Allahabad High Court
Purshottam Rai vs State Of U.P. on 7 September, 2018
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
(AFR)
Reserved on 10.7.2018
Delivered on 07.9.2018
Court No.34
(1) CRIMINAL APPEAL No. - 2577 of 1983
Appellant :- Purshottam Rai
Respondent :- State Of U.P.
Counsel for Appellant :- S.C.Srivastava,B.N.Rai,Prashant Singh, Amicus Curaie
Counsel for Respondent :- A.G.A.
Connected with
(2) CRIMINAL APPEAL No. - 3050 of 1983
Appellant :- Purshottam Rai
Respondent :- State Of U.P.
Counsel for Appellant :- Prashant Singh, Amicus Curaie
Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi,J).
1. As both these appeals arise out of same judgment and order dated 18.7.1983 passed by IVth Additional Sessions Judge, Ghazipur in Sessions Trial No.91/1982 arising out of Case Crime No.79/1981, whereby the appellant has been convicted and sentenced under Section 302 of I.P.C. with Life Imprisonment, both are being decided together by this common judgment.
2. We have heard Shri. Prashant Singh, learned amicus Curaie on behalf of the appellant, Shri Rishi Chaddha learned A.G.A. for the State and have carefully gone through the lower court's record.
3. The facts in brief are that the deceased Ramdeo Rai, the father of the accused-appellant Purshottam Rai, was living jointly with the family of his real brother Bhola Rai. Both the brothers had 30 bighas of land having joint title and possession. The accused-appellant is the only son of Ramdeo Rai, whereas Bhola Rai has four sons namely Paramhans Rai, Balmohan alias Babbban Rai, Manoj Kumar Rai and Ravindra Nath Rai and three daughters. Their residential house was situated in the main abadi of village Sherpur Kalan, whereas they had a thatched accomodation (Dera) in their fields where they used to keep agricultural goods and cattles. A pumping set was also installed there. The deceased Ramdeo Rai used to sleep at Dera for the purpose of watching the crops, cattles and the pumping set. The accused-appellant Purshottam Rai had lost his mother in his childhood and he himself was issueless. It is stated that perhaps due to this reason, he and his wife had become short tempered. The appellant was pressurizing his father, deceased Ramdeo Rai, to separate his share from the family of his brother Bhola Rai by a partition, but the deceased was not adhereing to this, despite several attempts made by the accused. As a result, there weres clashes between the father and the son, off and on.
4. The prosecution case in this background, is that in the evening of 1.6.1981 at about 8 P.M., the accused-appellant had gone to the Dera taking with him the meals for his father. At about 3 A.M. in the intervening night of 1/2.6.1981, he returned back to his house and awaken his cousin brother Ravindra Nath Rai (P.W.1) and Paramhans Rai (not examined) informing them that some dacoits had killed his father and had looted away the cattles from the dera. Hearing this, Ravindra Nath Rai and his brother Paramhans Rai called Om Prakash Rai @ Bechan Rai (P.W.5), Surendra Rai and Tarkeshwar Prasad (not produced) of their village and proceeded towards the Dera. On their way they also picked up Narain, Banwari Singh Yadav (not produced) and his two sons Sati Ram (P.W.3) and Vikrama (not produced). On reaching their Dera, they found their Uncle deceased Ramdeo Rai lying on his cot in a pool of blood inside the thatched accomodation, but they found the cattles, pumping set and all other things in the Dera intact. Moved by the pathetic scene, P.W.1 Ravindra Nath Rai and his brother Paramhans Rai burst into tears and came out in the Khalihan. The appellant also followed them. Meanwhile, the dawn had approached and in the light the witnesses noticed blood stains on the clothes of the appellant. When they enquired, the appellant informed that his clothes might have got blood stains while he was seeing his deceased father. After that the appellant went away towards village Sherpur Kalan. P.W.1 Ravindra Nath Rai and his brother thought that the appellant might have gone to lodge the F.I.R., but after sometime the appellant came back with changed clothes.
5. In the meantime, the village Chowkidar Jagarnath gave oral information at the police outpost of Sherpur Kalan about the murder of deceased Ramdeo Rai, on the basis of which case was registered against unknown criminals at Case Crime No.79/81 under Section 302 I.P.C. The check report (Exhibit Ka-8) was prepared and relevant entries were made in the General Diary (Exhibit Ka-1).
