Allahabad High Court
Chandan Singh vs State Of U.P. on 24 December, 2021
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Court No. - 46 Case :- CAPITAL CASES No. - 7 of 2021 Appellant :- Chandan Singh Respondent :- State of U.P. Counsel for Appellant :- Pradeep Kumar Mishra,Vinay Saran (Senior Adv.) Counsel for Respondent :- G.A. With REFERENCE No.6 of 2021 And Case :- CRIMINAL APPEAL No. - 1861 of 2021 Appellant :- Kalicharan @ Karua And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Pradeep Kumar Mishra,Vinay Saran (Senior Adv.) Counsel for Respondent :- G.A.,G.A. Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered by Manoj Misra, J.)
1. (i) As both these appeals and the reference arise out of a common judgment and order dated 31.03.2021 passed by Additional Sessions Judge, Court No.10, Mathura in connected Sessions Trial Nos. 219 of 2019 and 220 of 2019, these two appeals and the reference are being decided/ answered by a common judgment and order.
(ii) In Sessions Trial No. 219 of 2019, arising out of case crime no.456 of 2018, P.S. Raya, District Mathura, five persons, namely, (i) Chandan Singh, (ii) Kali Charan @ Karuwa, both sons of Chittar Singh; (iii) Anil son of Kali Charan, (iv) Gajraj son of Gulab Singh; and (v) Smt. Bhago Devi @ Bhagwati Devi wife of Chandan Singh, were put on trial. Chandan Singh, Kali Charan, Anil and Gajraj were charged for offence punishable under Section 302 read with Section 149 I.P.C.; and Smt. Bhago Devi was charged under Section 302 read with Section 120-B I.P.C. In this Sessions Trial No.219 of 2019, the accused Chandan Singh, Kali Charan @ Karuwa; Anil and Gajraj have been convicted under Section 302 read with Section 34 I.P.C. and have been punished as follows:-
(iii) Chandan Singh awarded death penalty; whereas, Kali Charan @ Karuwa, Anil and Gajraj were awarded life imprisonment and fine of Rs. 50,000/-. Bhago Devi was however acquitted.
(iv) In Sessions Trial No. 220 of 2019, arising out of case crime no.460 of 2018, P.S. Raya, District Mathura, Chandan Singh alone was tried and convicted under Section 3/25 Arms Act and awarded punishment of three years R.I. with fine of Rs. 10,000/- and a default sentence of three months.
(v) Capital Case Appeal No. 7 of 2021 has been filed by Chandan Singh against the judgment and order dated 31.03.2021 passed by Additional Sessions Judge, Court No. 10, Mathura in Sessions Trial No. 219 of 2019 and Sessions Trial No. 220 of 2019 against his conviction and sentence under Section 302/34 I.P.C. and 3/25 Arms Act. Likewise, as capital punishment has been awarded to Chandan Singh the court below has made a reference for confirmation of death penalty, which is Reference No.6 of 2021 and is connected with the appeal.
(vi) Criminal Appeal No. 1861 of 2021 has been filed by Kali Charan @ Karuwa, Anil and Gajraj against the judgment and order dated 31.03.2021 passed by Additional Sessions Judge, Court No. 10, Mathura in Sessions Trial No. 219 of 2019 against conviction of these appellants under Section 302/34 I.P.C.
INTRODUCTORY FACTS IN CHRONOLOGICAL ORDER
2. (i) On 19.06.2018, at about 6.20 am, the police of P.S. Raya, District Mathura received information through Delta (code name of surveillance unit) that three bodies have been found in a village named Nagla Bharau under PS. Raya, District Mathura. On receipt of this information, the police rushes to the spot, lifts the bodies from three separate places and brings them to the mortuary and carries inquest proceeding. These three bodies were of (a) Sundar Singh son of Chittar Singh (Deceased No. 1 for short D-1); (b) Satya Prakash Singh son of Gudar Singh (Deceased No.2 for short D-2); and (c) Bhawar Singh son of Ramji Lal (Deceased No.3 for short D-3).
