced by the prosecution, therefore, we think that statement of Raja Ram P.W.2 made during cross-examination on the point of motive can be taken into consideration only when it was put to him. When we perused the statement recorded under Section 313 CrPC we find that in question no. 10 the present appellant was provided an opportunity to explain though in another reference and on the basis of evidence which we think inadmissible to be read to wit reproduction of the statement of Daya Ram (accused-appellant) made before the police officer while he was in custody and volunteered information to show the place where he had hidden the incriminating articles.

In the celebrated case of Pulukuri Kottaya and others versus Emperor (Sir John Beaumont) AIR (34) 1947 Privy Council 67, the Privy Council has made the legal position clear what can be read in evidence in such circumstances, we think that question no. 10 on the basis of the confessional statement should not have been put to the present appellant, however, two omissions by the learned trial Judge (1) not putting this fact on the basis of evidence of Raja Ram P.W.2 and (2) by putting it on the basis of confessional statement, the leaned trial Judge unknowingly corrected his mistake and we find that motive for the crime stands proved on the basis of evidence of Raja Ram P.W.2 which he gave during the cross-examination that Daya Ram bore ill-will towards his elder brother on account of unfair distribution of ancestral property between these two brothers. It will also be relevant to mention here that mother of these two brothers is living in her mayka, where she had inherited the property from her father and third brother Vijay Kumar during the partition has been allotted to his share in the property inherited by his mother in another village. We are not required to settle the dispute between the fairness of the partition, we are satisfied that the grievance either real or imaginary would produce the same result and generate the enmity of the same intensity.

Statement of Hausila Prasad P.W.5, who was the pradhan of the village for 20 years and he knows both these brothers is also relevant here. According to him both the brothers had some differences. He knows both of them, he is fair enough to admit that when dispute between them arose, he was not present. He has also admitted that he has no relation with these two brothers either good or bad. Bad relations are not tangible things but they are required to be proved by direct evidence. It is a kind of opinion formed by the persons consistently observing the conduct of two persons with each other, we think that statement of Hausila Prasad P.W.5 cannot be discarded on the ground that it is based on hear-say. To some extent we are fortified in our view from the provisions contained in Section 50 of the Evidence Act which permit relevancy of the opinion expressed by conduct as to the existence of the relationship between of one person to another.

To remove any doubt about the admissibility of the evidence of Hausila Prasad P.W.5 alternatively we have taken into consideration the provisions contained in Sections 59 and 60 of the Evidence Act. Section 59 of the Evidence Act mandates all facts except the contents of the documents or electronic record should be proved by oral evidence. Section 60 of the Evidence Act mandates oral evidence must in all cases should be direct, thereafter in the section direct evidence has been explained that a fact capable of being seen would be relevant only when it is deposed by a witness, who saw it, so is the case with a fact which could be heard or which could be perceived, the emphasis is on the mode by which a fact by whatever can be perceived by any person, only that person deposition would be treated to be relevant to prove it. Here question arises whether the dispute is a relevant fact in this reference or existence of animosity or enmity is the feeling and it is incapable of being seen or heard by a person and further it can only be perceived by the behaviour of the person on whom it is assigned, who agree with the last and therefore, we think that statement of Hausila Prasad P.W.5 that he had not seen the dispute, is not a fact in issue, fact in issue is bad relations between two brothers which this witness could perceive by his observation of the conduct of these two persons, therefore, we do not think his evidence is not based on hear-say and we treat his evidence to be relevant and admissible on this point.

The statement of Raja Ram P.W.2, extracted during the cross-examination is worthy of reliance, we also find that Hausila Prasad P.W.5 is an independent and impartial witness, he had opportunity to perceive, the bad relations between the two brothers, from his evidence statement of Raja Ram P.W.2 stands corroborated and we conclude on the basis of their statements that the motive for the crime was inimical terms between these two brothers, either imaginary or real grievance of the present appellant in reference to unfair distribution of the properties of their ancestors and his greediness to usurp all the properties of Raja Ram P.W.2 to settle his loss.

In the cases based on circumstantial evidence motive for the crime has more significance than it has in the case of direct evidence. Under Section 8 of the Evidence Act as previous conduct motive has evidentiary value as one link in the chain of circumstantial evidence. This link in the present case is duly proved by cogent evidence.

