Badri And Others vs State Of U.P.
2018 Latest Caselaw 2301 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 40
 
CRIMINAL APPEAL No. - 389 of 2011
 
Appellant :- Badri And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.P. Verma,B.D. Shukla,Balendra Kumar Singh, Devendra Kumar Tiwari,V.B. Nayak, Vijay Bahadur Shivhare
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bachchoo Lal,J.

The four appellants before us have been convicted and sentenced to undergo Life Imprisonment along with Rs.10,000/- fine each and in default thereof to undergo ten months' further imprisonment in Sessions Trial No.124 of 2008 arising out of Case Crime No.556 of 2008, Police Station Charkhari, district Mahoba for having committed the murder of Ishwar Das, his son Bhanu Pratap and Smt. Ram Devi wife of Ishwar Das .

The appellants have also been further convicted under Sections 452 and 404 I.P.C. for which they have been awarded additional punishment and fine as per the impugned judgment dated 26.11.2010 of the learned Additional Sessions Judge, Court No.1, Mahoba.

The first information report was lodged on 14.04.2008 by Atroop Singh, the son-in-law of the deceased. The informant is a resident of village Jararwar, district Hamirpur. In the written report tendered by him he has stated that his father-in-law, mother-in-law and brother-in-law have been murdered in the intervening night of 13/14.04.2008 about which he received information on telephone from one Ram Singh of village Gaurhari where his in-laws used to reside. He has further disclosed that there was a land dispute between the appellant Badri and his real brother, the deceased Ishwar Das . It further recites that in his greed to have the share of the land of all the three brothers, the appellant Badri had previously murdered his unmarried brother Chotey Lal and has substantially sold off his share of the landed property. It is because of this greed that the appellant Badri along with his son Ram Naresh, his brother-in-law Govind resident of village Karmer, district Jalaun and his son-in-law Pravesh Kumar resident of village Mavayee, (Rath), district Hamirpur committed the murder of the three deceased at night. They were seen by one Ravindra son of Rameshwar together. Ishwar Das was murdered in the cattle shed across the lane of his house whereas Ram Devi and Bhanu Pratap were murdered inside the house which is reflected in the site-plan. This murder has been committed only with a view to usurp the property of the family and after having committed the offence Badri along with his family has absconded. The informant further narrates that he therefore believed that on account of this lust for property that the murder had been committed by the appellants in a well planned manner and they had also taken-away along with them the motor-cycle and Mobile Phone of the deceased Bhanu Pratap.

The written report was accordingly tendered which was signed by the informant and was transcribed by Vinod Kumar who has been examined as PW-3. The said written report was registered as a First Information Report by Constable Jai Ram at Police Station Charkhari, district Mahoba at about 8.15 a.m. on 14.04.2008.

On the lodging of the first information report the investigation was set into motion on the same day and a spot inspection was conducted by the Investigating Officer with recovery of plain earth and blood stained earth as well as the bedding of the deceased stained with blood and the clothes that were all sealed and a memo of recovery was prepared that was witnessed by Vinod Kumar PW-3 and Arimardan Singh PW-2. Three separate recovery memos were prepared in respect of the items related to the three deceased which were exhibited as Ext. Ka-22, Ka-23 and Ka-24 respectively all witnessed by the same witnesses.

On the next day, i.e. 15.04.2008 on the basis of the information received a police party headed by Lallu Ram Tyagi, Sub-Inspector of Police the Investigating Officer and examined as PW-7 proceeded for arrest of the appellants as well as to make recoveries, if any. Accordingly on the receipt of information that the appellants are likely to come from Kulpahar for going to Mahoba the police party assembled at a particular spot near a culvert waiting for the arrival of the accused appellants, and on getting a signal from the informer, cautioned the appellants who upon having arrived on the spot on a motor-cycle, tried to flee away, but by deploying force they were apprehended at about 1.00 p.m. on the same day. On being apprehended two persons seated behind the driver on the motor-cycle disclosed their names as Badri Prasad and his son Ram Naresh the appellant nos.1 and 2. They divulged that they are residents of village Gaurhari, Police Station Charkhari. The driver disclosed his name as Pravesh Kumar resident of village Mavayee, Police Station Rath, District Hamirpur and the fourth person Govind Singh disclosed his place of residence village Karmer, Police Station Hata, District Jalaun. The motor-cycle of make Splendor Plus was being driven by Pravesh Kumar without any number plate. On being asked about the papers of the motor-cycle he stated that this motor-cycle belonged to the deceased Bhanu Pratap that was lifted by them after having committed the murder. A sum of Rs.300/- was recovered and upon a query being raised they also informed that the mobile of deceased Bhanu Pratap along with a SIM Card that was broken into pieces had been thrown in a river near-by. On being enquired about the murder, all the four accused confessed having murdered Ishwar Das , his son Bhanu Pratap and Rama Devi in the intervening night of 13/14.04.2008 between 1.30-2.00 a.m. They also admitted having a land dispute. Upon an enquiry about the weapons of murder, all the four accused informed the police party that they had hidden the blood stained weapons in the house of Badri. They were two axes. They offered to get the SIM Card and Mobile Phone also recovered whereafter they proceeded in the custody of the police. The motor-cycle was also taken into custody and the memo of arrest and recovery of a motor-cycle was prepared and was witnessed by Vinod Kumar as well as other police personnel including Jaipal Singh who is a Constable and was posted there and who happens to be father-in-law of the daughter of the deceased Ishwar Das .