(ii) Inquest proceeding of Bhawar Singh commences in the mortuary at about 11.40 am and is completed by 12.50 pm on 19.06.2018 resulting in inquest report (Exb. Ka-34), prepared by Sub-Inspector R.K. Gautam (PW-14). The witnesses to this inquest are Surya Sain (PW-5); Brij Kishore; Ram Khilari; Rajpal Singh; and Mukesh.
(iii) Inquest proceeding of Satya Prakash Singh is also conducted at the mortuary by SSI Daya Narayan Singh (PW-11) and is completed by 12 noon on 19.06.2018 resulting in inquest report (Exb. Ka-24), prepared by Daya Narayan Singh (PW-11) which is witnessed by Budh Singh son of Bhudar Singh (PW-6); Narendra son of Raghuveer Singh; Rahul son of Budh Singh; Surya Sain son of Satya Prakash Singh (PW-5); and Deepak Singh.
(iv) Inquest proceeding of Sundar Singh is also conducted at the mortuary by S.I. R.K. Gautam (PW-14) on 19.06.2018 and is completed by 13.40 pm, resulting in Inquest report (Exb. Ka-35), prepared by R.K. Gautam (PW-14) which is witnessed by Brij Kishore; Rajveer Singh; Mukesh; Ram Khilari; and Surya Sain (PW-5)
(v) All the three bodies were sent for autopsy, which is conducted by Dr. Devendra Mohan (PW-10).
(vi) Autopsy report (Exb. Ka-7, dated 19.06.2018, Time: 3.45 pm) of deceased Bhawar Singh reveals following external ante-mortem injuries:
(a) Firearm wound of entry 0.7 cm x 0.7 cm on left side back of chest 2 cm from midline of back (spine) and 7 cm from left scapula, tattooing was present around wound over area 16 cm x 18 cm;
(b) Firearm wound of exit 2 cm x 1 cm on right side chest, 7 cm from right nipple. On probing both one and two wounds are corresponding with each other.
(c) Rigor mortis found present.
Internal examination revealed two liters of free and clotted blood in chest cavity. Right lung found lacerated. Stomach containing 100 ml of watery fluid and small intestine had liquid and gases and large intestine had faecal matter with gases. Estimated time of death was half a day before.
According to the opinion of the Doctor, death was due to shock and hemorrhage as a result of ante-mortem injuries.
(vii) Autopsy report (Exb. Ka-12, dated 19.06.2018, Time: 2.25 pm) of deceased Satya Prakash Singh reveals following external ante-mortem injuries:-
(a) Firearm wound of entry 5.0 cm x 2 cm on right side chest, 3 cm away from right nipple and 6 cm from sternum, margin of wound inverted and red spots present around wound over 20 cm x 28 cm area on the right side and front of chest;
(b) Abrasion 6 cm x 4 cm on right (sic) just away from right elbow;
(c) Rigor mortis found present.
Internal Examination revealed third rib fractured; both lungs lacerated and 1.5 litre free and clotted blood in chest cavity; stomach contained 100 ml watery fluid. Small intestine had liquid and gases and large intestine had faecal matter.
It be noted that a metallic bullet was recovered from left side of back of chest just below scapula which was sealed and handed over for forensic examination.
According to the doctor the death was due to shock and haemorrhage due to ante-mortem injuries. The estimated time of death was half a day before.
(viii) Autopsy report (Exb. Ka-18, dated 19.06.2018, Time: 3.05 pm) of deceased Sunder Singh reveals following external ante-mortem injuries:-
(a) Firearm wound of entry 3 cm x 1 cm on right side neck, 2 cm away from manubriosternal notch and 12 cm away from right nipple, tattooing present around wound over 4 cm x 6 cm area.
Internal Examination reveals right clavicle fractured, about 1 litre of free and clotted blood in chest cavity, right lung lacerated and left lung pale, stomach containing 100 ml watery fluid, small intestine had liquid and gases and large intestine had faecal matter and gases.
According to the opinion of the doctor death was due to shock and haemorrhage as a result of ante-mortem injury. The estimated time of death was half a day before.
It be noted that one metallic bullet was recovered from the body which was sealed and handed over for forensic examination.
