Ram Pravesh vs State Of U.P.
2017 Latest Caselaw 1181 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44								       Reserved
 

 
Case :- CRIMINAL APPEAL No. - 2707 of 2005
 

 
Appellant :- Ram Pravesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Janardan Yadav, K.K. Singh, M.N. Pathak, R.S.Yadav, Rajesh Kumar Dubey, S.K.Tyagi, Satish Mohan Tiwari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Shailendra Kumar Agrawal, J)

1. This appeal has been preferred by accused/ appellant Ram Pravesh against the judgment and order dated 18.06.2005 passed by the Additional Sessions Judge, Court No.16, Deoria in Sessions Trial No.368 of 1999 (State Vs. Ram Pravesh and others), arising out of crime no.276 of 1999, under Sections 302, 201 IPC, Police Station Salempur, District Deoria, whereby the appellant was convicted and sentenced under Section 302 IPC for life imprisonment along with fine of Rs.5000/- and under Section 201 IPC for three years' rigorous imprisonment along with fine of Rs.2000/- with default stipulations.

2. The factual matrix of this appeal is related to the unfortunate murder of one boy of 3 years and 8 months old, who had come to the house of his maternal grandmother. He was missing in the morning of 08.08.1999 at 7.30 a.m. He was searched at many places, but could not be traced out. On 9th August, 1999 a missing report Ex. C1 was given by CW1 Smt. Biyafi (maternal grandmother of the victim) to the police Station Salempur, District Deoria, which was recorded by PW-3 CP Madan Mohan Tiwari in G.D. No.22 at 15.10 (Ex. Ka-5).

3. Thereafter, CW1 informed her son Kali Charan, the complainant of the case, who was doing job in Mumbai. He came to his village Sahala. After making some inquiries on his own level, he moved a written report (Ex. Ka-1) at Police Station Salempur on 16.08.1999 saying that he has come to know that accused Ram Pravesh Gupta and his family members have murdered Ramu and hidden his dead body in his house. Ram Pravesh had inimical terms with him. The chik FIR was carved out as Ex. Ka-6, which was entered in G.D. No.22 at 12.30, which is Ex. Ka-7. S.S.I. Ram Rekha Yadav (PW-6) started investigation.

4. PW-6 Ram Rekha Yadav recorded the statement of complainant Kali Charan (PW-1) at the Police Station on the same day and reached to Navalpur Crossing along with some police personnel and complainant. On the information of "Mukhbir", the accused Ram Pravesh Gupta was arrested at Navalpur Crossing and on interrogation he confessed to have committed the murder of Ramu on 08.08.1999 at 8.30 in the morning by cutting his throat in his courtyard and he disclosed about this incident to his father, mother, brother and sister, who had gone to work in the fields and the dead body of Ramu along with Khurpi was hidden by digging the earth with the aid of his family members.

5. His confessional statement Ex. Ka-17 was recorded and its contents were also recorded in the case diary which is Ex. Ka-19. Thereafter, they reached the house of Ram Pravesh and discovered the dead body of deceased Ramu and spud (Khurpi) (the weapon used in the crime), material Ex.1, in presence of witnesses Ram Pyare Tiwari and Vishwanath Yadav (PW-2) after digging the earth from a vacant place of north-western side of verandah of his house. The skeleton of deceased Ramu was found to be wrapped in a plastic bag.

6. The Fard of skeleton Ex. Ka-3 and Fard of spud (Khurpi) Ex. Ka-4 were prepared on the spot and the signatures of witnesses Ram Pyare Tiwari, Vishwanath and accused were obtained on these Fards.

7. The inquest report Ex. Ka-12 was prepared on the spot and after its preparation, the sealed skeleton was sent for postmortem along with all relevant papers Ex. Ka-11 to Ka-14 through Constable Om Prakash Singh (PW-5) and Virendra Kumar Sonkar (CW-2).

8. PW-4 Dr. L.P. Gupta conducted autopsy on the skeleton of Ramu Gupta son of Raj Kumar on 17.08.1999 at about 12:45 p.m. He proved postmortem report Ex. Ka-9 and opined that the death had occurred 7 - 8 days ago; the corpse was decomposing; hairs from head and eyebrows were absent; skin from all over the body was destroyed but present at some places; foul smell was coming out from the body. The following ante-mortem injuries were found:

(i) Lacerated wound 13cm x 3cm x throughly through out the whole cut of neck. The neck was entangled only with some part of skin on the front of neck. All the soft structure and bone of neck was cut or divided.

9. PW-6 S.S.I. Ram Rekha Yadav inspected the spot and prepared the site plan Ex. Ka-10 and recorded the statements of the witnesses. Recovered spud (Khurpi), Baniyan, Tabij with thread, pair of bangles were also sent to FSL for scientific examination. The investigation culminated into filing of the charge sheet Ex. Ka-15 against accused Ram Pravesh, Santosh, Ranjan Devi, Kamalawati Devi and Buddhan Gupta.

