Allahabad High Court
Boby @ Sushil vs State Of U.P. on 29 September, 2020
Equivalent citations: AIRONLINE 2020 ALL 2501
Author: Ramesh Sinha
Bench: Ramesh Sinha, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.87
A.F.R.
Reserved on : 30.07.2020
Delivered on : 29.09.2020
CRIMINAL APPEAL No. 2756 of 2011
Boby @ Sushil --------Appellant
Vs
State of Uttar Pradesh -------Respondent
_______________________________________________________
For Appellant : Sri Noor Mohammad
For Respondent/State : Ms. Kumari Meena, AGA _______________________________________________________
Hon'ble Ramesh Sinha, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J. for the Bench
1. This criminal appeal has been preferred against judgment and order dated 08.04.2011/11.04.2011 passed by Additional Sessions Judge, Court No. 13, Saharanpur in S.T. No. 705 of 2005 (State vs. Boby @ Sushil), Crime No. 85/435/2005, under Section 302 IPC, P.S. Kotwali Dehat, District Saharanpur and S.T. No. 706 of 2005 (State vs. Boby @ Sushil), Case Crime No. 86/436/2005, under Section 25/4 Arms Act, P.S. Kotwali Dehat, District Saharanpur, whereby the accused-appellant Boby @ Sushil has been convicted under Section 302 Indian Penal Code (hereinafter referred to as IPC) and under Section 25/4 Arms Act. He was sentenced to imprisonment for life along with fine of Rs. 20,000/- under section 302 IPC and rigorous imprisonment of one year along with fine of Rs. 5000/- under Section 25/4 Arms Act. In default of payment of said fine of Rs. 20,000, he has to undergo one year additional imprisonment and in default of payment of said fine of Rs. 5000/- he has to undergo three months additional imprisonment. Both the substantial sentences were to run concurrently.
2. Accused-appellant Boby @ Sushil is brother of deceased Luxman Singh. Prosecution version is that on 04.09.2015 at around 11:50 PM, accused-appellant Boby @ Sushil committed murder of his brother Luxman Singh by inflicting knife blows at his neck. Soon after the incident, he was apprehended by PW-1 constable Naresh Kumar and PW-4 constable Naveen Kumar at a distance of about 30-35 steps from the spot. According to PW-1 constable Naresh Kumar and PW-4 Naveen Kumar, on 04.09.2005 at around 11:20 PM while they were present on picket duty at Rakhha colony culvert, they heard some noise from other side of 'rajwaha' (sub canal) and when they went there, they saw that accused-appellant Boby @ Shushil was coming there and he was having a knife. These police officials stopped him and meanwhile two persons, namely, Subhash and Ramesh of same locality also came there. Accused Boby @ Sushil told that his brother Luxman was fighting with him since evening and due to this reason he has committed his murder by cutting his neck and that his dead body is lying in courtyard of his house. Thus, the said police officials took him to his house where dead body of deceased was lying in courtyard of house. Accused-appellant along with knife was taken to police station by PW-1 constable Naresh Kumar. The said knife was taken into possession vide recovery memo Exhibit Ka-2/3/5.
3. On oral statement of PW-1 constable Naresh Kumar, case was registered against accused-appellant Boby @ Sushil under Section 302 IPC and Section 25/4 Arms Act on 05.09.2005 at 2:00 AM vide FIR Exhibit Ka-1.
4. Inquest Proceedings were conducted by S.I. Prem Shanker Dwivedi vide inquest report Exhibit Ka-12. The dead body of deceased was sealed and sent for postmortem.
5. Postmortem on the dead body of deceased was conducted on 05.09.2005 by PW-6 Dr. Ved Prakash vide postmortem report Exhibit Ka-7. Deceased Luxman Singh has sustained following injuries on his person:
(i) Incised wound 14 cm x 2.5 cm x cervical spine deep on the front, neck front aspect and lateral aspects trachea and oesophagus found cut both side of neck vessels are cut along with muscles and nerves and other tissues wound. Extend deep from 3 cm below the right angle of jaw to 3 cm below the left angle of jaw under the upper part of neck below the base of chin. Abrasion 2 cm x 2 cm distance upper part of nose underlying nosal bone fractured.
As per Autopsy Surgeon, cause of death of the deceased was shock and hemorrhage as a result of injury over neck.
6. Investigation of the case was conducted by PW-8 Inspector Vijay Kumar Yadav. He inspected the spot and prepared site plan Exhibit Ka-8. During course of investigation, blood stained knife recovered from appellant, was sent to FSL and after its examination, FSL report Exhibit Ka-11 was collected. One pair of slipper of deceased, found at the spot, and two drawing string (nada) were taken into possession vide seizure memo Exhibit Ka-3 and Ka-4. After completion of investigation accused-appellant Bobby @ Sushil was charge-sheeted for the offence under Section 302 IPC vide charge-sheet Exhibit Ka-9. A separate charge-sheet Exhibit Ka-10 was filed for offence under Section 25/4 Arms Act. As both the cases were connected with same incident thus, S.T. No. 706 of 2005, under Section 25/4 Arms Act was consolidated with S.T. No. 705 of 2005 (State vs. Boby @ Sushil) under Section 302 IPC.