(ix) At 12.30 hours on 19.06.2018, written report (Exb. Ka-1), scribed by Tejveer Singh (PW-1), is lodged by Jitendra Singh son of Raghuveer Singh (PW-2), stating therein that in the intervening night of 18/19.06.2018 his real uncle Satya Prakash Singh (D-2), aged about 70 years, former Gram Pradhan, who was sleeping in his field to protect the standing crop from animals, was killed by some unknown assailant by use of firearm. It was also alleged that he, later, came to know that a retired army man, namely, Bhawar Singh son of Ramji Lal (D-3), aged about 55 years, a resident of his village, who was sleeping at his 'Neohara' (a place where cattle is tied and kept) was also killed by unknown assailant by use of firearm; and, that, he came to know, one Sundar Singh son of Chittar Singh (D-1), aged about 45 years, who was sleeping on the Chabutra in front of his house was also killed by unknown assailant by using firearm. This written report was registered as first information report (FIR) (Exb. Ka-3) bearing Case Crime No. 456 of 2018 against unknown persons.
(x) On registration of the FIR, investigation of the case was taken over by G.P. Singh (PW-13), who visited three different spots where the three bodies were found. He lifted plain earth and blood-stained earth from the spot where body of Satya Prakash (D-2) was found and prepared Fard memo (Exb. Ka-26) on 19.06.2018, which was witnessed by Jitendra Singh (PW-2) and Dinesh Prakash Singh (PW-8). Similarly, he lifted blood-stained and plain earth from the spot where body of Bhawar Singh (D-3) was found and prepared Fard memo (Exb. ka-28) on 19.06.2018 whose witnesses are Sunil Kumar and Jagdish Prasad. He also lifted one bundle Bidi and a piece of blood soaked blanket from the spot where the body of Bhawar Singh was found and prepared Fard memo (Exb. Ka-27), which was also witnessed by Sunil Kumar and Jagdish Prasad.
(xi) Noticeably, no blood was found at the spot from where the body of deceased Sundar Singh (D-1) was lifted.
(xii) On 19.06.2018 itself, PW-13 prepared three site plans of three separate places from where the bodies of D-1, D-2 and D-3 were found and lifted. Exb. Ka-29 is the site plan of the place where the body of the deceased Satya Prakash (D-2) was found. Noticeably, the place where D-2's body was found is surrounded by fields. Exb. Ka-30 is the site plan of the place where the body of Bhawar Singh (D-3) was found. This place is shown to be surrounded with open fields though, towards North-west, under construction house of Smt. Sunahari Devi is shown. Exb Ka-31 is the site plan of the place where the body of deceased Sundar Singh was found. The site plan indicates that body was lying on the Chabutara, adjoining a pakka (metalled) road which lies towards the west, and in front of the shop of Sundar Singh (D-1) lying on east. Across the metalled road towards west were houses of Satyaveer and Sanju and adjacent to the house of Satyaveer and Sanju, across the metalled road towards South, is the house of Rajendra Singh. Importantly, just behind the Chabutra, towards south east there is house and courtyard of deceased Sundar Singh (D-1) with a door opening towards west i.e. metalled road. Towards North there is open field with standing crop of Sundar Singh, Chandan Singh (accused) and Kalicharan (another accused). Likewise, at the back of the house, towards east, there is vacant field of Sundar Singh, Chandan Singh and Kali Charan. Towards south of the Chabutra there is house and courtyard of Sundar Singh.
(xiii) During the course of investigation, the police received an application on 25.06.2018 (Exb. Ka-2) from Surya Sain (PW-5) in which it is stated by Surya Sain, son of deceased Satya Prakash Singh (D-2), that in the night of the incident his uncle Budh Singh (PW-6) was also sleeping outside to protect his crop and he had witnessed the incident but due to fear he did not disclose anything but, now, he has disclosed it to him that the crime has been committed by Chandan Singh son of Chittar Singh; Anil son of Kali Charan; and Gajraj son of Gulab Singh with the help of persons called from outside and in the entire crime, Kali Charan and Bhago Devi were also involved. It was disclosed in this application that Chandan Singh and Anil were eyeing the share of deceased Sundar Singh (D-1) in the house and were not willing to give Sundar Singh his share therefore, the deceased (Sundar Singh) had made a complaint about this to PW-5's father (Satya Prakash - D-2) and Fauji Bhawar Singh (D-3). It is because of this enmity that Chandan Singh, Gajraj Singh and Anil, with the help of people called from outside, got them killed. After receipt of the aforesaid application, PW-13 proceeded to record statement of Surya Sain (PW-5); Budh Singh (PW-6); Dinesh Singh (PW-8); and Raj Kumar (PW-7). On 27.06.2018, PW-13 arrested accused Chandan Singh, Anil Kumar and Gajraj. On their arrest, they allegedly confessed their guilt and on the pointing out of Chandan Singh, a country made pistol .315 bore, with a stuck empty cartridge, was recovered from a field located towards North of the wall of the house of Chandan Singh which had standing crop. The site plan (Exb. Ka-32) prepared by PW-13 indicated that the distance of the spot from where the pistol was recovered was 35 paces North of the wall of the house of Chandan Singh. The site plan also indicated that the place from where the recovery was made had access to common Kharanja road of village Nagla Bharau.