6. On 02.6.1981, Sub Inspector Jagdish Singh Yadav (P.W.8) was entrusted the investigation of the case, who immediately rushed to village Sherpur Kalan where he met the village Chowkidar Jagarnath Yadav (the Chowkidar/first informant could not be examined due to his death during trial). The Investigating Officer proceeded to the spot where he met the appellant and recorded his statement. He took the corpse in his custody, conducted the inquest proceedings and sent the body for postmortem.
7. P.W.6 Dr.D.N. Prasad conducted the postmortem examination on the dead body and he found the following antemortem injuries:
a. Incised wound 3 cm x1 cm x bone deep over scalp, 5cm about right elblow.
b. Incised wound 7 cm x1 cm, 7cm below and behind right ear.
c. Incised wound 15 cm x 3 cm x bone deep, 2 cm below right ear and extended from right ear to back of neck upto midline.
d. Incised wound on whole circumference except 5 cm on back and attached with the body with a tag of skin on posterior aspect of neck. All the muscle and vessels of neck were cut by the injury and vertebra were separate at the level of C3/C4. The injury was 2 cm above the sternal notch.
e. Incised wound 3cm x 1/2 cm on back of right hand 4 cm below right wrist joint.
f. Incised wound 7 cm x 1 1/2cm x bone deep, oblique, 2 cm above on medial to top of left shoulder.
g. Incised wound 5 cm x 1 cm x bone deep, 3 cm below injury no.6.
h. Incised wound 6 cm x 2cm x bone deep, 2cm below injury no.7.
According to Dr.D. N. Prasad (P.W.6) the death of the victim had occured due to shock and haemorrahage as a result of ante-mortem injuries. He has opined that the ante-mortem injuries found by him on the dead body were sufficient in ordinary course of nature to cause death of the deceased instantaneously and were caused by some sharp edeged weapon including Gandasa and the death could have taken place on the intervening night of 1/2-6-1981 any time after mid night.
8. The Investigating Officer collected the blood stained and plain soil from the spot. He took the blood stained bedding of the deceased including a 'quilt', a 'kathari', a 'kurta' and a piece of jute cloth having blood on it and prepared the memos. During this period, the Investigating Officer felt the necessity of further interrogation of the appellant, but he could be found at the spot. The Investigating Officer was informed that the appellant had been seen going towards Sheik-Ka-Tal. Then the Investigating Officer, along with some police personnel and public witness Ram Nagina Singh (P.W.4) and Samirathi (not produced) went towards Sheik-Ka-Tal and saw the accused-appellant sitting there, who after seeing the police party, made a futile attempt to run away, but was overpowered and was taken into custody.
9. On further interrogation, accused-appellant confessed his guilt and stated that the clothes he was wearing at night were stained with blood while he was murdering is father so he had washed them and he can give those clothes and the 'gandasi' with which he has killed his father, to the police. Thereafter, appellant led the police party to the north eastern room of his house from where he took out a wet 'Dhoti', 'Gamchha' and 'Baniyan' and gave them to the Investigating Officer who prepared a memo in respect of them (Exhibit Ka-5). All the wet clothes, had visible blood spots on them even after washing. The Investigating Officer, after drying those articles, sealed them in a bundle and sent to forensic science laborotary for chemical examination. He also prepared the site plan of the places from where those articles had been recovered. Thereafter, the accused-appellant led the police party and the witnesses to the Dera from where he took out a blood stained 'Gandasa' (material exhibit-8) having chaff particles stuck on the blood stains. The Investigating Officer prepared its memo and after concluding the investigation submitted chare-sheet (Exhibit Ka-17) against the appellant under Section 302 I.P.C. Positive reports of chemical examiner and the Serologist were received which are Exhibits Ka-18 and 19 respectively on the record.
10. The case being triable by the court of sessions, it was committed to the sessions court where charge under Section 302 of I.P.C. was framed against the appellant who denied from the same and claimed to be tried.
11. The prosecution, in order to prove its case examined as many as eight witnesses, ouf ot which P.W.1 Ravindra Nath Rai, P.W.3 Satiram, P.W.5 Om Prakash Rai and P.W.4 Ram Nagina Singh are the witnesses of fact, whereas the P.W.2 Babunandan Dube, P.W.6 Dr. D.N.Prasad, P.W.7 Retired Head Constable Nanhakoo Singh and P.W.8, Sub Inspctor Jagdish Singh Yadav are of all formal character.