7. Accused-appellant was charged for offence under section 302 IPC and section 25 Arms Act.
8. In order to bring home the guilt of accused-appellant Bobby @ Sushil, prosecution has examined eight witnesses.
9. After prosecution evidence, accused-appellant was examined under Section 313 of Cr.P.C., wherein, he has denied the prosecution case and by filing a written statement, he has alleged that there was no motive on his part to commit such incident. On the night of incident he has reached at his house by rickshaw at 1:00 AM after seeing a movie and he saw that door of his house was lying opened and his brother was lying murdered. Theft was also committed in the house and household articles were lying scattered. One knife was also lying near the dead body of deceased. Hearing his cries, his neighbour Subhash and some other persons reached there and they called the police by making a telephonic call. Police came at spot and thereafter he (accused-appellant) and some other persons went to police post for lodging a report and that police took his tahrir and thereafter he was falsely implicated in this case.
However, no evidence was led in defence.
10. After hearing and analyzing the evidence on record, trial Court has convicted the accused-appellant Boby @ Sushil under Section 302 IPC and Section 25/4 Arms Act and sentenced him as stated in opening paragraph of this order.
11. Being aggrieved by the impugned judgment, accused-appellant has preferred the present appeal.
12. Heard Sri Noor Mohammad, learned counsel for the appellant and Ms. Kumari Meena, learned A.G.A for the State and perused the record.
13. In evidence, PW-1 constable Naresh Kumar has stated that on 04.09.2005 he along with constable Naveen Kumar was on picket duty at Rakhha colony culvert vide G.D. No. 19. At around 11:50 PM he heard some noise from other side of 'rajwaha', (sub canal) and when they went there, one person having a knife was seen coming there. He was stopped and he disclosed his name as Boby @ Sushil. Meanwhile two persons, namely, Subhash and Ramesh of locality also came there. Accused-appellant Boby @ Sushil has disclosed that his brother Luxman was fighting with him since evening and due to that reason he has committed his murder by chopping off his neck with knife and that his dead body is lying in courtyard of his house. The accused-appellant was taken to spot and PW 1 Naresh Kumar and PW 4 Naveen Kumar saw that dead body of Luxman was lying in pool of blood. PW-1 constable Naresh Kumar along with witnesses took the accused-appellant along with knife to police post Hasanpur while PW-4 constable Naveen Kumar was left at the spot. During his statement in Court, PW-1 constable Naresh Kumar has identified accused-appellant Boby @ Sushil as well as the said recovered knife vide material Ex. 1. PW-1 has also stated that he has got lodged the FIR by making an oral statement.
14. PW-2 Subhash was eye-witness of incident but he did not support the prosecution version and turned hostile. He has stated that accused-appellant Bobby @ Sushil Kumar was his neighbour and on day of incident he has come in night by rickshaw after seeing a movie. He (PW-2 Subhash) was also awaken at that time and as accused-appellant went inside his house, he started crying. PW-2 Subhash went there and saw that his household articles were lying scattered and dead body of deceased was lying there and that one knife was also lying near dead body. PW-2 has identified his signature on recovery memo of knife but stated that it was not seized in his presence. He has also stated that he cannot say that who committed murder of deceased. PW-2 Subhash was declared hostile and was cross-examined from the side of prosecution.
15. PW-3 Ramesh was also an eye-witness but he too did not support the prosecution case. PW-3 Ramesh has stated that incident has taken place about two years back but he cannot tell the time of incident. The deceased was not murdered by accused-appellant and neither the accused-appellant was apprehended in his presence nor any knife was recovered from him. He has admitted his signature on recovery memo Exhibit Ka-3 but stated that his signatures were obtained on a paper. PW-3 Ramesh was also declared hostile and he was cross-examined from the side of prosecution.
16. PW-4 constable Naveen Kumar has stated that on 04.05.2005, while he was posted at police post Hsanpur, he along with constable Naresh Kumar was on picket duty at Rakhha colony culvert. At 11:50 PM they heard some noise from other side of 'rajwaha' (sub canal) and when they went there, they saw that accused-appellant Boby @ Sushil, having a knife in his hand, was coming there. He was stopped and he has told that he has committed murder of his brother Luxman Singh. PW-4 constable Naveen Kumar further stated that accused-appellant Boby @ Sushil was taken to his house and dead body of his brother was lying there. Witnesses Ramesh, Subhash, Kallu and Salim have also gone to the spot and blood was lying near dead body. PW-4 Naveen Kumar remained at spot whereas constable Naresh Kumar and witness Ramesh and Subhash took the accused-appellant Boby @ Sushil along with knife to the police post.