10. The learned trial court framed the charges against all the five accused persons under Section 302 read with Section 34 and Section 201 IPC. The accused pleaded not guilty and claimed to be tried, as such, the prosecution was directed to prove its case.

11. To substantiate the charge, prosecution has examined as many as six witnesses, who are Kali Charan (complainant of the case) PW-1, Vishwanath PW-2 (nearest neighbour of PW-1 and accused), Cons. Madan Mohan Tiwari PW-3, Dr. L.P. Gupta (conducted postmortem on the corpse of Ramu) PW-4, Cons. Om Prakash Singh PW-5 and S.S.I. Ram Rekha Yadav (Investigating Officer) PW-6. The trial court has examined CW-1 Smt. Biyafi, CW-2 Cons. Virendra Kumar Sonkar, CW-3 Ram Vrat, CW-4 Ramdev and CW-5 Ram Vilas Tiwari as court witnesses.

12. Appellant and other charge-sheeted accused in their statement u/s 313 Cr.P.C. have denied the material facts of the prosecution and stated that there was no dispute of land and the prosecution witnesses have deposed falsely against them. They have further stated that accused/ appellant Ram Pravesh was locked in the police station by the police 7 - 8 days before registration of the case. Accused/ appellant Ram Pravesh has also denied the fact that on his pointing out, the skeleton of deceased Ramu and the spud used in crime were recovered. Cons. Ghanshyam Sharma was produced as DW-1 from the side of defence.

13. After scrutinizing and appreciating the evidence, the learned trial court acquitted Santosh, Ranjan Devi, Kamalawati and Buddhan Gupta from all charges but convicted the accused Ram Pravesh for the charges framed. It is relevant to mention that no appeal has been filed by the State or by the complainant against the impugned judgment and order of acquittal.

14. Heard Shri M.N. Pathak and Shri Satish Mohan Tiwari, learned counsel for the appellant and Shri Ajeet Kumar Singh, learned A.G.A. for the State.

15. Learned counsels for the appellant have contended that there is no eye witness of the murder. This is a case of circumstantial evidence and the prosecution could not establish the chain of circumstances and the points taken by the prosecution do not prove the guilt of the accused. Learned trial court has considered the recovery of skeleton on the pointing out of the appellant under Section 27 of the Evidence Act, whereas at the time of alleged recovery, the appellant was not in "custody". The disclosure statement has not been signed by the accused, hence no reliance can be placed on it. The alleged recovery of skeleton on the pointing out of the appellant was inadmissible. There are major contradictions in the statements of the witnesses, which do not corroborate each other. There is no motive on the part of the appellant to commit the offence.

16. Learned A.G.A. by refuting the above contentions argued that enmity is admitted by the appellant himself in question nos.18 and 19 of his statement u/s 313 Cr.P.C. and though disclosure statement has not been signed by the accused, yet the accused himself has stated in the answer to question no.22 that he has nothing to say. Thus he has admitted the fact mentioned in Ex. Ka-19 and Ex. Ka-17.

17. We have considered the rival submissions advanced by the learned counsel for both the parties and have gone through the entire record carefully. This is a case based on circumstantial evidence only. Before analyzing the factual aspect, it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, i.e., the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in the issue which taken together form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.

18. PW-1 has clearly admitted that no one told him about the person, who had seen the accused Ram Pravesh committing the murder or hiding the skeleton of Ramu. It has been laid down by the Hon'ble Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

19. In the case of Padala Veera Reddy Vs. State of Andhra Pradesh 1991 SCC (Crl.) 407 the Apex Court laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with in all human probability the crime was committed by the accused and none else; and

(4) 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 and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

20. The case at hand has to be appraised in the background of the aforesaid principles.

21. The first circumstance is that PW-1 has stated in his examination-in-chief that accused was his close neighbour. The wall of both the houses was common and there was dispute in respect to this wall between both the families. He has also stated that there was rumour that he had some illicit relations with the sister of accused Ram Pravesh, therefore, Ram Pravesh was annoyed with him. He has also stated in his cross-examination that Ranjana, the sister of accused Ram Pravesh had never gone to Mumbai with him, but it was a rumour.

22. CW-1 Smt. Biyafi, mother of the complainant has also corroborated the same fact of enmity and she has also stated that the accused persons had taken unauthorized possession of her 'Sahan' and had also closed the 'Navadaan' of her house.

23. Learned A.G.A. has categorically stated that real cause for killing the nephew (Bhanja) of the complainant was just to take revenge for enmity and insult in the society. Accused persons have denied these claims in their statements u/s 313 Cr.P.C. Accused themselves have admitted that the witnesses have deposed against them due to enmity. PW-1 and CW-1 themselves have stated that the crime was committed due to enmity. It is true that motive plays an important role in a case of circumstantial evidence, but failure to prove motive does not necessarily discredit the otherwise reliable incriminating circumstances.

24. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive, it would be well and good for it, particularly in a case depending on circumstantial evidence, for such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the appellant. Even if the Investigating Officer would have succeeded in knowing it through interrogations, that cannot be put in evidence by him due to the ban imposed by law.

25. In this context we would reiterate what the Apex Court has said about the value of motive, evidence and the consequences of the prosecution failing to prove it. In Nathuni Yadav v. State of Bihar, AIR 1997 SC 1808 and State of H.P. v. Jeet Singh, (1999)4 SCC 370, the following passage can be quoted from the latter decision: (SCC p. 370, para 35):-

"35. No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."

26. The next circumstance is recovery of skeleton of Ramu buried under the earth in the house of the accused. The skeleton of Ramu, Baniyan, Tabij with thread, pair of bangles worn by the deceased boy and the weapon spud (Khurpi) used for the commission of murder were recovered on the pointing out of the appellant from his own house and at that time beside many villagers, PW-1, PW-2, PW-5, PW-6 and CW-2 were present. All of them have supported the prosecution version. Barring minor contradictions, all have corroborated each other on the point of recovery of skeleton. There is absolutely no doubt about this recovery.

27. PW-1 Kali Charan has stated that when he lodged the report at Kotwali, his statement was recorded at the Police Station. He, Investigating Officer and other police personnel reached Navalpur Crossing, which is near to the village of complainant. Accused Ram Pravesh was standing there to catch the bus. But on his pointing out, accused Ram Pravesh tried to flee away and was arrested by the police personnel. PW-1 has further stated that Investigating Officer interrogated Ram Pravesh, who confessed his guilt and skeleton of Ramu was recovered from his house at his instance.

28. PW-6 Investigating Officer Ram Rekha Yadav corroborating the deposition of PW-1 has also stated that on this crossing, after the accused was apprehended, he took the statement (Ex. Ka-17) of accused, who confessed to have committed the murder of Ramu and further disclosed that he could get the dead body of Ramu and the weapon used for murder recovered from his house, where those were buried. Accused was brought in Police Jeep to his house in village Sahala. PW-6 has further stated that before such recovery, he told witnesses Ram Pyare Tiwari and Vishwanath (PW-2) (neighbours of both parties) that accused has admitted his guilt and is ready to get body of Ramu and the weapon used in the crime recovered. When police party reached his house, accused again tried to flee away, but was apprehended by the police personnel with the help of villagers. After this, skeleton of missing boy Ramu together with the weapon spud (Khurpi) and other articles like Baniyan, Tabij with thread, pair of bangles worn by the deceased boy were recovered by digging north-western side of verandah of his house by the appellant himself. The recovery memo of skeleton Ex. Ka-3 and recovery memo of spud (Khurpi) Ex. Ka-4 were prepared on the spot in the presence of accused and witnesses Ram Pyare Tiwari and Vishwanath Yadav (PW-2) also signed these Fards.

29. PW-2 Vishwanath son of Jangi Yadav has also corroborated that he was in his house, seeing the police he came out and saw that police had arrested the accused Ram Pravesh, who confessed before Daroga Ji and became ready to hand over the body of Ramu from his house and then appellant went inside his house and dug out the skeleton of Ramu from north-western side of floor of his house and spud. Accused also confessed that he committed murder with this spud. The skeleton was wrapped in plastic bag. The witness also proved the Fards Ex. Ka-3 and Ka-4 and admitted his signatures on papers. Presence of this witness is not doubtful at the time of recovery of skeleton etc. The evidence of PW-2 reveals that when accused tried to flee away from the custody of police on the gate of house, at that moment, PW-2 came out from his house and witnessed whole occurrence.

30. It has been argued that PW-2 has admitted that Daroga Ji arrested accused, who confessed to the killing of Ramu by the spud and showed willingness to get the corpse recovered. Accused handed over the skeleton and spud after digging the earth of his house. He has also stated that Daroga Ji recorded the statement of accused, who signed it. Thus, the prosecution cannot take the benefit of the disclosure statement, which is said to be recorded at Navalpur Crossing, rather it was recorded when accused himself produced the skeleton and Khurpi by digging the earth. We do not agree with argument that such recovery is not covered under Section 27 of the Evidence Act. When the Investigating Officer reached Navalpur Crossing, PW-2 was not present there, so he could not say that disclosure statement was either recorded or not recorded at Navalpur Crossing. It has already been proved by deposition of PW-1, PW-5 and PW-6 that accused was arrested at Navalpur Crossing. Investigating Officer interrogated accused Ram Pravesh, who confessed his guilt and was ready to get body of Ramu and the weapon recovered. Disclosure statement was in fact recorded at Navalpur Crossing.