12. Besides, it the prosecution also filed affidvaits of Constable Hardev Rai, Head Constable Sadho Singh, Malkhana Moharrir, Surya Nath Mishra, a clerk of C.M.O. Office, and Shri Bhola Nath, a peon of that Office, in support of its case.
13. After conclusion of the prosecution evidence, the statement of the apellant under Section 313 Cr.P.C. was recorded in which he denied from the allegations and while taking the "plea of alibi" he stated that he was not present at his house in the night of the incident. He was at village Laduar and he had returned to his village Sherpur Kalan on the next day after receiving the information about the murder of his father. He alleged that his uncle Bhola Rai has falsely impicated him in order to usurp the entire property and all the witnesses are the favourites of police.
14. The learned trial court, after scrutinizing the evidence in detail, found the prosecution case worthy of credit and convicted and sentenced the appellant as aforesaid.
15. The legality and correctness of the impugned judgment of conviction has been challenged by the learned amicus curaie in the present appeal mainly on the following grounds:
1. There is no eye witness of the occurrence and the entire prosecution case rests on circumstantial evidence. However, the chain of circumstance is incomplete.
2. The witnesses of fact are inimical and are highly interested witnesses.
3. P.W.4, Ram Nagina Singh who is a witness of recovery of blood stained clothes of the accused and blood stained Gandasa, is a chance witness. He is not a resident of Village Sherpur Kalan. He is also a professional witness, often used by the police to make out a false case.
4. Appellant has been falsely implicated in this case on the basis of fabricated and a planted recovery. The disclosure statement alleged to be made before the police and the alleged recovery cannot be relied upon because at the time of recovery, the accused was not in the police custody.
5. There are material contradictions in the statement of the witnesses for example P.W.4, Ram Nagina Singh has stated that:-
"pkjikbZ ij yk'k fpr gkyr esa Fkh 'kjhj dk dksbZ fgLlk pkjikbZ ls ckgj ugha fudyk FkkA^* "Dead body lay in horizontal position on the cot; no part of body was found out of cot."
On the other hand P.W.5 Om Prakash Rai has stated as under:-
"cl[kV ij mudh yk'k csM+h gkyr esa Fkh jtkbZ [kfV;k ds fljgkus Fkh vkSj jtkbZ ds cxy esa jkenso dh yk'k Fkh--------------- yk'k dk xnZu dk fgLlk pkjikbZ ls yVdk Fkk vkSj iSj Hkh pkjikbZ ls yVd jgk Fkk iSj tehu Nw jgk Fkk ;k ugha ;g /;ku ugha fn;kA^* "His dead body lay on bamboo-cot in horizontal condition, quilt was on the head side of cot and dead body of Ram deo was lying beside the quilt.....Neck part of dead body was hanging outside the cot, feet were also hanging out of the cot touching the ground. I did not notice whether feet were touching the ground or not." (English translation by Court)
6. There is no cogent evidence about any quarrel taking place between the appellant and the deceased Ramdeo Rai prior to the occureence.
7. There was no motive with the appellant to kill his real father.
16. On the aforesaid grounds, it has been contended by the learned counsel for the appellant that the learned trial court, without a proper appreciation of evidence has wrongly convicted the appellant only on the basis of surmises and conjectures by the impugned judgment, which is liable to be set-aside.
17. Per contra, learned A.G.A. has vehemently contended that all the circumstances in this case form a complete chain, pointing out only towards one and only hypothesis that it was the appellant and no one else, who had killed the deceased Ramdeo Rai. Learned A.G.A. has contended that the cattles were found intact by the witnesses tied with their pegs at Dera. The clothes of the appellant were found stained with human blood and even after washing, the blood was visible on them. The appellant had strong motive to kill his father because he knew very well that his father would not get the property divided during his lifetime. Learned A.G.A. has further contended if some dacoits had killed the deceased and the appellant had the knowledge about the dacoity, why he did not go to the police station to lodge the F.I.R.? Learned A.G.A. has contended that the subsequent conduct of the appellant clearly indicates his guilt.
18. On the aforesaid grounds it has been contended by learned A.G.A. that the learned trial judge, after taking into consideration all the circumstances, has rightly convicted the appellant by the impugned judgment and there is no need to interfere in the same.
19. We have considered the rival contentions advanced by the learned counsel for the parties and have carefully analysed the evidence available on record.
20. In the present case, there is no eye witness of the occurrence and all the witnesses have reached at the spot when the murder had already taken place, therefore, the present case rests entirely on circumstantial evidence.