The police party further proceeded headed by the same Sub-Inspector of Police for recovery of the SIM Card which is alleged to have been recovered from a dry river bed on the pointing out of Badri Prasad, Ram Naresh and Pravesh Kumar. Badri Prasad is said to have confessed having thrown the Mobile Phone and Ram Naresh informed about the place where he had thrown the SIM Card after breaking it. The SIM Card was recovered in three pieces but the Mobile Phone could not be recovered. The SIM Card was wrapped in a paper indicating its number and then kept in a match-box and sealed in a cloth. The recovery memo was accordingly prepared and the same was witnessed by Vinod Kumar as well as the other police personnel.

On the same day two axes that were allegedly utilized for the commission of the offence were recovered from beneath a hardbed (Takht) where it was hidden amidst a pile of cow dung cakes in a room of the house of Badri Prasad. The said recoveries were made on the pointing out of Badri Prasad and his son Ram Naresh. The axes recovered from Badri Prasad had a slightly damaged edge and both the axes were blood stained. The same were sealed and was witnessed by Virendra Kumar and other police witnesses including Jaipal Singh.

On the same day the police party headed by Lallu Ram Tyagi enquired about the clothes having been worn by the accused at the time of the commission of the offence upon which Badri Prasad and his son Ram Naresh admitted having burnt their clothes that were blood stained which they were wearing at the time of the commission of the offence. They pointed out a place near a Neem Tree, very near to where they had thrown the SIM card, where the burnt pieces of the clothes were lying. A recovery of one Pant of gray colour and a shirt of the same colour were found and further a white colour shirt was also recovered that contained blood stain. All of it was preserved in a polythene and stitched and sealed in the presence of Virendra Kumar the witness as well as other police witnesses.

The separate inquest reports of all three deceased was prepared and witnessed by five witnesses which is also part of record.

The bodies of the three deceased were despatched for post-mortem that was carried out on the same day between 15.35 hrs.-5.15 p.m. All the three were reported to have died due to hamorrehage and shock on account of the ante-mortem injuries sustained by them. The duration of the injuries were about half day old and the injuries indicated lacerated and chop wounds on the upper shoulder region on the neck and the spinal cord rupturing the vital parts. Multiple wounds were found on the body of Bhanu Pratap. The number of the injuries and their details are contained in the post-mortem report and have also been proved in the statement of Dr. Anurag Purwar, PW-6 who carried out the autopsy on all the three bodies. The clothes of the deceased recovered from the spot, the bedding, a part of cot material, parts of blood stained earth etc. together with two axes recovered from the house of the appellants Badri Prasad and Ram Naresh were all sent for forensic examination. The blood was found to be existing on the list of the items enlisted from 1 to 25. Human blood was found on item nos.21 to 25 which includes the two axes mentioned at items nos.24 and 25 of the said report. No opinion about the clothes recovered from the accused was given.

The charge-sheet was filed against all the four appellants calling upon them to answer the charges under Section 302 I.P.C. read with Section 34 I.P.C. and Section 404 I.P.C. The trial commenced with recording of the evidence and the first informant Atroop Singh was examined as PW-1, his brother Arimardan Singh was examined as a witness of fact as PW-2. Vinod Kumar who was a witness to the recovery proceeding was examined as PW-3. Jai Pal Singh Constable who is stated to be closely related to the family of the deceased was examined as PW-4. One of the most important witnesses of fact who claimed to have seen the accused appellants talking suspiciously on the fatal day at about mid-night has been examined as PW-5. The doctor who carried out the autopsy namely, Dr. Anurag Purwar was examined as PW-6 and the Investigating Officer Lallu Ram Tyagi, Sub-Inspector of Police was examined as PW-7. PW-8 Jai Ram Prajapati who was the Constable who registered the first information report deposed before the court below and proved the police diaries as well as the lodging of the first information report. The statement of the accused under Section 313 Cr.P.C. was recorded on 26.10.2009 and one Narain Singh was introduced as a witness on behalf of the defence who was examined as DW-1. His deposition is only to the effect that the accused Govind had been lifted by the police personnel of Charkhari Police Station from his village and was promised to be taken to Orai where he would be left.

The trial court thereafter proceeded to assess the evidence and arrived at the conclusion that all the circumstances in the case coupled with the corroborative evidence on record and relying on the recoveries made convicted the appellants for the offences referred to hereinabove and sentenced them to undergo imprisonment with imposition of fine. Hence this appeal.

We have heard Sri B.P. Verma, learned counsel for the appellants and Sri Ajit Ray, learned A.G.A. for the State.

Sri Verma for the appellants has advanced his submissions pointing out that the first information report was lodged after due consultation and it describes everything inspite of the fact that the first informant is neither an eye-witness nor the information received by him through Ram Singh on telephone was proved by examining Ram Singh or producing Ravindra Singh who is the other named witness in the first information report. The entire facts of the utilization of axes as the weapon of assault and of virtually believing the murder to be true having been committed by the appellants indicates that the facts disclosed in the first information report is a planned and orchestrated narration that does not reflect any truth. The basis of enmity of land is unfounded as there were no cases or disputes pending between the deceased Ishwar Das the deceased or his brother the appellant Badri Prasad. He therefore contends that the first information report has been virtually drafted after deliberations and it does not in any way reflect the truth.

He then submits that there is complete absence of motive and the story of enmity of a land dispute between the real brothers was introduced with a view to over-come the enimities of Ishwar Das and his son Bhanu Pratap elsewhere. For this Sri Verma contends that there was a previous enmity of Ishwar Das with one Hari Shanker son of Bhujbal who is a witness to the inquest report in which case Ishwar Das had gone to jail. He also alleges that Ishwar Das had once sold his wheat thrasher to a Scheduled Cast person and on account of a dispute about that transaction there was some enmity between the two. The third incident pointed out is that Ishwar Das had advanced a sum of Rs.70,000/- to one Smt. Prem of his own village in exchange of land but the said lady has neither returned the money back nor did she transfer the land to him which reflected existing deep differences with several other individuals who may have had a possible axe to grind.