31. As far as recording of statement on the spot (the house of accused) is concerned, it appears that PW-6 prepared Exs. Ka-3 and Ka-4, the two Fards of the recoveries of skeleton and spud on the spot. Those were signed by the accused and the witnesses on the spot. Accused reiterated his confession in his house also. The possibility cannot be ruled out that when Investigating Officer prepared these two Fards and asked witnesses and accused to sign and when the accused signed on all these Fards, this witness might be under impression that the accused is signing on his statement. After going through the statements of the witnesses, we are of the firm view that the accused was already taken into custody at Navalpur Crossing, his disclosure statement had already been recorded and after that, this recovery was done. Hence it would be fully covered under Section 27 of the Evidence Act.

32. PW-5 Cons. Om Prakaash and CW-2 Cons. Virendra Kumar Sonkar were members of that police party headed by PW-6, who arrested the accused at Navalpur Crossing on the pointing out of the complainant, when he tried to flee away. It is noteworthy that PW-5 and CW-2 were examined by the prosecution only to prove the fact that the body of Ramu along with relevant papers was handed over to them to carry out it to District Hospital for postmortem. But as they were members of the police party, both the witnesses were cross-examined on its own way by defence regarding arrest and recovery. Though PW-5 in his cross-examination has admitted that accused was arrested at the gate of his house, but later in his cross-examination dated 23.02.2005 has admitted that accused was arrested at Navalpur Crossing, where he tried to flee away, but was arrested by the police team and his statement was also recorded.

33. PW-5 has also admitted that his both statements regarding arrest of accused at both places are true. By going through his lengthy cross-examination, it appears that there was some confusion in his mind when he stated that the accused was arrested at his gate. Because accused was apprehended twice, once at Navalpur Crossing and second at the gate of his house. CW-2 has also stated in his cross-examination that accused was arrested at the gate of his house. From perusal of the whole statement of cross-examination of this witness, it appears that the way he was cross-examined, he answered like-wise. It was incumbent upon the prosecution to clarify the position from the witness either by recalling him or by declaring him hostile witness. However, CW-2 is also corroborating the recovery of skeleton from the house of accused at his own instance. It is to clarify here that CW-2 has been cross-examined only for recovery of skeleton and not for recovery of spud or anything else and this witness himself has not stated anything more. Again it was incumbent upon the prosecution to clarify the position from the witness regarding other recoveries, but the prosecution was silent on this. However, in the light of trustworthy evidence of PW-1, PW-2, PW-5 and PW-6 prosecution has proved its case beyond doubt.

34. As per inquest report Ex. Ka-2, thread with locket, plastic Karah and sando baniyan were found with skeleton and these items were sent to Forensic Science Laboratory, Lucknow for scientific analysis and as per report dated 05.02.2000 of F.S.L., the blood was also found on the spud, baniyan and the locket. Jagdish Yadav, Kali Charan (complainant), Vishwanath Yadav (PW-2), Ram Pyare Tiwari and Ram Nagina Gupta were the witnesses of the inquest and they belonged to the same village and were neighbours of the complainant. All of them have recognized the body of Ramu.

35. The identity of the skeleton is also established by the evidence of PW-4 Dr. L.P. Gupta. It is noteworthy that no suggestion has been given to PW-2, PW-3, PW-5, PW-6 and CW-2 that skeleton and other things were not recovered from the house of accused at his instance. At least the accused must have put his case in cross-examination to all these witnesses. No explanation has been given by accused. In such situation, prosecution version would be treated as correct and defence version may be rejected as an afterthought (K.N. Mehra Vs. State of Rajasthan, AIR 1957 SC 369; Yusuf Ali Vs. State of Maharashtra, AIR 1968 SC 147).

36. The appellant also failed to offer any explanation as to why so many witnesses are deposing against him. The witnesses were subjected to extensive cross-examination, but nothing more could be elicited to discredit their testimony barring some contradictions. There are only vague suggestions on the part of the appellant that witnesses are deposing falsely or under the wrong advice of prosecuting officer. We have considered the submissions and testimonies of the witnesses, but we do not find any material contradiction. The Addl. Sessions Judge has rightly relied upon the recovery of skeleton and spud.

37. PW-6 has admitted that mistakenly he did not take the sign of the accused on this disclosure statement. It would not be proper to reject the statement Ex. Ka-17 only on this technical point. PW-6 has also recorded the whole disclosure statement in his case diary and proved it as Ex. Ka-19. In Bhaakua Kampa Vs. State of Orissa, 1996 Crl.L.J, 350, 353 (Ori), it has been held that disclosure statement of the accused need not be recorded by the Investigating Officer on a separate sheet of paper along with his signature. Recording of the disclosure statement in the case diary is not illegal. Discovery statement of the accused and recovery of revolver in pursuant thereto is an important circumstance against the accused which can be taken into consideration [Dev Prakash Vs. State of Haryana, AIR 1996 SC 279]. The evidence of the police officer effecting recovery on the information of the accused would not stand vitiated even if the Panch witnesses to the recovery turned hostile - Mohammed Aslam Vs. State of Maharashtra (2001)9 SCC 362.