(xiv) The seizure memo (Exb. Ka-33) of the country made pistol with cartridge was prepared by PW-13 and was not witnessed by any member of the public. The seizure memo indicates that the accused Chandan Singh was taken to the spot and he searched out the weapon from the middle of the crop standing in the field and handed it over to the police. The seizure memo does not indicate that the weapon was buried in the ground. Prior to that, on 24.06.2018, the police had also prepared a memorandum of taking over a photocopy of a complaint letter dated 05.09.2017 purportedly given by deceased Sundar Singh son of Chittar Singh stating therein that on 05.09.2017, at about 7 am, Sundar Singh's brother Kali Charan, Chandan Singh and Smt. Bhago Devi and his nephews had assaulted him and Smt. Bhago Devi had beaten him with slippers. Seizure memo (Exb. Ka -38) was signed by PW-13 and witnesses Sunil Kumar and Jagdish.
(xv) On the basis of seizure memo (Exb. Ka-33), PW-13 - G.P. Singh lodged an FIR (Exb. Ka-5) at PS Raya, District Mathura on 27.06.2018 at 12.28 hours under Section 3/25 Arms Act against Chandan Singh, which gave rise to Case Crime No. 460 of 2018. The police, thereafter, continued to search for the accused Kali Charan and Bhago Devi. Ultimately, Kali Charan and Bhago Devi surrendered in Court on 21.07.2018. The police, thereafter, submitted charge-sheet (Exb. Ka-36), dated 30.08.2018, in Case Crime No. 456 of 2018, on which cognizance was taken on 18.09.2018. Likewise, after investigation of Case Crime No. 460 of 2018, the police submitted charge-sheet (Exb. Ka-41), dated 06.08.2018, on which cognizance was taken on 25.08.2018. In the charge-sheet of Case Crime No. 456 of 2018, 47 prosecution witnesses were enlisted. The name of Malti (PW-12) was conspicuous by its absence. In charge-sheet of Case Crime No. 460 of 2018 there were 14 police witnesses only. On 27.03.2019, the case arising out of Case Crime No.456 of 2018 was committed to the Court of Session. The Sessions Court framed charge of offence punishable under Section 302/149 I.P.C. against Chandan Singh, Kali Charan @ Karuwa, Anil and Gajraj and under Section 302 read with Section 120 B I.P.C. against Smt. Bhago Devi @ Bhagwati Devi. In the connected Sessions Trial No. 220 of 2018, Chandan Singh was separately charged for offence punishable under Section 3/25 Arms Act. On denial of the charges, the trial commenced.
PROSECUTION EVIDENCE
3. The prosecution examined as many as 15 witnesses. Their deposition, in brief, are as follows:-
(a) PW-1- Tejveer Singh. He is the scribe of Exb. Ka-1 i.e. the written report which was registered as FIR (Exb. Ka-3). He proved that he wrote the application on the dictates of Jitendra Singh (PW-2) and others.
(b) PW-2- Jitendra. He states that he had submitted the written report (Exb. Ka-1) by dictating it to his nephew (Tejveer Singh - PW-1). He proved the Exb. Ka-1 as being signed by him. He, however, denied paper no. 4A/63, stated to have been signed by him, to disclose that PW-6 (Budh Singh) is an eye-witness of the incident.