While describing the possible enmity of Bhanu Pratap he contends that he was a Panchayat Mitra in the village and he had a dispute with several villagers about the payment of Narega amounts. He submits that the investigating agency nowhere explored these possibilities which may have been the cause of enmity leading to the murder of the deceased.

He therefore submits that there is no strong motive so as to suspect the involvement of the appellants in the wake of the fact that the deceased had other enemies as well in their own village.

He further submits that the deceased was enjoying his own share of land and the appellants had got nothing to do with the same. The land stood peacefully distributed among themselves and they were living separately and therefore no motive could be attributed on account of any dispute of land. He therefore contends that in the absence of any motive the case being one of circumstantial evidence there was no other corroborating material to connect the appellants with the commission of the offence.

He submits that none of the deceased were seen last in the company of the appellants nor the appellants were seen visiting the house of the deceased by any witness. There is no ocular testimony so as to even remotely establish the visit of the appellants to the house of the deceased or even around it. In the absence of any evidence neither the participation nor the involvement of the appellants has been established by any fact which can form the basis of any circumstance so as to link the appellants with the incident even remotely.

He contends that none of the witnesses of fact have been able to establish any overt or covert act of the appellants. PW-1 and PW-2 are real brothers. PW-1 Atroop Singh is son-in-law of the deceased Ishwar Das and PW-2 Arimardan Singh is his elder brother. They are therefore interested and highly partisan witnesses who belong to a different village and can in no way be treated as creditworthy witnesses to support the prosecution story.

He then submits that PW-5 Virendra Singh who has described himself to be a friend of Ravindra (the person who is named as a witness in the first information report and not examined) alleges that he had come to the village to attend a Ramayan Path that was going on at one hrath Tiwaris' place. At about midnight on the fatal day since he had to participate in the recital of Ramayan, on his turn, he got up to attend to the call of nature and washed himself at the hand-pump near-by when about a couple of feet away he saw the appellants conversing with each other with blood stains on their clothes. He describes the appellant nos.1 and 2 to have been wearing a white Kurta and Pyjama and also recognizing them by name and by face. He denied having knowledge of name of appellant nos.3 and 4 who he stated before the court to have recognized by their face. Sri Verma submits that this witness is not creditworthy inasmuch as he states having recognized the appellants in moonlight. According to him this was impossible at the hour when he is alleged to have seen the appellants and even if he had seen them it is not understandable as to why he did not inform the police about his suspicion with regard to the involvement of the appellants whom he found to be gossiping about the incident in moonlight with blood stains on their clothes. Not only this, his statement was recorded after more than twenty days by the police and during all this period he appears to have remained silent. He also alleges not to have disclosed this fact to anyone including the informant and therefore the details in the first information report are clearly an imagination of the informant without any source of information. PW-5 therefore does not appear to be a reliable witness more so when the status of the clothes said to have been seen by him at that hour of night is also different from the clothes that were described by the prosecution to have been worn by the assailants on the fatal day. The assailants are alleged to have been wearing pants and shirts whereas PW-5 has given a description of the appellant nos.1 and 2 wearing a white Kurta and Pyjama.

Sri Verma submits that PW-5 is also an interested witness inasmuch as he has admitted himself to be a cousin brother of the informant in his cross-examination. Thus the informant has virtually tutored and planted PW-5 as a witness who had neither seen any incident nor was he present in the village on the date of occurrence. For this Sri Verma submits that the information to the informant was not given by Virendra, but by Ram Singh on telephone. This also raises a clear doubt about the presence of Virendra on the fatal day. Thus the very circumstance of one of the main witness being present and having seen the appellants talking about the incident is a clear concoctioin which the prosecution has failed to establish by any cogent material and therefore his testimony deserves to be discarded outright.

Sri Verma then contends that the other circumstance of the appellants having been arrested on the motor-cycle alleged to be owned by the deceased Bhanu Pratap is another impossible and unusual circumstance inasmuch as the accused are not expected to be riding the same stolen motor-cycle of deceased Bhanu Pratap with all the four appellants seated on it simultaneously. He submits that no suspect would move around along with a stolen motor-cycle in broad day-light inviting an arrest in the manner in which it has been described by the prosecution. He submits that the arrest is absolutely concocted and the recovery of the motor-cycle is yet another planted recovery. The documents of arrest and recovery of the motor-cycle have been prepared with a view to suit the narration of fact in the first information report and to consolidate a pile of falsehood for creating circumstances in order to involve the appellants. He submits that no circumstances did exist even on the count of arrest and recovery of motor-cycle so as to bring in existence any link in the chain of events.

He then contends that the alleged recovery of the SIM card broken in three pieces could not be proved by any documentary evidence to establish that the SIM card was of the same telephone as belonging to the deceased Bhanu Pratap. In the absence of any such proof the alleged recovery of the SIM Card on the pointing out of the accused is yet another pantomime exercise of the investigation. He has then invited the attention of the Court to the recovery of the weapons of assault which recovery has been made the major basis for convicting the appellants by the trial court. He contends that the alleged recovery is a joint recovery which is impermissible in law and the weapons recovered are small axes the size and dimension whereof does not in any way match with the nature of the injuries inflicted and depicted in the post-mortem report of all the three deceased. He submits that there is no incised wound caused by any sharp edged weapon nor there is any presence of a clean cut so as to match with the description of the wound being caused by axes. He submits that the recovery of two axes only, that too even alleged to have been made from the house of the appellant Badri Prasad, is a patently false and planted recovery, as even if the alleged weapons had been used, the accused would normally not conceal it in their own house when they had chosen to throw away the mobile in a near by river. He submits that it is absolutely unnatural on the part of the prosecution to allege the recovery of the axes from the two of the accused themselves. There is no recovery of any weapon from the appellant nos.3 and 4. The entire recovery on the same day in quick succession is all paper work. He therefore contends that the entire investigation including recovery is tainted and is completely unfair with no element of belief so as to inspire confidence to make them admissible. Consequently, this link of recovery also having not been established either in accordance with the provisions of Section 27 of The Indian Evidence Act, 1872 or otherwise is unbelievable.