17. PW-5 Nagendra Singh has recorded first information report and he has proved the FIR as Exhibit Ka-1 and G.D. Entry Exhibit Ka-4. He has also stated that accused-appellant Boby @ Sushil along with blood stained knife was brought at the police station and the knife was taken into possession vide recovery memo Exhibit Ka-5 and before that it was duly sealed. PW-5 constable Nagendra Singh has identified the said knife as Exhibit 1. PW-5 has also proved G.D. Entry no.17 regarding departure of constable Naresh as Exhibit Ka-6.
18. PW-6 Dr. Ved Praksh has conducted postmortem on the dead body of deceased.
19. PW-7 constable Harendra Malik has taken dead body of deceased to mortuary for postmortem. PW-7 has also proved inquest report Exhibit Ka-12 and other inquest papers Exhibit Ka-13 to Ka-16, prepared by S.I. Prem Shankar Dwivedi.
20. PW-8 Inspector Vijay Kumar Yadav has conducted investigation.
21. It has been submitted by the learned counsel for the accused-appellant that both the alleged eye-witnesses, namely, PW-2 Subhash and PW-3 Ramesh have not supported the prosecution version and they have clearly stated that deceased Luxman was not murdered by accused-appellant Boby @ Sushil. They have also stated that when accused-appellant had reached at spot deceased was already lying murdered. In his statement under Section 313 Cr.P.C. accused-appellant has also stated that on the night of incident he has reached at his house at around 1:00 PM after seeing a movie and his brother was found lying murdered and theft was committed in his house. There is no other eye-witness of alleged incident. Learned counsel argued that in view of these facts conviction of accused-appellant is against the evidence on record. Learned counsel further submitted that the chain of circumstances is not complete and that nothing has been recovered at the instance of accused-appellant nor there is evidence of "last seen" against the accused-appellant. The alleged recovery of knife from appellant is thoroughly doubtful as both the public witnesses of alleged recovery did not support the prosecution version and they have stated that knife was not recovered from accused-appellant. The circumstances, relied by trial Court, are neither established nor they make any chain. The evidence on record is consistent with innocence of accused-appellant. It was further submitted that there was no motive on the part of the accused-appellant to commit murder of deceased. It was argued that there is no reliable and satisfactory evidence to base conviction of accused-appellant and thus, the trial Court committed error by convicting the accused-appellant Boby @ Sushil.
22. Per contra, it has been submitted by the learned State counsel that though both the eye-witnesses, namely, PW-2 Subhash and PW-3 Ramesh turned hostile but there are strong circumstances against accused-appellant. He was apprehended with blood stained knife soon after the incident at a distance of merely 30-35 feet from spot. The explanation offered by accused-appellant under Section 313 Cr.P.C. is thoroughly false and baseless and it has been concocted with intention to shield himself. Learned counsel submitted that there is absolutely no evidence that any theft was committed in house of accused-appellant or that his household articles were found scattered. It was stated that evidence of PW-1 Naresh Kumar and PW-4 Naveen Kumar is quite clear, consistent and reliable. No such fact could be shown in their cross-examination so as to create any doubt regarding credibility of these witnesses. On the basis of evidence PW-1 constable Naresh Kumar and PW-4 Naveen Kumar, it is established that soon after the incident accused-appellant was apprehended with blood stained knife near his house and it is apparent that after incident he was trying to flee away from spot. It was further submitted that as per FSL report, it has been found that knife recovered from accused-appellant was stained with human blood. Learned State counsel further submitted that despite hostility of eye-witnesses, there is strong circumstantial evidence, which makes a complete chain and the evidence is of such nature that it clearly indicate that murder of deceased was committed by accused-appellant. Learned A.G.A. submitted that conviction of accused-appellant Boby @ Sushil is based on evidence and thus, it calls for no interference.
23. We have considered rival submissions and perused record.
24. Perusal of record shows that as per prosecution, PW 2 Subhash and PW 3 Ramesh were eye witness of the incident in question but they did not support prosecution version and turned hostile. The trial court has based conviction of accused-appellant Boby @ Sushil on circumstantial evidence. No doubt the conviction can be based on circumstantial evidence inspite of hostility of eye-witnesses, provided such circumstantial evidence stood the well settled test reiterated by the Hon'ble Apex court through various pronouncements time and again for sustaining conviction of accused. In this connection we may refer the case of Paramjeet Singh @ Pamma Vs State of Uttrakhand (2010) SCC 439, wherein all the seven eye witnesses have turned hostile, it was observed by the Hon'ble Apex Court that case is to be decided keeping in mind that as all the eye-witnesses turned hostile, it remained a case of circumstantial evidence.