The second link is the manner in which the crime was committed. On this point on behalf of the prosecution five postmortem reports Ext. Ka-3 to Ka-7 have been filed and Dr. K.S. Singh P.W.7, who along with his team and Dr. M.K. Agrawal, conducted the postmortem examinations on the dead bodies of Gyanwati wife of Raja Ram, Km. Usha sister-in-law (Sali) of Raja Ram, Lala, Rahul and Sahul minor sons of Raja Ram were conducted, was examined. Dr. K.S. Singh has stated that on 29.05.2003 from the morning up to afternoon he conducted these postmortem examinations at the mortuary. On the dead body of Smt. Gyanwati, aged about 28 years, the Doctor found four ante mortem injuries, they are as under:

(i). Incised wound 7.00 cm x 2.00 cm bone deep right eye brow was coming out and bone below it was broken.

(ii). Lacerated wound 7.00 cm x 3.00 cm bone deep on the left side of forehead bones below left eye were broken.

(iii). Incised wound 8.00 cm x 3.00 cm on the nose and right eye damages the right eye ball completely. Bones of nose and upper right jaw were broken.

(iv). Lacerated wound 10.00 cm x 3.00 cm bone deep on the left side of face upper and lower bones of jaws on left side were fractured.

During internal examination he found all these bones were broken.

During external examination of dead body of Km. Usha, aged about 12 years, the doctor found two ante mortem injuries, they are as under:

(i). Incised wound 6.5 cm x 2.00 cm bone deep just below left ear. Blood vessels and tissues underlying injuries were severed.

(ii). Incised wound 6.00 cm x 2.00 cm bone deep on the left side of the head.

During internal examination, he found left temporal, parietal and frontal bones were broken.

During external examination of the dead body of Lala aged about 3 years, the doctor found two ante mortem injuries, they are as under:

(i).Incised wound 5.00 cm x 1.5 cm bone deep on the left side of the face just above and in front of left pinna. Tissues below it were severed.

(ii).Incised wound 8.00 cm x 2.00 cm brain deep on the left forehead expanding up to left eye.

During internal examination he found scalp of the head and bones broken.

On the dead body of Rahul, aged about 8 years, during external examination, the doctor found three ante mortem injuries on his body.

(i).Incised wound 8.00 cm x 1.5 cm bone deep on the head.

(ii).Incised wound 4.00 cm x 2.00 cm bone deep on the right side of the fact before right ear below the wound. All the tissues were severed.

(iii).Incised wound 4.00 cm x 1.00 cm bone deep below right ear.

During internal examination, the doctor found both parietal bones, right temporal bones, broken.

On the dead body of Sahul, aged about 6 years, he found two ante mortem injuries, they are as under:

(i).Incised wound 4.00 cm x 1.5 cm bone deep on the face in front of left ear. All the tissues and bones underlying were severed and broken.

(ii).Incised wound 7.00 cm x 2.00 cm bone deep 4.00 cm above left ear below it all tissues and bones wee severed and broken.

During internal examination, he found left temporal and parietal bones broken.

He has further stated that postmortem reports of Smt. Gyanwati and Km. Usha were prepared by Dr. M.K. Agrawal in his own writing and signature, which he identified. He has further stated that postmortem reports of other deceased were prepared by him, he has proved all the postmortem reports Ext. Ka-3 to Ka-7 and opined that ante mortem injuries were sufficient to cause death. These injuries could have been caused by axe (Kulhadi) except ante mortem injury nos. 2 and 4 of the deceased Smt. Gyanwati, which might have been caused by the staff of the Kulhadi. Death had occurred one day prior to their autopsies. According to him death had occurred due to shock and haemorrhage as a result of ante mortem injuries.

Veracity of this witness by way of cross-examination has not been disputed, only suggestion was made that ante mortem injuries nos. 2 and 4 of deceased Smt. Gyanwati could have been caused by hammer and incised wound could have been caused by other sharp weapon Gandasa or Parkhu. These suggestions, the witness did not deny.

When the present appellant was provided an opportunity to explain the facts stated by Dr. K.S. Singh in his statement under Section 313 CrPC, he replied that he admitted the murders of these deceased only. These violent death of five persons of the family members of Raja Ram, on the said time, date and place stand proved by the medical evidence. The only point which requires determination is the weapon used in the commission of offence. This, we propose to do when we will be discussing the scientific examination report connecting the murder of weapon with the crime.

The second link in the chain of circumstantial evidence, the commission of crimes have been established by cogent evidence.