To add to this argument he further contends that the alleged recovery of the clothes of the appellants said to be smeared with blood which was packed in a polythene at the time of the alleged recovery was neither sent for forensic examination nor the said clothes were pathologicaly examined to establish the existence of human blood. The testimony of PW-7 was absolutely insufficient on that score and there is no explanation by the investigation as to why the said clothes were not sent for any serelogical examination in order to establish that they were tainted and smeared with human blood. In the absence of any such corroborative proof the testimony of PW-5 of having seen blood stains on white Kurta and Paijama and that of PW-7 having recovered the same is patently false. This is further fortified by the fact as pointed out about that the nature of the clothes which were stated to be Pant and Shirt that were described by PW-5 as Kurta and Pyjama. Thus this link as well was not established in the chain of events and consequently there was no corroboration of the prosecution story so as to complete the links in the chain of events for inferring the guilt of the appellants in the incident in question.

He further submits that Jai Pal Singh, PW-4 who happens to be the father-in-law of Smt. Janki, the daughter of the deceased Ishwar Das is posted as a Constable at the same place and it is he who manipulated the entire investigation and also became witness to the recovery and arrest. His participation therefore is clearly biased and partisan and therefore his testimony in support of the prosecution clearly establishes that the case was fabricated at his instance and behest including the lodging of the first information report and the evidence led during trial. His interference with the investigation therefore establishes that the investigation was tainted and there being no other independent witnesses the entire case of the prosecution fails as it has not been able to prove the case beyond reasonable doubt. The creation and magnifying of the evidence through oral testimony is exaggeration and a creation of the prosecution far from reality. Consequently the trial court committed a grave error in proceeding to found the conviction of all the appellants on the basis of such improvised evidence, hence the appellants deserve to be acquitted and the impugned judgment of the trial court deserves to be set aside.

Learned counsel in order to substantiate his submissions has cited the judgments of the Apex Court in the case of Prakash Vs. State of Karnataka, (2014) 12 SCC, 133, State of Himachal Pradesh Vs. Raj Kumar, (2014) 14 SCC, 39 and judgment in the case of S. Subbulaxmi Vs. Kumarasamy and Ors. (2017) 8 SCC, 125. The judgments are to buttress the legal proposition on circumstantial evidence, on recovery as well as on appreciation of evidence. Another judgment in the case of Anjan Kumar Sarma and Ors. Vs. State of Assam, (2017) 4 SCC, 359 has also been pressed into service to contend that the last seen theory propounded by the prosecution is nowhere established.

Replying to the aforesaid submissions the learned A.G.A. Sri Ajit Ray contends that a strong motive is clearly proved on account of the dispute of land owned by the three brothers namely, Badri Prasad (appellant no.1), Chote Lal (predeceased) and Ishwar Das (deceased). For this he contends that in order to establish enmity and the past conduct of the appellant no.1 Badri Prasad the judgment of Sessions Trial No.321 of 1995, State Vs. Badri Prasad and another dated 28.04.1997 was brought on record as Paper No.46 Kha by the defence itself as it was a judgment of acquittal, but the same judgment demonstrates that it was a day-light incident in which the appellant no.1 Badri Prasad along with one Rajendra was alleged to have assaulted his real brother Chotey Lal who was elder to the deceased Ishwar Das . It was a broad day-light incident which took place at about 11.00 a.m. but on account of an alleged discrepancy and variation in the statement of the eye-witnesses he was given the benefit of doubt and acquitted. The statement of the deceased therein Chotey Lal under Section 161 Cr.P.C. was disbelieved on the count that he was vitally injured and therefore such a long statement before his death in a seriously injured condition could not have been recorded. Ishwar Das and his daughter Janki were witnesses in the said case. The said judgment therefore according to the learned A.G.A. clearly reflects on the past conduct of the appellant no.1 Badri Prasad who again along with his son Ram Naresh and two others murdered, Ishwar Das , his son Bhanu Pratap and Rama Devi wife of Ishwar Das leaving behind two married daughters including Smt. Janki. This was done only to eliminate them as it would not be possible for the married daughters to occupy the property of their father, and this attempt was made by the appellants upon being emboldened by their acquittal in the case of murder of Chotey Lal. The learned A.G.A. therefore submits that a strong motive was very much in the background and the suggestions of enmity with any other person or persons of the deceased was neither proved nor established.

He further submits that merely because there was no cases pertaining to land pending, would not be sufficient to construe the deliberate intent of the appellants that was clearly motivated for usurping the property of the entire family. If the owners are executed there would be no scope for any litigation in between them.

The learned A.G.A. submits that merely because Ram Singh and Ravindra, who are mentioned in the first information report as being the witnesses, were not examined, the same would not be sufficient to discredit the testimony of PW-5 coupled with the testimony of the prosecution witnesses who have corroborated the other evidence on record.

Learned A.G.A. further submits that this is a case of clinching circumstancial evidence where no other hypotheses can be entertained inasmuch as the appellant nos.1 and 2 are of the same family and reside beside the house of the deceased as is evident from the site-plan. It is also evident that they had entered from the back door after breaking it open and also travelled up to to the Gher where Ishwar Das was sleeping. The house of the appellant nos.1 and 2 is just adjacent to the house of the deceased and it is not the case of the defence that the said appellants were not present on that date. He submits that if there is a variation in the description of the clothes as per the statement of PW-5 and the recovery memo then the same is not of any such material significance so as to demolish the entire case of the prosecution. It is urged that the murder was committed in the dead of night in a stealthy fashion and therefore gathering of any evidence about the appellants actually entering the house of the deceased may not have been possible at that dead hour of night when the offence was committed.