In his cross-examination, he stated that three different spots from where bodies of D-1, D-2 and D-3 were recovered were at a distance of about 1 km from each other and that he does not know which of the three deceased was killed first.
(c) PW-3 - Rajendra Singh. He stated that neither he witnessed the incident nor he has knowledge as to who has committed the murders and he has also not given any statement to the police. He was declared hostile and was cross-examined by the prosecution.
In his cross-examination, he was confronted with his statement recorded under Section 161 Cr.P.C. On being so confronted, he stated that he has not given any such statement to the police. He denied the suggestion that he has joined hands with the accused and therefore, has turned hostile. He was also cross-examined by the defence wherein he stated that in the night of the incident as well as the preceding day he had not met Satyaveer.
(d) PW-4 - Satyaveer. He stated that information regarding the death of Sundar Singh, Bhawar Singh and Satya Prakash was given to him by his family members on phone that all three had been killed by unknown assailants. He has no knowledge about the incident and that at the time of the incident he was working in a factory at Raipur.
This witness was declared hostile and was confronted with his statement recorded under Section 161 Cr.P.C. He stated that since six months before the incident he had been staying out, as to how the investigating officer recorded his statement he is not aware. He denied the suggestion that he has colluded with the accused and is therefore, lying. In his cross-examination, at the instance of the defence, he further stated that in the month of January 2018 he had migrated to Raipur, State of Chattisgarh, where he worked in a Gas Plant and stayed there continuously for eight months and returned in August, 2018. He also stated that in the village there is no other person by his name. He further stated that he has no knowledge of the incident.
(e) PW-5 - Surya Sain Singh. He stated that his father (Satya Prakash Singh - D-2) in the intervening night of 18/19.6.2018 was sleeping in his field to protect the standing crop and in the night, he was killed by unknown assailants. On the same night, Bhawar Singh (D-3), who was sleeping at his 'Nehoara', and Sundar Singh (D-1), who was sleeping on his Chabutra in front of his house, were also killed by unknown assailants of which his cousin brother Jitendra (PW-2) made a report at PS Raya. He stated, that in the night of the incident, his uncle Budh Singh (PW-6) was also sleeping in the field and had recognised the assailants but, due to fear he did not make any disclosures about them. Later, PW-6 informed him that Chandan Singh, Anil, Gajraj and Kali Charan had killed PW-5's father and Bhago Devi @ Bhagwati Devi was also involved. He stated that the accused Chandan Singh bore enmity with PW-5's father because PW-5's father had influenced Chandan Singh's father Chittariya (i.e. Chittar Singh) to execute a Will in favour of Sundar Singh (D-1) and for this reason, Gajraj also bore enmity with PW-5's father. The accused also wanted to evict PW-5's father from Gram Samaj land ad-measuring 13 Bighas. He proved Exb. Ka-2. He also stated that inquest of all the three deceased was carried out at Mathura mortuary and was witnessed by him.
In his cross-examination, he admitted that he neither saw the accused killing the deceased nor he saw them near the place of incident on or about the time of the incident. He also admitted that he had not seen Bhago Devi conspiring for the murder of the deceased persons. He further stated that he has no personal knowledge that his uncle Budh Singh, in the night of the incident, was sleeping near his late father Satya Prakash (D-2). Further, during cross-examination, he stated that his uncle Budh Singh had not told him that he had witnessed the incident. He stated that he was informed by few people that his uncle Budh Singh had witnessed the incident. He stated that on the basis of that information he had given the names of Chandan Singh, Anil, Gajraj and Kali Charan as perpetrators of the crime. He further stated that on the basis of that information he had also named Bhago Devi @ Bhagwati Devi. He reiterated that Budh Singh had not personally informed him that he had witnessed the incident. He also stated that in his presence Sundar Singh (D-1) had not made any complaint to his father (D-2), or to Bhawar Singh (D-3) regarding the conduct of the accused persons.
(f) PW - 6 - Budh Singh. He stated that in the night of the incident he had slept in his own house and that his brother Satya Prakash Singh (D-2) was sleeping in the field to protect the standing crop. In the morning, following the night of the incident, he came to know that his brother Satya Prakash (D-2) had been killed by unknown persons. Later, he also came to know that Bhawar Singh (D-3) and Sundar Singh (D-1) were also killed in the night. He admitted his signature on the inquest report of his brother Satya Prakash (D-2). He stated that he has no information as to who killed Satya Prakash (D-2), Bhawar Singh (D-3) and Sundar Singh (D-1). The witness was declared hostile and was cross-examined by the prosecution.