21. The law regarding circumstantial evidence has been well settled by a catena of judgments by Hon'ble Supreme Court.
22. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, a Bench of three Judges of the Apex Court, after analysing various aspects, laid down certain cardinal principles for conviction on the basis of circumstantial evidence. The Supreme Court laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established:
"153....(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established...
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the pansheel of the proof of a case based on cicumstantial evidence."
23. Recently, in the case of Ganpat Singh Vs. The State of Madhya Pradesh 2017 (7) Supreme 377, the Court has once again reiterated the law relating to circumstantial evidence as follows:
"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
24. Now, it is to be seen whether the circumstances in the present case form a chain so complete so as to rule out any possibility that the appellant has not committed the murder of his real father? In other words whether all the circumstances in this case are of such nature that they point out only towards the guilt of the appellant and towards no other hypothesis.?
25. In a case resting on circurmsantial evidence, ''Motive' forms an important link in the chain of circumstances. Behind every criminal act there is always a motive which impels a criminal to commit a particular crime. In the cases, where direct evidence is available, the motive becomes somewhat irrelevant. However, in the cases based on circumstantial evidence, the motive assumes significance as it is the guiding force behind the crime and in absence of any proof about motive, it would be very difficult for the prosecution to prove the guilt of accused against whom there is no ocular evidendence.
26. In so far as the case in hand is concerned, the prosecution, in the present case has successfully proved the 'motive'. The evidence available on record clearly shows that the father of the appellant (deceased Ramdeo Rai) and his son (appellant-Purshottam Rai) were divided in their veiws over the partition of family property. The families of two brothers were living together. The family of Bhola Rai had several members as he had seven children. Whereas the family of the deceased Ramdeo Rai had only one son namely the appellant-Purshottam Rai, but the family being a joint family, its assets were being enjoyed equally by all the members.
27. The statement of P.W.1-Ravindra Nath Rai in paragraph 17, also shows that appellant's Uncle Bhola Rai used to pay the expenses to the deceased Ramdeo Rai according to his needs. Thus, the income of joint family was in the control of Bhola Rai i.e. the Uncle of the appellant. Under these circumstances, it was but natural for the appellant to have an intention to get his father's share separated so as to enable him to have full enjoyment of his father's share in the property, being the only son. However, the deceased Ramdeo Rai was against the partition and he used to say that he will not seek partition from his brother who for him is like 'Bharat' to 'Ram'.
28. The statements of P.W.1, Ravindra Nath Rai son of Bhola Rai, P.W.3, Sati Ram who is a neighbour and P.W.5, Om Prakash Rai, a villager who hails from the same village, clearly show that the appellant was bent upon to get the property partitioned. However, the deceased Ramdeo Rai never succumbed to the pressure.
29. P.W.3, Sati Ram whose 'dera' is situated near the 'dera' of the deceased, has deposed that on the fateful night of the incident he had heard the noise of quarrel between the father and son at about 9 or 10 P.M. P.W.3 has also stated that the dispute over partition existed between the accused and the deceased since last two years prior to the occurrence. The evidence of P.W.1, Ravindra Nath Rai and P.W.5, Om Prakash Rai corroborates the same facts. P.W.3, Satiram and P.W.5 , Om Prakash Rai are the residents of the same village and there is no enmity between them and the appellant, therefore, there is no reason with them to falsely testify against the appellant. They are the natural witnesses and in absence of any allegation of enemity against P.W.3 and P.W.5, both of whom are the neighbours, they cannot be termed as interested witness.
30. Thus, the motive behind the crime in this case has been well established by the evidence adduced by the prosectuion.
31. The appellant has been 'lastly seen' by the witnesses while he was going towards the Dera where his father (deceased) used to sleep in the night. P.W.1 Ravindra Nath Rai has deposed that in the night of the incident at about 8 P.M. the accused had left the house for his Dera taking the meals for his father. P.W.3, Satiram has heard the sound of quarrel emanating from the Dera in the night. All the three witnesses have deposed having seen the appellant between 3 and 4 A.M. in the midnight of the occurrence.