It is urged that the statement of PW-5 may have been recorded after more than twenty days but he in his testimony has categorically stated that he did not speak to anyone out of fear. It is therefore urged that this may be a natural conduct on the part of the said witness who on account of his own apprehension may have not voluntarily disclosed the details of the gossip which he had heard near the hand-pump on the fatal day.

On the issue of availability of moonlight so as to enable the prosecution witness to actually see the appellants, it is urged that a Ramayan Path was going on which is usually on a full moon day. The defence has not been able to dislodge this description through any question put during cross-examination.

He then contends that the motor-cycle has been recovered as well as the SIM Card. The motor-cycle was recovered on the spot when they were arrested whereas the SIM Card was recovered on the pointing out of the accused. Similar is the status of the recovery of two axes and therefore the entire recovery is protected by the provisions of Section 27 of The Indian Evidence Act, 1872.

Coming to the weapons used he submits that even if the post-mortem injuries indicate blunt injuries the same can be caused by the reverse edge of an axe. Otherwise also the post mortem reports of all the three deceased stood proved elaborating chop wounds that can be caused by an axe.

Coming to the clothes that were recovered he submits that the same were produced before the court and proved and merely because no forensic examination was carried out the same would not dampen the case of the prosecution.

It is then urged that merely because Jai Pal Singh PW-4 being a relative of the deceased is a Constable in the same area, it can not be presumed that he was instrumental in getting the investigation tailored to suit his purposes or to interfere in a manner so as to influence the entire investigation and falsely implicate the appellants. It is therefore urged that the judgment of the trial court does not call for any interference and the appeal deserves to be dismissed.

We have gone through the records and considered the submissions raised. In a case of circumstantial evidence, the court is hardly benefited by two quite similar accounts of one thing. Depositions, at times are riddled with exaggerations and embellishments that create more puzzles than solutions. The trial court has the opportunity to watch the demeanour of witnesses, yet the depositions seem to be at times overrated or even underrated. A thorough discussion after correctly reading the actual testimony is essential to avoid any omission relevant to gather the intention and draw an inference so as to arrive at the truth. Any depreciation in this labour by the court may ultimately lead to a conclusion that may otherwise adversely affect the prosecution with undue advantage to an accused and conversely may harm the innocent. This deficiency results in perversity, miscarriage of justice and wrong precedents. Evidence and testimony in a case of circumstantial evidence that complete the links in a chain are composed of numberless facts that are to be systemized and arranged after making rational deductions in faults of memory, errors in perceptions derived from the senses and outbursts of passionate excitement. The motives at work and the objects to be attained have to be assessed by attaching due weight to the testimony after consideration of errors in investigation by proportionate reductions on an overall picture that enables the court to either uphold the genesis of the story of the prosecution or to extend the benefit of doubt to the accused. The question of guilt therefore is entirely a matter of inference from circumstantial evidence that has to be drawn from incorruptible, disinterested and enduring testimony. Realistic proof forming part of circumstances based on facts of value corroborated by oral testimony from behind consolidates the traces of a crime and such discovery can turn to good account if the investigation inspires confidence. It is always useful to remember and apply the old adage of criminal investigation, "Circumstances cannot lie, witnesses can and do." The task before the court is to compare and arrange the two with unbiased testimony after deleting all elements of artful deception, mistakes and errors. To derive sifted truthful evidence in the ultimate analysis is what enables the court to hold fast for appraisal.

At the outset, the doubt cast by the learned counsel for the appellants on the precise narrative in the FIR about the name of the assailants, the weapons described long before their recovery and confirmed suspicion deserves to be dealt with. The news of the incident was received by the informant PW-1 appears to have been received immediately after dawn some time in the morning. PW-1 has stated that he arrived at the village, which is obviously the place of the incident. He must have seen the dead bodies and then gone to the police station to lodge the FIR. The timing of the FIR, the inquest report and the despatch of the body for autopsy on the same day coupled with the timing of the post-mortem report and the duration of injury mentioned, establishes the lodging of a prompt FIR. The name of the assailants accusing them of the crime was the most obvious disclosure of suspects in the background of the case. In a family fend like the present diabolical crime, nominating the real culprits with an additional culinary type implication to make the case look stronger by increasing the number of assailants, must have been due to the past enmity and probability as three of the same family had been manually assaulted. The suspicion expressed in the FIR appears to be based on an average assessment by PW-1 who does not appear to have reacted abnormally with the motive of sheer implication. The names disclosed are not out of the hat and can be connected to the motive assigned, but the same is not a proof of final identity that arrives only after evidence is led in the trial and proved by corroborating material. Thus mentioning the names of the accused and firmly believing it to be the names of real culprits is subject to what has been observed above. The precise names in the FIR enable the investigation to work out the case that further enables the prosecution to project the probabilities. The expression of a strong doubt in the FIR about the involvement of the accused in a case of circumstantial evidence does play a vital role for adopting a line of investigation and exploring all possibilities, but the same cannot be a ground to suspect the lodging of the FIR in a case like the present one where three of a family have been axed to death. The description of the exact weapon is a possible outcome of the informant's assessment who saw the injuries and then lodged the FIR. The wounds are lacerated as well as chop wounds. The inquest and the autopsy report have finally corroborated the same. It is therefore not difficult for a villager like the informant PW-1 to describe the weapon with which one in rural life is acquainted with from childhood to manhood. The mentioning of the weapon of assault in the FIR therefore comes with no surprise or even a doubt as urged by Sri Verma learned counsel for the appellants.