38. This Court has to take into consideration the circumstances how the statement was recorded. In our opinion this is only rule of caution. PW-6 has admitted that when he took the statement of accused Ram Pravesh, no one was there and no one could hear the same. PW-1 has also corroborated this fact. He has stated that though some people had come there but due to noise of Jeep as it was started, he could not hear what accused was telling the Investigating Officer.

39. Question of homicidal death of Ramu has also been raised. The counsels for the appellant drew our attention to the postmortem report of the skeleton. As per the report of doctor (PW-4), there are few chances that the wounds might be caused by this spud (Khurpi), hence in absence of cause of death, the appellant cannot be convicted for the murder. We do not agree with this argument because the doctor has specifically stated that postmortem was conducted on 17.08.1999 and the death could have been caused 7 - 8 days ago. It might be between 09.08.1999 to 16.08.1999. The boy was missing since 08.08.1999. PW-4, doctor has also stated in his examination-in-chief that "ckj&ckj dkVus ls ;fn dbZ ckj jsrk tk; rks ;g pksV gks ldrh gS". Thus witness meant here that if the spud is used in certain way then it might cause that injury, which was caused to Ramu, which resulted in his death. Thus, it cannot be said that death was not caused by this spud.

40. In his cross-examination PW-4 has also stated that if spud (Khurpi) Ex. 1 is used with heavy force on the neck, it might cause ante-mortem injuries, which may be the reason of death, hence it is established that recovery of the dead body of the victim bearing marks of violence is sufficient proof of homicidal death of the victim. Where the dead body of the victim in a murder case is found, the homicidal death of the victim must be proved by cogent and satisfactory proof. Such proof may be by the direct ocular account of an eye witness or by a circumstantial evidence or by both. But where the fact of corpus delicto i.e. "homicidal death" is to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof.

41. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the Evidence Act, a fact is said to be "proved", if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling an inculpating circumstance which definitely leads to the conclusion that within all human probability, the victim has been murdered by the accused concerned. The recovery of dead body, other articles and the weapon used for commission of murder of Ramu from inner portion of house of appellant in all circumstances would lead to only inference that the accused was not only aware of the concealment, but only he had knowledge that the dead body was lying there. His house was not accessible to any outsider, who might bury the corpse of Ramu.

42. Now it is noteworthy that the skeleton was recovered buried inside the house, which was in exclusive possession of the appellant. Appellant has nowhere denied it. This recovery is in pursuance to his disclosure statement made under Section 27 of the Evidence Act. Thus prosecution has established its case. There was enmity between the accused and the complainant, and to teach a lesson to the complainant, the accused committed the offence. Naturally only appellant could have committed murder of Ramu and none would bury the corpse. This is only the appellant who knew where it was hidden and until he discloses this fact to any other person, no one can know about the same. The prosecution version that the appellant had actually got the dead body and weapon discovered lying under the earth because of his knowledge and his complicity in the offence appears more acceptable than the contention of the defence that he "did not know". In these circumstances it cannot be said that the discovery was foisted on the appellant.

43. We also find that the accused was in denial mode to the specific questions put in the statement u/s 313 Cr.P.C. And no specific answers in this regard were given. The accused/ appellant was specifically asked in question no.5 that on 09.08.1999 he along with his family members had buried the dead body of Ramu after killing him inside the verandah of his house; in question no.8 he was asked that after lodging of the FIR he was arrested by the Investigating Officer on 16.08.2000; in question no.9 he was asked that after arrest, on interrogation, he confessed to have committed the crime and also gave statement that he along with his family members killed Ramu on 08.08.1999 and dead body of Ramu has been buried with Khurpi on the north-western corner of the verandah of his house and he is ready to recover the same; in question no.10 he was specifically asked that he showed that place of verandah of his house to the Investigating Officer in presence of witnesses Ram Pyare Tiwari and Vishwanath and dead body along with spud (khurpi) was recovered after digging the earth; and in question no.11 he was asked that on the spot he signed on Ex. Ka-3, Fard of the skeleton and Ex. Ka-4, Fard of spud (Khurpi). In response to these questions his answer was only of denial "xyr gS" and he only stated that he was detained since last 7 - 8 days.

44. Thus in his statement u/s 313 Cr.P.C., the appellant has denied the prosecution case completely. When the circumstances of recovery of skeleton with other things of Ramu and weapon used for murder from his house were put to the accused, his answer was of "denial", while all the witnesses have supported and proved the fact of recovery of skeleton, other things and spud (Khurpi) from the house of the accused beyond reasonable doubt. This denial about the recovery of skeleton and spud (Khurpi) also provides an additional link in the chain of the circumstances. The Hon'ble Apex Court in the case of Anthony Dsouza and others Vs. State of Karnataka, 2003 SCC (Criminal) 292, observed as under:

"In Swapan Patra V. State of W.B., (1999)9 SCC 242 this court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra V. Suresh, (2000)1 SCC 471 where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh Vs. State of Rajasthan, (2000)5 SCC 7."