32. In this regard the statement of P.W.1, Ravindra Nath Rai is relevant which is quoted below:-
"?kVuk gq;s vkt ls ,d o"kZ 20&22 fnu gqvk iqj"kksRre eqyfte [kkuk [kkdj 8 cts jkr vius firk th dk [kkuk ysdj ikgh ij x;s mlh jkr djhc 3 cts Hkksj esa og ?kj ykSVs vkSj eq>s rFkk ijegal jk; esjs cM+s HkkbZ dks txk;k vkSj dgk fd Msjs ij cnek'kksa us eosf'k;ksa dks ywV fy;k gS vkSj firk th dks ekj fn;k gS xkWo ls lqjsUnz jk;] vkse izdk'k jk; mQZ cPpu jk;] rkjds'oj jk; dks ysdj ikgh dh vksj x;s jkLrs esa ukjk;u igyoku dks muds Msjs ij ls cuokjh flag ;kno ds Msjs ls mUgsa rFkk muds nks yM+ds lfrjke o fodzek dks ysdj vius ikgh okys Msjs ij igWqpk rks ogkW Msjs ij eM+bZ esa cM+s firk jkenso jk; dks pkjikbZ ij ejs iM+s ik;k mudh xnZu dVh gq;h Fkh tkuojksa dks lgh lyker [kwVs ij cW/ks ik;k ge yksx ;g fLFkfr ns[kdj jksus yxs] og n`'; ugha ns[kk x;k rks ge o ijegal jksrs gq;s eM+bZ ds cxy esa fLFkr vius [kfygku esa pys vk;s iqj"kksRre Hkh ge yksxksa ds lkFk [kfygku esa pys vk;s ml le; losjk gksuk 'kq: gks pqdk Fkk rks ge yksxksa us iqj"kksRre eqyfte ds diM+ks ij [kwu ds NhVs iM+s ns[ks tks os igus FksA geus iwNk fd dSls vki ds diM+ks ij [kwu ds NhVs iM+s gS rks vius diM+ks dks ns[krs gq;s tokc fn;k fd firk th dks ns[kus esa ;s [kwu ds /kCcs yx x;s gksaxsA ;g dg dj iqj"kksRre xkWo dh vksj pys x;sA tc iqj"kksRre xkWo dh rjQ x;s rks ge yksxksa us le>k fd ;s iqfyl pkSdh lwpuk nsus x;s gksaxsA fQj dqN nsj ckn iqj"kksRre ykSV dj vk;s rks os diM+s cnys gq;s igus gq;s FksA^* "Occurrence took place 1 year 20-22 days back. After taking meal, accused purshottam went to Pahi (a house/structure constructed at place remote from the main house) alongwith meal of his father, at 8 O'Clock in the night. The same night at about 3 O' Clock, he (accused Purshottam) returned home and awakened me and my elder brother Pramhans Rai and said that miscreants had looted cattle at dera (house) and assasinated his father. Thereafter, taking Surendra Rai, Om Prakash Rai alias Bachhan Rai, Tarkeshwar Rai, all went towards Pahi and on the way they took Narayan Pahalwan, Banwari Singh Yadav and his two sons Satiram and Vikrama from their residence and reached the house situate at Pahi, where he found his elder Uncle (Ramdeo Rai) dead on the cot in the madai (thatched house) of the house. His neck was cut. All the cattle were found tied intact. Seeing this situation, we started crying. When we could not bear the scene, I and Param Hans came to khalihan (harvesting place) situated beside the thatched house. Purshottam also came to khalihan with us. By that time, it started day dawn. We saw spots of blood over the clothes worn by accused Purshotttam. When we enquired how there existed blood spot on his clothes, he replied that while seeing his father, these spots might have caused. Saying this, Purshotttam went towards village. When Purshottam went towards village, we guessed that he would have gone to Police Chowki for lodging F.I.R. After sometime, when Purshottam came back, he was wearing changed clothes." (English translation by Court).