We now proceed to examine the evidence leading to the conclusion of the existence of a strong motive by the trial court.

Out of the four appellants, the issue of motive, if any is attributable to only two of the appellants namely, Badri Prasad and his son Ram Naresh. There is no material which may indicate that the brother-in-law of Badri Prasad namely, Govind or his son-in-law, Pravesh Kumar had anything to do with the succession or usurpation of the land belonging to deceased Ishwar Das. The planning of Badri Prasad, if any was to eliminate his brother and usurp the property for himself as was stated by the witnesses. He had already sold off his share of the land. The conduct of Badri Prasad in having faced a trial for the murder of his younger brother Chotey Lal earlier is an old enmity of the family which does not in any way connect the other two appellants Govind and Pravesh Kumar. The number of weapons that have been recovered are only two axes, that too even from the dwelling of Badri Prasad and his son Ram Naresh and at their pointing out. There is no recovery of their clothes with any trace of blood stains. There is no other recovery of weapon or any such incriminating material from Govind or from Pravesh Kumar who admittedly are not residents of that place. It is admitted that Govind is a resident of District Jalaun and Pravesh Kumar is a resident of a locality known as Rath in the District of Hamirpur. It is therefore obvious that these two appellants are neither residents of the same place nor any evidence was led to ensure their arrival in the village either a day before or otherwise having been seen by anyone else. PW-5 has not been able to name these two persons and no identification parade was carried out so as to establish that PW-5 had actually recognized these two appellants. Otherwise also Badri Prasad would not like to involve the brother of his wife or the husband of his daughter in such a crime who were neither to benefit out of it and would rather be subjected to harassment. Thus for all the aforesaid reasons we do not find any probability of the appellant nos.3 and 4 namely, Govind and Pravesh Kumar to be a participant or accomplice in the commission of the offence. The manner of arrest of four persons on one motor-cycle simultaneously also appears to be doubtful and benefit of this doubt should also therefore go to these two appellants. Badri Prasad may have been contemplating the elimination of the deceased but no charge of conspiracy for any planned murder was levelled against Govind and Prevesh Kumar. The common intention and common object for usurping property could at best be attributed to the appellant nos.1 and 2 Badri Prasad and his son Ram Naresh and not the other two appellants.

This occasions a distinction to be noticed that exists on the basis of these peculiar facts differentiating the inference as against appellant nos. 3 and 4. Since PW-5 appeared during investigation at a later point of time he may have tried to embellish the implication of appellant nos. 3 and 4 whose names are also mentioned in the FIR on account of mere suspicion. The informant PW-1 may have been greatly prejudiced due to the family fend and therefore it is quite probable that he may have added the names of the appellant nos. 3 and 4 out of vengeance.

The trial court appears to have believed the entire version of PW-5 without examining the aforesaid facts in correct perspective. The trial court therefore does not appear to have applied sound logic to appreciate the evidence and in a routine manner construed the complicity of the appellant nos.3 and 4 Govind and Pravesh Kumar without there being any clinching and corroborating evidence against them. The facts leading to the circumstances are not sufficient to infer the guilt of these two appellants. Thus the judgment of the trial court convicting these two appellants deserves a reversal.

We now come to the evidence on record to gather motive and complicity against the other two appellant nos. 1 and 2, namely, Badri Prasad and his son Ram Naresh. In our opinion after his acquittal in the case of Chotey Lal, Badri Prasad must have been emboldened with his success. He therefore turned his eyes towards the deceased and his family for eliminating them also. The allegation of enmity of the deceased and his son with some other person was not proved by any evidence. Thus there is no reason to entertain any doubt or possibility of the involvement of any third person in the murder of the deceased, his son and his wife. Even if there was any such enmity, there was no occasion to murder the wife of Ishwar Das . There is no allegation of enmity being harboured by the wife of Ishwar Das , Ram Devi nor is there any evidence to that effect. She was innocent and her murder is clearly a pointer that the assailants wanted to eliminate the entire family. The only probability in this background therefore squarely saturates to the point of guilt of the appellants who are the only possible beneficiaries of the land belonging to the deceased after their elimination.

There is yet another factor which fortifies our belief namely, the deceased Ishwar Das and his daughter Janki were witnesses in the criminal trial faced by Badri Prasad in the murder case of his younger brother Chotey Lal. It is true that he had been acquitted in that case but the probability of habouring vengeance coupled with the idea of usurping the property of the deceased can-not be ruled out. It has come on record that each of the brothers had 13 acres of land each. The obvious gainer would therefore be the appellant Badri Prasad and his son Ram Naresh if the other two branches are eliminated. This is what appears to have been planned and executed by Badri Prasad and his son Ram Naresh in order to achieve the target of usurping the landed property of the entire family. Thus a strong motive was established against appellant nos. 1 and 2 which also convinces us to concur with the trial court to that extent.

The contention of the learned counsel for the appellants that the two witnesses named in the first information report were not produced has to be seen in the light of the fact that the murder was committed at the dead of night and it was only an information about the murder in the morning that was tendered by these witnesses. They were therefore a witness to the transmission of information only which is of no significance if they were not produced.

The evidence with regard to recovery has to be analyzed in the background that two axes were recovered from the dwelling of Badri Prasad and his son, appellant nos.1 and 2. There is a confessional statement in custody upon they having been arrested along with the other accused. The serological report confirms presence of human blood. The injuries in the post-mortem reports of all the three deceased in all certainty as explained by the doctor confirms the same. The chop wounds and the lacerated wounds can be caused by the sharp edges and blunt side respectively. The recovery of the axes from a particular hidden place amidst a pile of cow dung cakes can be only in the special knowledge of the assailants. The weapons were blood stained at the time of recovery which were recovered from the house of appellant nos.1 and 2. Learned counsel for the appellants Sri Verma contends that the size of axes were small and they could not have caused the nature of injuries being lighter in dimension as compared to a heavy, hard and blunt object. He has particularly referred to the lacerated wounds.