25. It would be pertinent to mention that the even the evidence of a hostile witness is not washed off from consideration and by now it is settled principle of law, that such part of the evidence of a hostile witness, which is found to be credible, could be taken into consideration and it is not necessary to discard the entire evidence. Reference in this respect could be made to the judgment of the Apex Court in the case of Bhajju v. State of M.P., (2012) 4 SCC 327, which reads thus:
"36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party."
26. Similarly in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506, Hon'ble Apex Court has held that the evidence of a hostile witness in all eventualities ought not stand effaced altogether. It was held that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record. In this connection reference may be made to case of State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291), Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., (2006) 2 SCC 450, Mahesh v. State of Maharashtra, (2008) 13 SCC 271, Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480, Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624 and a recent case titled as Sudru Vs. State of Chattisgarh [Criminal Appeal No. 751 of 2010], decided on 22.08.2019 .
27. Before proceeding further we may gainfully refer the case State of Gujarat v. Anirudh Singh, (1997) 6 SCC 514, wherein the Hon'ble Apex Court observed as under :
"Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the charge-sheet before the court competent to take cognizance of the offence. The charge-sheet needs to contain the facts constituting the offence/s charged. The accused is entitled to a fair trial. Every citizen who assists the investigation is further duty-bound to appear before the Court of Session or competent criminal court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to destabilise social peace, order and progress."
28. Keeping the above stated settled position in view, in the instant case as the eye-witnesses have turned hostile thus, it is to be considered whether evidence on record establishes the involvement of accused-appellant Boby @ Sushil in the incident at the touch stone of circumstantial evidence. It is well settled that conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence.
29. In case of Hanurnant v. The State of Madhya Pradesh, [1952] 3 SCR 1091 the Hon'ble Apex Court laid down fundamental and basic principles for appreciating the circumstantial evidence. The Hon'ble Court observed:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
30. In a landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accuses, 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
31. In Joseph vs. State of Kerala, [(2000) 5 SCC 197], the court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
32. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
33. The similar principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679, Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79), Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, Raja @ Rajinder Vs. State of Haryana, (2015) 11 SCC 43 and State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69.
34. In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
35. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, the Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
36. The principle that emerges from the above discussed decisions is that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Hon'ble Apex Court. It is trite that the conviction can be based on circumstantial evidence alone, but for that the prosecution must establish the chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with his/their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence.
37. In the instant case, the version of PW-1 constable Naresh Kumar is that on 04.09.2015 at about 11.50 PM while he along with constable Naveen Kumar (PW 4 ) was present at culvert of Rakhha colony, they heard some noise from other side of ''rajwaha'' (sub canal) and when they went there, they saw that accused-appellant was coming with a knife. They stopped and confronted him. Meanwhile two persons namely Subhash (PW 2) and Naresh (PW 3) also reached there. Accused-appellant told that his brother Luxman was fighting with him since evening and due to this reason he has murdered him by cutting his neck with the knife and that his dead body was lying in courtyard of his house. Accused-appellant led them (PW 1 Naresh Kumar and PW 4 constable Navin Kumar) to the spot at his house and they found that dead body of Luxman was lying in pool of blood. Accused-appellant along with said knife was brought to police station and case was lodged on the statement of PW-1 constable Naresh Kumar. This version of PW 1 constable Naresh Kumar is quite consistent and categorical. His version has been amply corroborated by PW-4 constable Navin Kumar. No doubt their version is not supported by PW 2 Subhash and PW-3 Ramesh as they turned hostile but in the peculiar facts and circumstances of the case it can not be a ground to doubt testimony of PW-1 constable Naresh Kumar and PW-4 constable Navin Kumar. The statements of both said constables are quite consistent and cogent. They have been subjected to cross-examination, but nothing adverse could emerge. One of the important factor is that there are absolutely no reasons as to why these witnesses would depose falsely against the accused-appellant. There is absolutely nothing even to remotely indicate that these witnesses have any any enmity or grudge against the accused-appellant. Even there is nothing to show that they knew the accused-appellant since before the incident. Said witness PW-2 Subhash and PW-3 Ramesh are neighbours of accused-appellant and thus, their hostility can be understood, however in these facts and circumstances the deposition of PW-1 constable Naresh Kumar and PW-4 constable Naveen Kumar can not be doubted on the ground of hostility of said public witnesses. Here it may be stated that PW-2 Subhash and PW-3 Ramesh have also stated that on the night of incident, murder of deceased was committed. It is altogether another thing that during their evidence in court these witnesses backtracked from their statements recorded during investigation and denied involvement of accused-appellant in the incident.