45. It was obligatory on the part of the appellant while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him so that the court must take note of such explanation in the case, to decide as to whether or not, the said explanation can inculpate him in relation to the commission of the crime.

46. Again, dealing with similar facts, in the case of Joseph Vs. State of Kerala (2000) 5 SCC 197, that when questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In the background of such facts, the Supreme Court observed (at page 205, paragraph 14);

"Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh (2000)1 SCC 471). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy."

47. In the instant case also, from the trend of the answers given by the appellant in his examination under Section 313 Cr.P.C., it appears that the appellant made only a bald denial of all the incriminating circumstances put to him, and had no explanation to offer.

48. One more point arises for consideration that if the facts within the special knowledge of the accused are not satisfactorily explained, it is a factor against the accused. But the said factor, though by itself not conclusive of his guilt, is relevant while considering the totality of the circumstances (State of Punjab Vs. Karnail Singh, (2003) 11 SCC 271). Of course the prosecution has to establish the prima facie case in the first instance, if the prosecution has discharged its burden and established prima facie case of guilt of accused beyond reasonable doubt, then and only then question of burden of proof on accused relating to criminal liability arises. It is true in respect of "burden on accused under Section 106 of the Evidence Act". In such circumstances facts proved may give rise to reasonable inference of guilt unless the same is rebutted. If some facts may lie under the special knowledge of the accused, then accused must give sufficient explanation.

49. In this case, because of the absence of any explanation from the side of the accused about the recovery of the skeleton of the boy from his house, there would be every justification for drawing an inference that the appellant had murdered the boy. Though Section 106 of the Evidence Act may not intend to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, yet Section 106 of the Evidence Act would apply to cases like, where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding death. The accused by virtue of his special knowledge must offer an explanation which might lead the Court to draw a different inference. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in every cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there would be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmate of the house cannot get away by simply keeping quiet and offering no explanation on the supposed crime that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation [State of Punjab Vs. Karnail Singh (2003) 11 SCC 271].

50. The Apex Court in the cases of State of West Bengal Vs. Mir Mohd. Omar (2000) 8 SCC 382, Harijan Bhala Teja Vs. State of Gujarat 2016 (4) SCALE 397, State of Himanchal Pradesh Vs. Rajiv Jassi AIR 2016 SC 2241, lays emphasis on the application of Section 106 of the Evidence Act in the incidents alike the case in hand. In this respect the Apex Court in the case of Mir Mohd. Omar (Supra) has held as follows:-

"31.The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.

33.Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 114 is incorporated in the Evidence act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

51. In State of Gujarat Vs. Koli Chhaganbhai Laxmanbhai, 2009, Crl. L. J. 3557 (Gujarat D.B.), where the articles of the victim are recovered at the instance of the accused from his house, it would be relevant fact established by the prosecution and the possession of such articles with the accused has to be explained by the accused and burden would be on the accused to explain as to why he came in possession of those articles.

52. In State of A.P. Vs. Gangula Satya Murthy, AIR 1997 SC 1588, it was held that where the dead body of the victim of rape was found on the cot inside the house of the accused, the burden was on him to explain how the dead body happened to be there. In this case also, the skeleton of deceased Ramu together with other articles and weapon were found inside the house of the accused/ appellant on his disclosure statement and he could give no explanation of it except making a bald denial. It being in the special knowledge of the accused, will certainly be a relevant factor while considering totality of the circumstances. The Court would be justified in this case to draw the presumption that the appellant himself could be the killer of the deceased Ramu unless he explained otherwise. In this case as there is no inconsistency in prosecution evidence regarding establishment of the recovery of the skeleton from the house of the appellant, as such, it would be proper to hold that the defence has failed to discharge its burden to prove the circumstances in which the victim had died in view of Section 106 of the Evidence Act.

53. Therefore, if an offence takes place inside the privacy of a house and in such circumstances, where the appellants have all the opportunity to plan and commit the offence at the time and circumstance of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. Affirming the applicability of Section 106 of the Evidence Act in the cases State of Rajasthan Vs. Jaggu Ram (2008) 12 SCC 51) and in Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681, it had been reiterated by the Apex Court as under:-

"14. A judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab V. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him....

54. The word 'especially' stresses that it means facts that are pre-eminently or exceptionally within the knowledge of accused, which he could prove without difficulty or inconvenience. In this case also the accused himself has dug out the skeleton of the deceased Ramu and the weapon used in commission of the murder of Ramu from his house. These facts have been proved by the prosecution witnesses and even accused himself has admitted in disclosure statement. Thus, these facts were 'especially' within the knowledge of the accused, therefore, the principle of Section 106 of the Evidence Act shall apply in this case.