We upon a perusal of the recovery memo, the serological report and the opinion of the doctor find the evidence on this score to be satisfactorily persuasive, to be believed to be as true, as the material adduced is corroborative. Otherwise also, strong circumstances, if they remain uncorroborative do not diminish the difficulties in arriving at the truth, but in the present case the mode and manner of recovery by the Investigating Officer as proved by him through his testimony does not create any doubt about the same, not being in accordance with Section 27 of The Indian Evidence Act, 1872 as explained in Privy Council in Pulukuri Kottaya and others Vs. The King Emperor, (1947) 60 LW, 258 followed by State of U.P. Vs. Deoman Upadhyaya, 1960 AIR, 1125 and followed by a Division Bench in the case of Jaikam and others Vs. State of U.P.. 2018 (104) ALLCC, 122.

The assailants are native of the same place. They are villagers and an axe is a household tool almost in very dwelling. It is not a sophisticated weapon the procurement whereof requires any extra effort. Axes of all shapes and sizes are ordinarily available, that too with those who are engaged in farming. The appellants and the deceased are both agriculturists. It would therefore be absolutely normal to presume that the axes utilized as weaponry to commit the offence were very much available. The source of availability was not even a matter of any serious cross-examination. What has been impressed upon before the court below and this Court as well is that the recovery is planted. We find no cogent or even a plausible reason to disbelieve the recovery. The investigating has covered all distances and made inspection merely because swiftly, the exercise within a shot span of time can-not be termed as impossible with a confessional disclosure of the place of hiding of the entire incriminating material including the weapons.

Coming the evidence of connecting the weapons with the nature of injuries, there is no precise cross-examination by the defence but even otherwise the force and violence with which a small weapon is used can also cause such injuries. This was further a matter of expertise if the defence had any doubt about the same. Nothing was tendered or advanced by the defence so as to infer that the size of the axes could not have caused the injuries sustained by the deceased. The recovery from the dwelling of appellant nos.1 and 2 and its utilization for the commission of the offence by these two appellants is nowhere in doubt. The two axes at the time of assault must have been with two persons. Thus assault by the appellant nos.3 and 4 can-not be presumed in the absence of direct evidence. If weapons used by all of them were hidden and recovered at their pointing out, then there is no explanation by the prosecution of other weapons that could be related to the appellant nos.3 and 4. They cannot therefore be tied up to the special disclosure of the weapons hidden by appellant nos.1 and 2 so as to draw any inference against them.

What is more astonishing is that Badri Prasad and his son Ram Naresh must have been in their own adjoining dwelling unit on the fatal day and they have not denied this fact. Their presence therefore on the date, time and place of incident can not be doubted. They have neither claimed alibi or have shown their presence elsewhere. It is strange that Badri Prasad and his son Ram Naresh did not react in any way upon the murder of their three family members namely, Ishwar Das , his son Bhanu Pratap and Ram Devi wife of Ishwar Das. The murder has been committed just next door. Two of them were murdered inside the dwelling unit and Ishwar Das was murdered in his Gher just across the lane in front of his house. There is no explanation coming-forth from these two appellants about this dastardly crime which was committed adjoining to their premises and which can be presumed to be eminently and exceptionally within their knowledge. Had the appellants been able to prove their absence from the village on the fatal night, a different inference was possible. It is not that the appellants were obliged to prove their innocence or prove that they had not committed the offence. All that was required of the appellants was to explain the unusual situation namely, of the ghastly murder being committed nowhere else than in the adjoining premises of their family members. A total absence of any such explanation therefore raises a strong presumption about their probable complicity.

It is here that the provisions of Section 106 of The Indian Evidence Act, 1872 are clearly attracted. The Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC, 211 referred to an earlier decision as follows in paragraph no.16 thereof:

16. Way back in Shambhu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 :1956 SCR 199 this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:

This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

It is correct that the testimony of PW-5 in a moonlit night may or may not inspire confidence yet recognition of a person in moonlight is acceptable as has been held by the Apex Court in the case of State of Uttar Pradesh Vs. Ashok Kumar and another, (1979) 3 SCC, 1 wherein in paragraph nos.3 and 4 it has been ruled as follows:

"3. According to the prosecution the deceased along with P.Ws. 1 & 2 had gone to Atarra to witness a drama in the Ramlila Grounds. The party reached Atarra at about 9 o'clock and the drama finished at about 12 o'clock. Baura and Chanada P.Ws. 2 and 5 were also with the deceased Budhi Bilas when he was returning from the Natak. It is alleged that at about 12.30 a.m. the respondent-Ashok Kumar fired a few shots which hit the deceased as a result of which he died instantaneously. The two eyewitnesses P.Ws. 1 and 2 admittedly saw the firing from a distance of about 150 yards, as would appear from an examination of the site plan Ka-23 and which is endorsed by P.W. 1 who stated in his evidence that he has given the detail of the place from where they saw the occurrence to the Investigating Officer at the spot.

The first question which falls for consideration is as to whether or not the witnesses would be in a position to identify the respondents from such a large distance at night. It is true that it was a moon-lit night but from a reference to the almanac it would appear that the moon had covered 3/4th distance on the night of occurrence and was to set at 3.23 a.m. Even though there may be some moon light at that night, it is difficult for the witnesses to identify the respondents or even if they did the possibility of mistake in identification cannot be completely excluded. In this connection, we may refer with advantage to the following passage appearing in Dr. Hans Gross's Criminal Investigation at page 185:

By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet, in bright moonlight at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet. In tropical countries the distances for moonlight may be increased.