38. As observed earlier, the deposition of PW-1 constable Naresh Kumar and PW-4 constable Naveen Kumar is found cogent and credible. It is correct that both the witness PW-1 constable Naresh Kumar and PW-4 constable Naveen Kumar are police officials but there is no such law that testimony of such a witness has to be doubted on the ground that he is a police official. A police official is an competent witness and if testimony of such witness is found credible and without any embellishment, it can certainly be acted upon. In Yakub Abdul Razak Memon Vs. State of Maharashtra 2013 (13) SCC 1, reiterating the principle laid down in judgment reported in (1995) 4 SCC 255, the Apex Court has held as under:-
"360. In Pradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra this court upheld that:-
"11...........the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony".
Similarly, Hon'ble Supreme Court, in Kulwinder Singh and another Vs. State of Punjab, (2015) 6 SCC 674 has held that when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. In the instant case, as stated earlier, both these witnesses have stood the test of cross-examination but nothing adverse could emerge. Their presence at spot is established as both the witnesses have stated that they have left the police post Hasanpur for patrolling at about 18.45 hours vide General Diary entry No. 19. This fact has also been corroborated by PW 5 Constable Nagender, who has proved this GD entry as exhibit ka-6. There are absolutely no reasons for deposing falsely against the accused-appellant.
39. Thus, the testimony of PW-1 constable Naresh Kumar and PW 4 constable Navin Kumar, which is found cogent and credible, can not be doubted on the ground that they are police officials, particularly when there are absolutely no reasons to indicate that why they would depose falsely against the accused-appellant. In view of aforesaid facts it is clear that testimony of these witness is credible and inspires confidence and it can safely be acted upon.
40. Here we may consider the case put by accused-appellant. In his statement under section 313 CrPC, the accused-appellant Boby @ Sushil has alleged that no such incident has taken place. On the night of incident, when he returned at his home by a rickshaw after seeing a movie, he saw that door of his house was lying opened and his brother was lying murdered and one knife was lying near the dead body. Accused-appellant has further alleged that he started crying and his neighbour namely Subhash and some other persons also reached there. Police was called at spot by making a telephonic call. He and other persons went at police post to lodge a report but the tahrir was kept by police and he was falsely implicated.
41. Regarding said defence of accused-appellant Bobby @ Sushil, it may be stated that PW-8 Inspector Vijai Kumar Yadav (I.O.), who has reached at spot on the same night, after inspecting the spot he prepared site plan (exhibit ka-8) of spot but no such description like scattering of articles was noticed. He has not stated any such statement that any theft was committed in house of accused-appellant or that house hold articles were lying scattering. No such specific suggestion was made to PW-8 Inspector Vijai Kumar Yadav that he did not depict the position of spot correctly. Similarly there is nothing to support the claim of accused-appellant that knife was recovered from spot. After examining statement of PW-8 Vijai Kumar Yadav, there are no reasons to disbelieve the same. It was alleged by accused-appellant that police was informed by his neighbours by telephone but he failed the explain that who has made the telephonic call to police. Further, accused-appellant has also failed explain that what articles were stolen. In fact the said defence version stands completely demolished by evidence of PW-1 and PW-4. As stated earlier, their deposition has been found credible and reliable. As per their evidence the accused-appellant was apprehended by near culvert and that he was having a blood stained knife. The recovery of blood stained knife from accused-appellant has been established. Considering entire evidence, the version of accused-appellant appears an afterthought and concocted, accordingly said defence version is discarded.
42. As stated earlier, the evidence of PW 1 and PW 4 has been found fully reliable. Coming to the confession of accused-appellant, it may be observed that both these witness PW-1 constable Naresh Kumar and PW-4 constable Naveen Kumar are police officials and thus, the alleged confession made by accused-appellant admitting his involvement in murder of deceased can not be proved against accused-appellant as the same is hit by provisions of section 27 of Evidence Act, however the other facts like that accused-appellant has disclosed that his brother has been murdered and his dead body is lying in courtyard of his house can certainly be taken in to consideration as one of the circumstance. It is also established from evidence of PW 1 constable Naresh Kumar and PW 4 constable Navin Kumar that in pursuance of said disclosure, accused-appellant has led them to his house, where dead body of deceased was found lying in pool of blood.
43. At this stage we may refer case of Mohmed Inayatullah v. The State of Maharashtra, (1976) 1 SCC 828, wherein while dealing with the ambit and scope of section 27 of the Evidence Act, the Court held that:
''11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the Section and be reminded of its requirements. The Section says:
27. How much of information received from Accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
12. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the Section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person Accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the Accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the Accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which' may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression "fact discovered" in the Section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, Ganu Chandra Kashid v. Emperor). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the Accused as to this (see Palukuri Kotayya v. Emperor, Udai Bhan v. State of U P)''.
44. In this connection we may gainfully refer that the Hon'ble Privy Council in Pulukuri Kotayya v. King Emperor AIR 1947 PC 74 IA 65, has held: (IA p.77) ''..it is fallacious to treat the 'fact discovered' within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the Accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant''.