33. P.W.3 Satiram has also deposed as under:-
"?kVuk gq;s vkt ls 13&14 ekg ds djhc gqvk ?kVuk dh jkr eSa esjs firk o HkkbZ lkgc vius Msjs ij gh Fks ml jkr 4 cts Hkksj esa esjs Msjs ij vkseizdk'k jk;] lqjsUnz jk;] rkjds'oj jk;] iqj"kksRre jk;] jfoUnz jk; o ijegal jk; igWqps muds lkFk esjs Msjs ds if'pe fLFkr Msjs ds ukjk;u igyoku Hkh Fks bu yksxksa us ge yksxksa dks txk;kA jfoUnz us eq>ls dgk dh fd iqj"kksRre jk; dg jgs gS fd Msjk cnek'kksa us ywV fy;k gS rFkk ckcw th dks ekj Mkyk gSA eSa] esjs firk o HkkbZ fQj bu yksxksa ds lkFk jkenso ds Msjs ij x;s ogkW ij xks:&cNM+u lc lgh :i ls vius txg cW/ks ik;k ifEix lsV e'khu o iV~Vk oxSjg Hkh lc lgh Fkk fdlh pksjh ;k ywVikV dk dksbZ fu'kku ugha Fkk ykyVsu tykus ij ns[kk fd jkenso jk; eM+bZ esa pkjikbZ ij dVs iM+s gq;s FksA ;g ns[kdj ijegal jk; o jfoUnz jk; jksus yxs vkSj Msjs ds if'pe fLFkr vius [kfygku esa jksrs gq;s pys x;s mUgha yksxksa ds lkFk iqj"kksRre jk; Hkh ogh pys x;s ml le; mtsyk gksuk 'kq: gks x;k FkkA fQj ogkW ls iqj"kksRre jk; [ksrksa ls gksdj vius xkWo dh vksj pys x;sA ?kVuk dh jkr 9&10 cts jkr dks jkenso jk; ds Msjs ls >xM+s dh vkokt jkenso jk; e`rd o iqj"kksRre jk; ds chp dh fey jgh Fkh mlds ckn ml jkr ywVikV ;k fdlh vU; pht dh dksbZ vkokt ge yksxksa dks lqukbZ ugha iM+hA^* "It was about 13-14 months back when the incident took place. In the night of incident, I my father and brother were present in our house. In that night at about 4 O' Clock in the morning, Om Prakash Rai, Surendra Rai, Tarkeshwar Rai, Purshottam Rai, Ravindra Rai and Paramhans Rai came to my house and along with them, Narayan Pahalwan whose house is situated towards west of my house, was also present. They all awakened us. Ravindra said to me that Purshottam Rai was saying that miscreants had looted the Dera and also killed his father. I, my father and brother accompaying them, went to the house of Ramdeo and found cattle tied in tact at their respective places. Pumping set machine and belt etc, were also intact. There was no sign of any theft or loot. On lighting lantern, we saw that Ramdeo Rai was lying on the cot slained. Seeing this, Paramhans Rai and Ravindra Rai started crying and went to their khalihan situate at the western side of the house. Purshottam Rai also accompanied them and went there. By that time, it began day dawn. Thereafrter, Purshottam Rai, went towards his village, through the fields.
In the night of incident at 9-10 O' Clock sound of quarrel between the deceased Ramdeo Rai and Purshottam was being heard. Thereafter, we did not hear any sound of loot or any other sound." (English translation by Court).
34. The statement of P.W.5, Om Prakash Rai also corroborates the aforesaid acts which is as under:-
" 1@2 twu lu~ 1981 dh jkr esa eSa vius njokts ij lks;k Fkk cxy esa esjs pkpk lqjsUnz ukFk jk; dk njoktk gS lqjsUnz ukFk jk; us ml jkr yxHkx rhu lok rhu cts ds djhc eq>s txk;k vkSj crk;k fd jfoUnz jk; vk;s gSaa vkSj crk jgs gSa fd dqN cnek'kksa us esjk Msjk ywV fy;k vkSj cM+s firk th jkenso jk; dks ekj Hkh Mkys gS ,slk lqudj ge yksx rqjUr jfoUnz jk; ds lkFk gh muds njokts ij x;s ogkW ij ijegal jk; o iqj"kksRre jk; Fks ogkW ij iqj"kksRre us ge yksxksa dks crk;k fd dqN cnek'k esjs Msjs ij vk;s Fks vkSj esjk Msjk ywVdj firk th dks ekj Mkyk gS ge lHkh yksx ogkW ls Msjs ds fy, py fn, jkLrs esa rkjds'oj jk; dks muds njokts ls lkFk ys fy;k x;kA jkenso jk; ds Msjs ls if'pe 200 ykBs ij ujk;u igyoku dk Msjk gS ogkW ls mUgsa Hkh lkFk ys fy;k x;k ujk;u igyoku o jkenso ds Msjs ds chp cuokjh vghj dk Msjk gS ogkW ls fodzek] lfrjke o cuokjh dks lkFk fy;k x;k ge yksx jkenso ds Msjs ij igWqps rks ns[kk fd eM+bZ ds vUnj pkjikbZ ij jkenso ejs iM+s gS vkSj lc lkeku Msjs dk lgh gkyr esa Fkk ,slk izrhr gks jgk Fkk fd Msjs ij ywVikV dh ?kVuk dksbZ ugha gq;h gSA tc ge yksx ekSds ij lc phtsa ns[k gh jgs Fks rks jfoUnz o ijegal jksus yxs vkSj jksrs&jksrs Msjs ls fudy dj Msjs ds if'pe [kfygku dh vksj pys x;s iqj"kksRre Hkh mu yksxksa ds lkFk x;sA Msjs ls if'pe [kfygku lVk gqvk gh 2&3 ykBs ij FkkA fQj 8&10 feuV ckn ge yksxksa us ns[kk fd iqj"kksRre jk; eqyfte gkftj vnkyr [ksrksa ls gksrs gq;s lh/ks xkWo dh vks tk jgs