Third link is the recovery of the incriminating articles on the pointing out of the present appellant. A very serious challenge has been made to this recovery. The basis of this challenge is a sentence finding place in the statement of Ram Surat Maurya P.W.8 wherein he has stated that Investigating Officer on the same day at 4.00 P.M. in the afternoon arrested the present appellant in his presence. We do not find this ground of attack acceptable to us, for this we have two reasons; this witness is a villager, he can be safely treated to be a rustic witness. The Hon'ble Supreme Court for appreciating the evidentiary value of illiterate and rustic villagers has permitted rather flexible approach. Slight discrepancies in their statements are not treated to be damaging, their idea about the time and distance should not be taken with exactitude. In the case of Dimple Gupta Vs. Rahiv Gupta, AIR 2008 SC 239, even the Hon'ble Apex Court has observed that it is impossible for illiterate villager or rustic lady to state with precision the chain of events, as these witnesses do not have sense of accuracy, time etc. Exactly in the present matter two days were important for this witness to remember, first day when the commission of the crime was discovered i.e. 29.05.2003 and the second day is 02.06.2003 when the incriminating articles were recovered on the pointing out of the present appellant. On which day, he says the present appellant to be arrested, that has not been asked from this witness. More so for the villagers when any police personnel ask to follow any person from the village they treat him to be under arrest. They do not know formalities of the arrest, they are unaware that a person may simply be called for interrogation or for any other purpose except to lock up him in the Hawalat. His statement regarding arrest of the present appellant about 4.00 P.M. has not been put to the Investigating Officer during cross-examination. Investigating Officer was cross-examined at length. He was cross-examined on various dates though he is the arresting officer but he was not suggested that he had arrested Daya Ram on 02.06.2003 at 4.00 P.M. One isolated sentence by an ignorant villager is not enough to impeach the credibility of the recovery which have been proved by Ram Surat Maurya P.W.8, Prem Prakash Giri P.W.10 and Babu Ram Yadav, P.W.11 and duly corroborated by the documentary evidence. What we find surprising that even during his statement recorded under Section313 CrPC, the present appellant Daya Ram has not pleaded that he was arrested at 4.00 P.M. on 02.06.2003.

We have gone through the testimonies of three aforementioned witnesses of the recovery, Ram Surat Maurya P.W.8, though resident of another village, has testified that he knew the present appellant and Raja Ram and in his presence the police recovered a Kulhadi, Kachcha and Baniyan on the pointing out of the present appellant. He has identified these articles material Ext. 1 to 3. He has also proved his signature on the recovery memo Ext. Ka-8 and Ka-9. He has stated during cross-examination that these articles were stained with blood when recovered. Being witness of the recovery, he is well known to the parties except one sentence during cross-examination his testimony remained unshaken and that statement appears to be the result of his background, not of fact, therefore, we find independent witness of the recovery to be reliable.

Prem Prakash Giri P.W.10 is the Sub Inspector of police helping the Investigating Officer. Babu Ram Yadav, P.W.11 is the recovery officer, both have successfully passed the test of cross-examination. Their testimonies lend due corroboration to the evidence of Ram Surat Maurya P.W.8, though learned counsel for the State-respondent has referred the case of Munish Mubar (supra) in para 25 of the report, the Hon'ble Apex Court has observed that the evidence of police personnel about the recovery made on the pointing out of the accused would not in itself to be discarded even in absence of independent witness. The present case is on better footing, there is an independent witness, who has proved the facts of recovery.

Evidence of recovery on the pointing out of the present appellant assumes significance on various counts. The Investigating Officer after blood stains from inside and outside wall of the present appellant's house were found, took two samples of blood stained plaster from there and these samples were sent for scientific examination. In the chemical examination report dated 12.03.2004 item no.11 is in the reference to those samples, according to the chemical analyst in those samples of plasters disintegrated blood stains were found, due to disintegration their origin could not be determined. At serial nos. 12, 13 and 14 reference have been made to the recovered baniyan, underwear and axe and same has been reported about them, though on behalf of the defence suggestion was made that the axe was used by by thepresent appellant to butcher an animal but no such suggestion has been made about item no.11 to 13. Inability of the appellant to explain these blood stains found on the inside and outside of wall of his house, on his underwear and baniyan along with axe is a significant fact under Section 106 of the Evidence Act, onus was on him to explain how these items became blood stained. If on the strength of the suggestion we exclude axe from our consideration even then the other blood stained items were also required to be explained by him, which he could not do so. The formidable evidence in the form of recovery of these items on his pointing out duly strengthened by the report of the chemical analyst, further strengthened from his failure to explain these blood stains is a very strong piece of evidence.