55. Another circumstance is the conduct of the accused himself when he was absconding. It is very material in the case. PW-2, who is also neighbour of the accused/ appellant has denied the allegation of any enmity with the accused. PW-2 has stated that the villagers had some doubt about his culpability while he always used to deny this fact. But the witness has categorically told about the conduct of this accused as "eqfYte Hkkxrk fQjrk FkkA fZNi&fNi dj jkr esa vkrk Fkk rFkk fnu esa Hkkx tkrk FkkA blds vkpj.k ls iDdk fo'okl gks x;k Fkk fd ;gh yM+ds dks xk;c fd;s gS". PW-2 has also thrown light when he stated that after disappearance of the boy, police apprehended the accused Ram Pravesh, but was released under the pressure of "Netas" (politicians) and since then accused Ram Pravesh was absconding. CW-1 has also stated in her cross-examination that when the boy disappeared, she had no doubt at anyone, but one day when she went on her roof, she saw that "eqfYteku vius ?kj esa xqtxqt dj jgs Fks", then she doubted accused persons that they had kidnapped her grandson or killed him. She had also expressed her doubt before the villagers, but no one helped her and her suspicion became true when the skeleton of Ramu was recovered from the house of the appellant.

56. These facts of conduct of accused are much relevant in light of Section 8 of the Evidence Act. It appears that due to this reason, PW-1, the complainant named this appellant in the FIR for the commission of the murder of his nephew. Till that time there was no source of knowledge to the complainant as to the involvement of the accused-appellant in this murder, but the conduct of the appellant itself created a doubt in his mind that only the appellant and his family members are somehow involved in it. It is noteworthy that PW-1 has not been cross-examined on the point that how he came to know about the appellant's involvement in the crime.

57. It has been argued on behalf of the appellant that before alleged recovery of the skeleton and weapon, accused was not taken into custody and statement of accused was not recorded by the Investigating Officer, hence this recovery is not admissible under Section 27 of the Evidence Act. Section 27 of the Evidence Act applies only when a statement is given by the accused of an offence while in custody and pursuant to his statement something is recovered. It has also been argued that one witness has stated that the accused was handcuffed while others have denied. In the same way one witness has stated that there were some injuries on the body of the accused Ram Pravesh while others have not corroborated this fact. Thus there are major contradictions in the ocular evidence of the witnesses. We do not agree with the contentions of the learned counsel for the appellant.

58. Though PW-2 has stated that accused Ram Pravesh was handcuffed, but PW-1, PW-5, PW-6 have denied it. PW-6 has specifically stated that he did not handcuff him till he reached the police station. PW-2 has specifically stated that accused was handcuffed in the police station. PW-6 has admitted that accused got minor injuries at the time of his arrest at Navalpur Crossing. PW-1 has also stated that accused was chased by two police constables, after that he could be apprehended. All these depositions fortify the version of the prosecution that accused was arrested before recording the disclosure statement. Thus, it cannot be said that accused was not taken into custody prior to recording his statement.

59. Under Section 27 of the Evidence Act custody does not necessarily mean custody after formal arrest, but includes a state of affairs in which the accused can be said to have come into the hands of a police officer or have been under some form of police surveillance or a restriction on his movements by the police. In the case of State of A.P. Vs. Gangula Satyamurthy, AIR 1997 SC 1588, the Apex Court has observed "such custody need not necessarily to be post arrest custody". The testimony of PW-1, PW-5, PW-6 shows that after taking statement of PW-1 when police party reached to Navalpur crossing, on the pointing out of PW-1 when police tried to arrest accused, he tried to flee away. But he was caught and then he was interrogated there and confessed his crime. Thereafter, police team took him in Jeep to his house. There again accused tried to flee away, but he was apprehended. PW-2, PW-5 and CW-2 have corroborated this fact. Thereafter, accused dug out the skeleton and other things from his house. All this clearly shows that accused was already "in custody" within the meaning of Section 27 of the Evidence Act.

60. The question as to the admission of evidence inadmissible under Section 27 of the Evidence Act really lies within narrow campus. Section 27, is an exception to the rules, enacted in Section 25 and 26 of the Act, which provide that no confession made to a police officer shall be proved as against a person accused of an offence and that no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of Magistrate, shall be proved as against such person. Where, however, any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a confession or not. The Section seems to be based on the view that if a fact is actually discovered in consequence of an information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate [Pulukuri Kottaya v. Emperor', AIR 1947 PC 67 (K)].

61. In this case the evidence of PW-6, the Investigating Officer is of much importance when he said that Ram Pravesh after digging the floor of verandah of his house handed over the skeleton of Ramu and other things by recording his confessional statement voluntarily. Thus the operation of Section 27 is attracted and 'prima facie' there is nothing to prevent the evidence being admitted against the accused.