gSA^*---------------^*yk'k dk xnZu dk fgLlk pkjikbZ ls yVdk Fkk vkSj iSj Hkh pkjikbZ ls yVd jgk Fkk iSj tehu Nw jgk Fkk ;k ugha ;g /;ku ugha fn;kA^* "I had slept at my door in the night intervening 1/2 June, 1981. Adjacent to my door is the door of my Uncle Surendra Nath. That night at about 3.15 O' Clock, Surendra Nath awakened me and told that Ravindra Rai had come and was saying that some anti-social elements had looted the Dera and also killed elder Uncle Ramdeo Rai. Hearing this, we all alongwith Ravindra Rai went to his door. Paramhans Rai and Pushottam Rai were already there and Purshottam told that some miscreants had come to dera (house) and killed his father after looting. Thereafter, we all proceeded for the dera and also took Tarkeshwar Rai from his door. Adjacent to the house of Ramdeo Rai at a distance of 200 latthas towards West, house of Narayan Pahalwan is situated and from there they took him too also. In between the house of Narayan Pahalwan and Ramdeo, house of Banwari Ahir is situated. Therefrom, Vikrama, Sita Ram and Banwari were also taken. We also reached Dera (house) of Ramdeo and saw that Ramdeo was lying dead on the cot inside madai (thatched house). All other things inside the dera were intact. It seemed that no incident of loot had taken place. While we were inspecting all the things at the spot, Ravindra Rai and Paamhans began to cry and while crying they went out of the dera and went towards khalihan situated towards west. Purshottam also accompanied them. Khalihan was situated adjacent to dera at a distance of 2-3 lattha. After 8-10 minutes, we saw that Purshottam Rai (present in the Court) was going towards village.......Neck part of the dead body was hanging out of the cot and feet were also hanging outside the cot. I did not notice whether the feet were touching the ground or not." (English translation by Court).
35. Thus, the statements of all the prosecution witnesses corroborate each other and there is no such material contradiction or discrepancy so as to make their statements unreliable. Some minor discrepancies are bound to occur in the statements of witnesses who cannot be expected to paint a picture perfect of the scene of crime. All the witnesses have been cross-examined at length by learned defence counsel, but nothing has been elicitated to cast a shadow of doubt on their statements and their statements, as a whole inspire confidence.
36. In so far as the legality and admissibility of discovery under Section 27 Evidence Act is concerned, the evidence on record clearly shows that the discovery of blood stained wet clothes and blood stained weapon of offence (Gandasi) has been made by the police at the instance of appellant from inside his room and from heap of chaff kept inside his 'dera' respectively. The 'gandasi' was kept by him hidden in the heap of Chaff inaccessible by anyone. The appellant after his arrest, has confessed his guilt. His confession made before a police officer and the public witesses, can be proved against him under Section 27 of Evidence Act which postulates that if something new is discovered or recovered from the accused, which was not in the knowledge of the police before disclosure statement of the accused is recorded, it is admissible in evidence.
37. In Madhu Vs. State of Kerala (2012) 2 SCC 399, the Hon'ble Apex Court has held as under :-
"As an exception, Section 27 of the Indian Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Indian Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "...as it relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Indian Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. Discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Indian Evidence Act."
38. From the above material, the circumstances of this case may be enumerated as follows:
1. The appellant was seen by the witnesses going to the place of incident while he was taking meals for his father in the night.
2. In the midnight, the appellant came to his house, awoke his cousin brothers and informed that some dacoits have killed his father and have looted the cattles and dera.