The motive and recovery coupled with failure to offer any explanation to explain the presence of the blood stain on the recovered items themselves completes all the links in the chain of circumstantial evidence for us to infer that the present appellant has committed the crime alleged by the prosecution. However, the prosecution has also relied on the extra judicial confession made by the present appellant to Hasnu P.W.4. Though the learned trial Judge has also believed the statement of Hasnu and treated the extra judicial confession to be duly proved and freely made, however, having gone through the statement of Hasnu P.W.4, we do not find that the statement made by the present appellant to Hasnu P.W.4 can be treated to be a confessional statement. He was merely speculating that Raja Ram had come to know that crime was committed by him (present appellant). His statement was very cleverly made, he was putting his fears in the form of thoughts of another person or he was trying to involve Hasnu P.W.4 in the crime. The confessional statement can be treated confession only when it is an unconditional acknowledgment of the guilt of the offence charged voluntarily made and complete in itself. We find that words used by the present appellant cannot be said to be acknowledgment of guilt in certain and candid words, even he did not admit the fact of committing offence, however, statement of Hasnu P.W.4. is not without value. He is near friend of the present appellant and merely acquaintance of Raja Ram. He was used to find out from Raja Ram what he thought about the murders of his family members. The fear shown on account of the visit of the station officer also made him fear the present appellant. To the extent that either his brother would implicate him in the crime or killed his children. When we search reason for such fear, we find the only reason can be his feeling of guilt or his own knowledge about his misdemeanor under Section 8 of the Evidence Act his such abnormal conduct is relevant and stands proved by Hasnu P.W.4, such conduct even consistent with his innocence, thus, leads us to conclude that he must be the person who committed the crime vide Jaydeep Neogi Vs. State of West Bengal, 2010 (68) ACC 227 (SC).

This is an additional evidence which we have discussed and taken into consideration to make us doubly sure that all links in the chain of circumstantial evidence are complete and on their basis the only inference can be drawn that these five murders must have been committed by the present appellant. These links in the chain of circumstantial evidence excludes every hypothesis about the innocence of the present appellant. When we remember the law laid down by the Apex Court in the case of Sharad Birdhichand Sardar (supra) we find that in the present case the prosecution has successfully proved the charges against the present appellant beyond reasonable doubt. Except one finding, the findings recorded by the learned trial Judge are well substantiated from the record, they have been recorded after applying the correct legal provisions, only error was made by the learned trial Judge that he should not have treated the deposition of Hasnu P.W.4 the conversation of the present appellant to be extra judicial confession rather it was evidence of abnormal conduct showing fear of the present appellant admissible under Section 8 of the Evidence Act. With this different reason we agree with the findings recorded by the learned trial Judge.

Lastly, we would like to make reference to the evidence of Smt. Kewalpati D.W.1, mother of the Raja Ram and the present appellant. After giving details of the relationship and reason for her living at her Mayka, she has stated that between the two brothers Raja Ram and Daya Ram (present appellant) there was no dispute about their ancestral property. She has further stated that the present appellant called the local MLA. Daya Ram (present appellant) was arrested by the police on the next following day after he organized Gherao of the police station. He was called to the police station about 3.00 P.M. and detained there.

During cross-examination she has admitted partition between the two brothers and dispute arose on account of non contribution of the present appellant towards marriage of his sister. She has also admitted that after Daya Ram (present appellant) was lodged in jail, she never met him. She has also admitted that once Daya Ram was arrested in a case of theft and Raja Ram got him bailed out. She has also explained the injury sustained by Daya Ram by saying that he himself struck brick on his head.

Thus, evidence of Smt. Kewalpati D.W.1 does not support the defence version that Ex. Minister Sri Shiv Balak Pasi has forcibly kept the aunt (distant) of the present appellant in his house and married her, when they resisted, Sri Shiv Balak Pasi used his influence to falsely implicate him. Since the version of the defence and evidence given by Smt. Kewalpati D.W.1 are not supportive to each other, the learned trial Judge by discarding the defence version has rightly recorded his finding about the guilt of the present appellant.

We find that the arguments made in support of the appeal are without substance, they are not substantiated from the record. The appeal lacks merit and is dismissed.

Office is directed to certify copy of this order to the court concerned forthwith and to send back the lower court record.

[Pratyush Kumar,J]     [S.V.S. Rathore,J]
 
Order Date :- December 17th,2015
 
Prajapati