45. In Aftab Ahmad Anasari v. State of Uttaranchal 2010 2 SCC 583 after referring to the decision of Palukuri Kotayya (supra), the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that:
''40. ...the part of the disclosure statement, namely, that the Appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible Under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the Appellant pursuant to the voluntary disclosure statement made by the Appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits."
46. In State of Maharashtra v. Damu AIR 2000 SC 1691, Hon'ble Apex Court held:
''35. ...It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the Section embraces the place from which the object was produced, the knowledge of the Accused as to it, but the information given must relate distinctly to that effect''.
47. In case of State of Punjab v. Gurnam Kaur (2009) 11 SCC 225, it has been held laid down that if that if by reason of statements made by an accused some facts have been discovered, the same would be admissible against the person who has made the statement in terms of section 27 of the Evidence Act. The similar principle has been laid down in Charandas Swami V State of Gujarat (2017) 7 SCC 177, Udaibhan Rai V State of UP AIR 1994 SC 1603. State of Maharashtra v. Suresh (2000) 1 SCC 471. Bhagwan Dass v. State (NCT of Delhi) AIR 2011 SC 2352, and Rumi Bora Dutta v. State of Assam (2013) 7 SCC 417.
48. Keeping the aforesaid position of law in mind, in the instant case it may be observed that statements of PW-1 and PW-4 to the extent that accused-appellant has disclosed that his brother Luxman was fighting with him since evening and that he has been murdered and that his dead body is lying in courtyard of his house and that he led the PW-1 constable Naresh Kumar and PW-4 constable Navin Kumar to said spot, where dead body of deceased Luxman was found lying in pool of blood, can be proved against the accused-appellant. These facts are distinct from the alleged confession made by accused-appellant before these witnesses that he has committed murder of deceased. As stated earlier, in this regard statements of both the witness PW-1 and PW-4 are credible and inspire confidence. These witness have no knowledge or information that there was any fighting between the accused-appellant and the deceased or that deceased has been murdered or that his dead body is lying in house of accused-appellant. These facts were discovered from statement of accused-appellant and thus, the same would be admissible against him in terms of section 27 of the Evidence Act. Thus, it stand proved against the accused-appellant that soon after the incident he was apprehended by PW-1 and PW-4 only at a distance of about 30-35 feet from his house while he was coming with a blood stained knife and that it was disclosed by him that his brother Luxman was fighting with him since evening and that deceased Luxman has been murdered and that his dead body is lying in courtyard of his house and that he led the police party to said spot, where dead body of deceased Luxman was lying in pool of blood. This discovery of fact is one of the important circumstance against the accused-appellant.
49. The most clinching evidence against the accused-appellant is recovery of blood stained knife from his possession. From the evidence of PW-1 and PW-4 it is clear when they stopped the accused-appellant Bobby @ Sushil, he was having a blood stained knife in his hand. This knife was taken in to possession vide recovery memo exhibit ka-3. Though the recovery of knife from accused-appellant was denied by PW-2 and PW-3, obviously due to the reason that they turned hostile to prosecution version but in this regard the evidence of PW-1 and PW-4 has been found credible. The knife has been identified by them as material exhibit 1 during their evidence and recovery of blood stained knife from accused-appellant, as stated by PW 1 and PW 4, has been proved beyond doubt. From FSL report exhibit ka-11, which is admissible in evidence under section 293 CrPC, it is clear that this knife was stained with human blood. Here it would be pertinent to mention that accused-appellant has failed to offer any satisfactory explanation that soon after the incident what he was doing with human blood stained knife. As stated earlier his explanation that knife was not recovered from him or that it was lying near dead body of deceased is found false and concocted. Thus, recovery of knife stained with human blood, soon after the incident, and merely at a distance of 30-35 steps from spot, is a highly incriminating circumstance against him.
50. Further, the conduct of accused-appellant is quite inculpatory. As per accused-appellant, his brother was murdered by some unknown miscreants, but if it was so, he has offered no satisfactory explanation that why he was trying to fled away with a blood stained knife instead of reporting the matter to police. Similarly there is no explanation that how this knife recovered from him was stained with human blood. As stated earlier the story made up by appellant that theft was committed in house and his house hold articles were lying scattered is also found false and concocted. Thus, it is clear that conduct of accused-appellant is highly incriminating. The recovery of blood stained knife, soon after the incident, from accused-appellant and unnatural conduct of accused-appellant are highly incriminating circumstances against the accused.
51. So far as question of motive is concerned, it is well settled that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused. While dealing with a similar issue, the Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:
"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
In Surinder Pal Jain v. Delhi Admisnitration JT 1993 (2) SCC 206 Hon'ble Supreme Court has held that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is a an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. Similar view has been expressed by Hon'ble Supreme Court in Tanviben Pankaj Kumar Divetia AIR 1997 SC 2193, wherein it has been held that motive for murder may not be revealed in many cases but if evidences of murder are very clinching and reliable, conviction can be based even if the motive is not established. In a case of circumstantial evidence, motive assumes greater importance than in the case where direct evidences for murder are available. In Nathuni Yadav and Others V State of Bihar 1998 (9) SCC 238, Hon'ble Supreme Court has held that motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive.