3. His cousin brothers, along with villagers, rushed to Dera where they found the dead body of deceased lying in a pool of blood but nothing was found looted and the cattles were found intact, tied with their pegs.
4. The appellant neither made any effort to lodge the F.I.R. about the dacoity nor about the ghastly incident of brutal murder of his father.
5. The appellant has made a futile attempt to cover up the incident of murder by painting a picture of dacoity having been committed at his Dera, but the statements of the witnesses as quoted above, show that no articles were found looted and everything including the water pump and cattles, was found intact by the eye witnesses.
6. A little before dawn, when the things started becoming visible, the witnesses noticed blood stain on the clothes of the appellant. The appellant immediately after that, left the spot and came back after sometime in changed clothes.
7. The appellant was found mysteriously missing from his home when the Investigating Officer felt the necessity of re-interrogating him and he was arrested from Sheikh Ka Taal. He also made futile attempts to run away after seeing the police, but was immediately overpowered.
8. After his arrest, the appellant confessed his guilt before the Investigating Officer and gave him the blood stained wet clothes from his house situated at Sherpur Kalan. He also gave the blood stained Gandasi to the Investigating Officer, taking it out from the heap of Chaff kept inside the Dera, with pieces of chaff stuck on the blood over it.
9. In the forensic science laboratory report, human blood has been found on the articles sent for the chemical examination.
10. The appellant has neither stated anything in his defence nor has adduced any defence witness, despite being afforded full opportunity during trial.
11. Though the appellant has taken the 'plea of Alibi' in his statement by stating that he was present at Village Laduar in the night of occurrence, but he has not adduced any evidence to substantiate his statement.
12. The appellant has given evasive or false replies to all the questions put to him by the Court during his statement under Section 313 Cr.P.C.
In the case of Munna Kumar Upadhyay Vs. State of Andhra Pradesh, (2012) 6 SCC, 174, it has been held by Supreme Court that:
"If the accused gives incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the Court can draw an adverse inference against him and the conduct of accused would tilt the case in favour of prosecution."
13. The appellant has been lastly seen going to the place of occurrence with the meal of his father hence the burden was on him to prove as to what happened thereafter but he failed to do so.
39. In State of Rajasthan Vs. Kashi Ram 5 (2006) 12 SCC 254 , Supreme Court held as under:
"If a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. ...........the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
40. In Harivadan Babubhai Patel Vs. State of Gujrat, (2013) 7 SCC 45, the Supreme Court held as under:
"Another facet is required to be addressed to. Though all the incriminating circumstances which point to the guilt of the accused had been put to him, yet he chose not to give any explanation under Section 313 CrPC except choosing the mode of denial. It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. (See State of Maharashtra V. Suresh [21]. In the case at hand, though number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him."
41. The appellant has made a futile attempt to show that he was not present in the village on the fateful night. But he has not produced any evidence in support of his plea.
42. In Mukesh Vs. State of NCT of Delhi 2017 (3) Supreme 385, the Supreme Court has held as under:
"Onus of presence of accused on the spot having been discharged by prosecution, the burden to establish plea of alibi lies on accued-Plea of 'alibi' has to be weighed against positive evidence led by the prosecution.-Instantly accused persons miserably failing to discharge their burden of absolute certainty qua their appeal of 'alibi', the plea appearing to be an afterthought and may be read as an additional circumstance against them- Plea rightly rejected by courts below........It is settled in law that while raising a plea of 'alibi', the burden suqarely lies upon the accused person to establish the plea convicingly by adducing cogent evidence."
43. Testing the facts and circumstances of the case on the anvil of law as cited above, we are of the firm view that the learned trial court has rightly convicted the appellant.
44. We find no reason to interfere with the judgment impugned which deserves to be confirmed by us.
45. Both the appeals being devoid of merits are likely to be dismissed and are accordingly dismissed.
46. The ordersheet shows that the whereabouts of appeallant are untraceable.
47. The Chief Judicial Magistrate, Ghazipur, is directed to make all possible efforts to arrest the appellant and to lodge him in jail to serve out the sentence of life imprisonment.
48. A copy of this judgment be sent to the C.J.M., Ghazipur, by FAX for immediate compliance.
49. The lower court's record along with a copy of the judgment be sent back to the court concerned.
50. Shri Prashant Singh, learned Amicus Curiae, appearing for the appellant, who has assisted this Court very efficiently, be paid Rs. Eleven thousand as fee.
Order Date:-07.9.2018 SB