62. As far as theory of extrajudicial confession is concerned, PW-1 has stated that he reached his village from Mumbai on 14.08.1999. In the morning of 16.08.1999 when he was going to attend the call of nature, Ex-Pradhan Rambrat Yadav met him. He told him that accused Ram Pravesh has confessed before him that he has committed the murder of Ramu. But PW-1 has admitted that at that time he was alone and he wrote down the FIR after that. However, no such fact was mentioned in the FIR nor he told anything about this to the Investigating Officer. It is noteworthy that CW-3 Rambrat Yadav has been examined as court witness and he has become hostile. He did not support the statement of PW-1 in this regard. Hence prosecution cannot take any benefit of the statement of PW-1 as extra-judicial confession.

63. As far as the argument of learned counsel for the appellant regarding delayed FIR is concerned, the missing report was already lodged on 09.08.1999, but the police could not arrest the real culprit. Then CW-1, the mother of PW-1 informed her son residing at Mumbai. He reached on 14.08.1999 and after making enquiry at his own end, he lodged the report on 16.08.1999. On his information and after disclosure statement of the accused, the dead body of Ramu was found from the house of accused. In these circumstances it cannot be said that the FIR was delayed or it was lodged after too much delay with some ulterior motive.

64. We do agree with the argument of the learned counsel for the appellant that prosecution cannot take the benefit of the statement of PW-1 when he stated that on reaching his village from Mumbai on 14.08.1999, Ramdev told him that Ram Pravesh had picked up a boy on 08.08.1999 at 8.30 AM, but he did not know about that boy. Ramdev could not recognize his nephew. Then he could understand that the said boy might be his nephew. But PW-1 neither wrote this fact in his FIR nor told the Investigating Officer. CW-4 Ramdev has also not supported these facts. He has been declared hostile. Thus, there is nothing in deposition of CW-4 which might favour the prosecution case.

65. It has been argued that PW-1 and PW-2 have stated that skeleton of Ramu was sent to Police Station and from there it was sent to mortuary while other witnesses of the police have stated that after preparing inquest report skeleton was sent directly to mortuary. In our opinion this is not so material fact, which may hit merit of the case.

66. DW-1 CP No.26 examined on behalf of the defence has only filed S.R. File, which is to be prepared during investigation in accordance with police rules in cases of serious offences. His deposition has not supported the defence version in any way.

67. It is correct that CW-5 has not supported his statement recorded u/s 161 Cr.P.C. that Ram Pravesh (accused) had confessed before him that he kidnapped Ramu and killed him to take revenge of his sister. Witness has been declared hostile and nothing could be extracted by the prosecution in its cross-examination.

68. It has been argued that if the skeleton and spud were recovered from the house of the accused and inquest report was prepared on the spot, then why the recovery of spud was not mentioned in the inquest report Ex. Ka-2. This shows that spud was not recovered from the house of accused. In this regard PW-6 has stated that mistakenly the word 'Khurpi' could not be written on the inquest report. The words 'cutting the throat' have been written in the inquest report and at those places the word 'Khurpi' has been left to be written. PW-6 has also given the explanation that the word 'Khurpi' was used in the recovery memo prepared on the spot. Therefore, he did not think necessary to write it in inquest report. We are of the opinion that the explanation is sufficient and satisfactory and does not affect the merit of the case in any way.

69. It has been argued that there was rust on the spud at the time of recovery and it was not having any blood stains. This shows that death was not caused by this spud and it was also not possible to cause death by the spud. We do not agree with this contention because the boy was missing since 08.08.1999. As per report of the doctor, death might be caused between 09.09.1999 to 16.08.1999, the date of recovery of skeleton. The possibility cannot be ruled out that death might be caused even on 08.08.1999. If so, then during the period of 8 days, rust may form and blood could not be found in chemical analysis as the spud was grounded beneath the earth.

70. Thus, on the basis of aforesaid discussion and after critical appraisal of the prosecution case and the evidence available on record, we are of the considered view that the circumstances from which an inference of guilt is sought to be drawn are unerringly pointing towards the guilt of the accused and the circumstances, taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else; and the circumstantial evidence is complete and incapable of explanation of any other hypothesis than that of the guilt of the appellant. The prosecution has proved its case beyond all reasonable doubt. The Addl. Sessions Judge has not committed any illegality or irregularity in recording the findings of conviction against the appellant Ram Pravesh. As such, there appears to be no justification for interference of this Court and we concur with the same.

71. In view of the aforesaid discussions, judgment and order dated 18.06.2005 passed by the learned trial court convicting and sentencing the accused-appellant Ram Pravesh is hereby affirmed. Accordingly, Criminal Appeal No.2707 of 2005 (Ram Pravesh Vs. State of U.P.) is dismissed. Accused-appellant Ram Pravesh is in jail. He shall serve out remaining period of his sentence.

72. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance. Concerned court shall send compliance report within one month thereafter.

Order Date :- 25-5-2017

Anoop