Thus, it is evident from the above stated judgments of Hon'ble Supreme Court that it is not necessary to prove motive for each and every case but when the prosecution cases rests entirety upon circumstantial evidence, motive assumes significance.
52. Keeping in view the settled legal principle, in this case, as observed earlier, PW 1 and PW 4 have consistently stated that after the accused-appellant was apprehended with blood stained knife, he has stated that his brother Luxman was fighting him since evening. Though as per PW-1 and PW-4, the accused-appellant has also stated that due to that reason he has murdered him but this fact can not be proved against accused-appellant. However, the fact that soon after the incident when accused-appellant was apprehended with blood stained knife, his statement to the effect that his brother Luxman (deceased) was fighting with him since evening is not hit by provisions of section 27 of Evidence Act. Considering this fact in view of attending fact and circumstances, it is established that as there was some fight between the accused-appellant and the deceased and thus, the accused-appellant has motive to commit murder of deceased.
53. At this stage it may be stated that evidence shows that both accused-appellant Boby @ Sushil and deceased Luxman were living in a common house. Evidence on record does not indicate that any other family member was also residing with them. Section 106 of Evidence Act provides, inter alia, that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. Though 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 and 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. (Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 [2). In case of Jagdish v. State of Madhya Pradesh {(2009) 9 SCC 495} [6] the Hon'ble Apex Court observed as follows:
"It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
54. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In this regard reference may be made to the case State of Rajasthan Vs. Thakur Singh, 2014 CriLJ 4047. Thus, applying this principle to the facts of the case, it may be stated that as the explanation offered by accused-appellant Boby @ Sushil is found false and concocted, therefore, in such matters the false explanation can always be taken into consideration to fortify the finding of guilt already recorded on the basis of other circumstances.
55. In the instant case, considering entire evidence it has been established that soon after the incident the accused-appellant was apprehended with human blood stained knife and that there was some fight between his brother Luxman and him since evening. It is further established that accused-appellant has disclosed that his brother Luxman has been murdered and his dead body is lying in courtyard of his house and that he led PW 1 and PW 4 to spot, where dead body of deceased was found lying in pool of blood. The knife recovered from accused-appellant was found stained with human blood. The accused-appellant has offered false explanation that when he reached at his house, his brother was found murdered and a knife was lying there. Similarly he concocted false story regarding theft in house. Thus, he could not offer any satisfactory explanation that how his brother suffered homicidal death. Similarly there is no explanation that why, soon after incident, he was having a blood stained knife, how it got to be stained with human blood, why he did not report the matter to police and that why he was trying to fled away from spot leaving the dead of his brother at his house. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an homicidal death inside the house. His failure to offer any satisfactory explanation therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
56. It may be stated here that on material aspects the facts of this case find quite resemblance with the case of Paramjeet Singh alias Pamma vs. State of Uttarakhand (2010) 10 SCC 439, wherein the appellant was charged for killing his real brother and his two nephews and injuring his father and nephews Ajit Singh (PW.1) and Baljit Singh (PW.2) in broad day light but during trial eye witnesses have turned hostile. While appreciating the evidence, Hon'ble Apex Court held as under:
''41. The witnesses i.e. Ajit Singh (PW.1) and Baljit Singh (PW.2) in their respective depositions have admitted their presence at the place of incident and admitted to suffering those injuries. In their statements under Section 161 Cr.P.C. they have also admitted that they suffered the aforesaid injuries at the hands of the appellant. It was at a later stage that they have denied any role of the appellant. Their statements to that effect are not trustworthy for the simple reason that they failed to offer any explanation for why they assigned the said role to the appellant in their statements under Section 161 Cr.P.C. and why the appellant had been named by Ajit Singh (PW.1) while lodging the FIR. It is relevant to note that the witnesses, namely, Ajit Singh (PW.1) and Baljit Singh (PW.2) have also deposed that after the incident, a Panchayat was convened and it pardoned the appellant. The version of convening the Panchayat and grant of pardon to the appellant has duly been supported by Gurmit Singh (PW.3) and Satwant Singh (PW.4).
Gurmit Singh (PW.3) deposed:
".....it is correct that accused is my cousin. The matter had been compromised in the Panchayat". Satwant Singh (PW.4) deposed:
"....matter had been compromised in the Panchayat. Panchayat had pardoned Pamma accused".
It is pertinent to mention here that injured Hardayal Singh could not be examined as he died of cancer during the trial.