4. The opinion of Gross referred to above fully fortifies our conclusions that it was not possible for the witnesses to have identified the respondents even in moonlight from a distance of about 150 yards. In these circumstances, therefore, the High Court was fully justified in holding that it was not possible for the eye-witnesses to identify the respondents from such a long distance on the night of the occurrence. The prosecution suggested that the witnesses had lighted their torches and it was in the light of torches coupled with moonlight that identification was possible. In the first place, we find it difficult to believe that after Ashok Kumar had given a call and fired, the witnesses would dare to flash the torch light and expose themselves to the risk of being shot themselves. Secondly, even if torches were lighted, in view of the large distance, it would not be possible for the witnesses to identify the respondents with absolute certainty."

In the instance case also it is evident that a Ramayan Path was going on and PW-5 was an active participant and performer in the said ceremony. It is quite possible that he may have seen some shifting feet and may also have come across some individuals but he does not appear to have confirmingly recognized the appellant nos.3 and 4 and while describing the clothes of appellant nos.1 and 2 he has described a different set of clothes which were not proved by supporting serological findings about the blood stains thereon.

Thus a conviction can-not be sustained on the strength of such evidence, but the said witness did say that he knew appellant nos.1 and 2 and named them during his testimony. The performance of a Ramayan Path on a moonlit night is not unnatural inasmuch as such functions are usually held on full moon (Puranmasi) day. PW-5 is of the status of the chance witness who may have erroneously or out of any embellished idea mentioned the alleged presence of the appellant nos.3 and 4 but he does not appear to be harbouring any motive to falsely implicate the appellant nos.1 and 2.

Apex Court in the case of Sachchey Lal Tiwari Vs. State of U.P.. AIR 2004 SC, 5039 in paragraph no.7 has observed as follows:

"7... Murders are not committed with previous notice to witensses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."

In this background and with the recovery of the weapons from the appellant nos.1 and 2 that was kept concealed in their own house, clearly raises a presumption of guilt against these two appellants. The links therefore do indicate the chain of events with no explanation coming-forth from the appellant nos.1 and 2 about their whereabouts on the fatal night. To the contrary as discussed above the links clearly appear to be established against these two appellants in the light of principles laid down by the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC, 116, Trimukh Maroti Kirkan Vs. State of Mahrashtra 2006 (10) SCC, 681 and in the case of State of Himachal Pradesh Vs. Raj Kumar 2018 (2) SCC, 69.

The contention that PW-1 and PW-2 are real brothers related to Ishwar Das and therefore they are partisan witnesses, the same is of no relevance inasmuch as they came to know of the crime only the next day. They have not exaggerated or embellished any material fact except as observed above so as to doubt their creditworthiness. Merely because one is related, is not compulsorily disqualified to render trustworthy testimony. Reference be had to the observations of the Supreme Court in the following cases; State of Rajasthan Vs. Smt. Kalki and another, AIR 1981 SC, 1390, State of Uttar Pradesh Vs. Kishanpal and others, (2008) 16 SCC, 73, Chaudhari Ramjibhai Narasangbhai Vs. State of Gujarat, (2004) 1 SCC, 184, Maranadu Vs. State by Inspector of Police, 2008 Cri.L.J., 4562 and in the case of Ramesh Chand Rai and others Vs. State of U.P. in Criminal Appeal Nos.162 and 89 of 2011. There is no reason available on record as to why false implication of Badri Prasad and his son Ram Naresh be inferred. On the other hand there is enough convincing evidence to believe the complicity of these two appellants. The non-examination of Ravindra who is stated to be a friend of PW-5 in whose company they were present on the fatal day in a Ramayan Path would not obliterate the other evidence of recovery and the other incriminating material so as to diminish the strength of the case of the prosecution. PW-5 has described seeing the appellants in moonlight but he failed to convincingly identify the other two appellants namely, Govind and Pravesh Kumar. This therefore does not reduce his credibility in having heard the appellants gossiping particularly Badri Prasad and his son Ram Naresh who have been identified and recognized by him. The recording of the statement of PW-5 by the police after twenty days does not disqualify him as a proper witness inasmuch as any such minor lapses on the part of the investigation cannot be fatal for the prosecution if the case has been substantiated by corroborating evidence against these two appellants.

With all the aforesaid facts and the evidence that has been brought on record we are of the opinion that the prosecution has failed to lead clinching evidence so as to bring about the conviction and guilt of the appellant nos.3 and 4 namely, Govind and Pravesh Kumar but on the other hand there is a strong motive strengthened by sufficient material corroborative evidence as discussed hereinabove to convince the court to uphold the conviction and sentence of the appellant nos.1 and 2 namely, Badri Prasad and his son Ram Naresh. There is no other alternative hypotheses that can be possibly deduced or thought of on the basis of the entire evidence in the present case and therefore the complicity of appellant nos.3 and 4 appears to be clearly doubtful and they are entitled to the benefit of doubt but for all the reasons given by us the there can not be a second opinion that the case set-up by the prosecution has been proved beyond reasonable doubt against the appellant nos.1 and 2.

We accordingly partly allow the appeal and set aside the conviction and sentence of appellant nos.3 and 4, namely, Govind and Pravesh Kumar. We also set aside the imposition of fine on them which shall be refunded if deposited. They are on bail their bail bonds shall stand discharged subject to compliance of Section 437-A Cr.P.C.

The appeal is dismissed in so far as appellant nos.1 and 2, namely, Badri Prasad and his son Ram Naresh are concerned. They shall serve out the sentences awarded to them.

Appeal partly allowed. A copy of the judgment be despatched to the court below for necessary compliance.

Order Date: 04.09.2018

R./