42. It is evident from the above that the view taken by the courts below, that the eye-witnesses turned hostile because of the decision taken in the Panchayat, pardoning the appellant, does not require any interference. It is also evident from the above that the said eye-witnesses have no regard for the truth and concealed the material facts from the court only in order to protect the appellant, for the reasons best known to them. Such an unwarranted attitude on the part of the witnesses disentitles any benefit to the appellant, who has committed a heinous crime. The crime had been committed against the society/State and not only against the family and therefore, the pardon accorded by the family and Panchayat has no significance in such a heinous crime.
43. It has been canvassed on behalf of the appellant that the trial Court committed an error relying upon various factors/incriminating materials which were not pointed out to the appellant while recording his statement under Section 313 Cr.P.C. Such material had been in respect of (i) recovery of gun from arms dealer at Rampur; (ii) motive;
(iii) abscondance of the appellant; and (iv) compromise in Panchayat which pardoned the appellant.
44. So far as the circumstance of recovery of gun from the arms dealer at Rampur is concerned, the trial court had put a question to the appellant and he has answered the same. The question and answer read as under:
"Q. It has come in evidence that the Investigating Officer prepared a site plan of the place of occurrence which is Exh.K-26. Your licenced gun 17466/96 was recovered at your instance from Rampur and the Recovery Memo was prepared which is K-39, the site plan of the place of recovery is Exh.K-45. The forensic science laboratory report in respect of the case property is Exh. K-44, what have you to say?
Ans. The gun was not recovered at my instance. This number 17466/96 is the number of my licenced gun. I had deposited this gun with a dealer at Rampur. The police has concocted the story of recovery."
It appears that the number of one of the exhibits had wrongly been pointed out as K-44, though it was Exh. K-46. But it is not a case where no question was put to the accused on the said circumstance.
So far as the issue of motive is concerned, the case is squarely covered by the judgment of this court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing [supra]) The third circumstance i.e. the abscondance of the appellant has also been taken into consideration by the courts below. We have clarified that it cannot be a circumstance against the appellant. Thus, not putting a question on this particular circumstance to the appellant remained inconsequential. The courts below had considered that the appellant could not furnish any explanation for his absence for about six days. Appellant failed to raise any positive defence and answered all the questions put to him in an evasive manner. Such a view is permissible being in consonance with the law laid down by this Court in Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC 433; and Amarsingh Munnasingh Suryawanshi v. State of Maharashtra, (2007) 15 SCC 455.
47. So far as the fourth circumstance i.e. the compromise in Panchayat and the pardoning of the appellant is concerned, it cannot be labelled as a circumstance charging the appellant with a crime. By no stretch of the imagination can it be held that the said circumstance involved any accusation towards the appellant. In fact, in cannot be termed as incriminating material, proving the offence against the appellant, rather it had been a circumstance due to which all the seven eye-witnesses turned hostile.
Be that as it may, we are of the considered opinion that not putting questions regarding anyone of the aforesaid circumstances can not be held to be a serious irregularity inasmuch as the same may vitiate the conviction. More so, in the present case, it has not materially prejudiced the appellant nor has it resulted in a miscarriage of justice.
48. If the case is considered in the totality of the circumstances, also taking into consideration the gravity of the charges, the appellant had killed his real brother, Inderjit Singh and his nephews, Surender Singh and Saranjit Singh and injured his father Hardayal Singh and nephews Ajit Singh (PW.1) and Baljit Singh (PW.2) in broad day light. The FIR had been lodged promptly, naming the appellant as the person who committed the offence. All the eye-witnesses, including the injured witnesses, attributed the commission of the offence only to the appellant in their statements under Section 161 Cr.P.C. It is difficult to imagine that the complainant and the eye- witnesses had all falsely named the appellant as being the person responsible for the offence at the initial stage itself. Thus, we do not see any cogent reasons to interfere with the concurrent findings of fact by the courts below. The appeal lacks merit and is hereby dismissed.''
57. Applying the ratio of above said pronouncement of Hon'ble Apex in the facts and circumstances of instant case and considering the evidence on record, it clearly emerges that all the incriminating circumstances have been cogently and firmly established and these circumstances are of definite tendency unerringly pointing towards guilt of the accused-appellant. When these circumstances taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human probability, the murder of deceased Luxman was committed by the accused-appellant Boby @ Sushil and none else. The circumstantial evidence is incapable of explanation of any other hypothesis than that of the guilt of the accused-appellant and it inconsistent with his innocence. In view of evidence on record we reach to the conclusion that conviction of accused-appellant is based on evidence and there are no tangible reasons to interfere with same same. The sentence awarded to accused-appellant is also appropriate. Thus, the appeal has no merit.
58. Appeal is dismissed.
59. Accused-appellant Boby @ Sushil is stated in judicial custody, hence he shall serve out remaining sentence.
60. A copy of this order as well as the trial court record be sent back to the court concerned.
Date: 29.09.2020
A. Tripathi
(Raj Beer Singh, J) (Ramesh Sinha, J)