On being confronted with his statement recorded under Section 161 Cr.P.C., the witness stated that he had never given such statement to the investigating officer and he denied the suggestion that he was trying to protect the accused because they are residents of the same village. He also denied the suggestion that he has resiled from truth because of pecuniary gains. The witness told the court that none of the accused have threatened him nor he has been induced to make a false statement; that whatever he has stated is out of freewill.
(g) PW-7 - Raj Kumar. He is the son of the deceased Satya Prakash (D-2). He stated that till date he does not know who has killed his father. He denied that any confession was made by the accused Chandan Singh, Gajraj, Anil, Kali Charan before him or before his brother Dinesh Prakash. The prosecution declared the witness hostile.
During the course of cross-examination, he was confronted with his statement under Section 161 Cr.P.C. He stated that he had not given any such statement. He denied the suggestion that because of an out of court settlement he is resiling from the truth. He also denied the suggestion that due to fear of the accused he is not stating the truth.
He was also cross-examined by the defence, in his cross-examination by the defence, he stated that neither on 24.06.2018 nor on 25.06.2018, the accused confessed their guilt either before him or his brother Dinesh Prakash. He also stated that his uncle Budh Singh was sleeping in the house on the night of the incident and Budh Singh never informed him of having witnessed the incident of the murder of PW-7's father. He, however, admitted that Surya Sain had got his signature on the application (Exb. Ka-2) but stated that he had not read that application. He stated that he is not aware as to who killed his father (D-2), Bhawar Singh (D-3) and Sundar Singh (D-1).
(h) PW-8 - Dinesh Prakash Singh. He stated that the murder of his uncle Satya Prakash (D-2), Bhawar Singh (D-3) and Sundar Singh (D-1) was committed in the night by unknown persons. Information of the murder was received by him in the morning on 19.06.2018 and, till date, he does not know as to who has committed the murders. He denied that on 24/25.06.2018, in the evening, or thereafter, Gajraj Singh, Chandan Singh, Kali Charan and Anil came and confessed their guilt before him or before anybody else. He was declared hostile by the prosecution.
He has stated in his cross-examination at the instance of the prosecution that he is a Civil Engineer and no statement of his was recorded by the police. When confronted with his statement under Section 161 Cr.P.C., he stated that he has not given any such statement to the police. He denied the suggestion that on account of out of court settlement, he is resiling from the truth. The witness was offered to the defence for cross-examination but the defence did not accept that offer.
(i) PW-9 - Head Constable Kamlesh Kumar. He proved the GD entry of the written report giving rise to Case Crime No. 456 of 2018, which was marked Exb. Ka-2. He proved the registration of the FIR (Exb. Ka-3) as also FIR of Case Crime No.460 of 2018.
In his cross-examination, he stated that he was not aware as to how many persons had come to lodge the FIR. He denied the suggestion that the police team picked up accused Chandan Singh from his house on 24.06.2018 to show a false recovery.
(j) PW-10 - Dr. Devendra Mohan Lal. He proved the autopsy reports of the three deceased persons, already noted above.
In his cross-examination, he admitted that the entry wound found on the three different bodies could be from different weapons. He could not tell whether all three wounds on three separate bodies could be from .315 bore firearm.
(k) PW-11- S.I. Dayanarayan. He proved the inquest report (Exb. Ka-24) of Satya Prakash (D-2).
(l) PW -12 - Malti Devi. Before noticing her deposition it be noted that she was not enlisted as a prosecution witness in the charge-sheet. She moved an application 34 Kha, on 16.10.2020, through a private counsel before the trial court stating therein that she is the wife of deceased Sundar Singh (D-1). In that application 34 Kha it was stated that Sundar Singh (D-1) was earlier married to one Kallo from whom he got a divorce; that Sundar Singh (D-1) had no issue either from Kallo Devi or from her (PW-12); that at the time of incident, she was residing there at village Nagla Barau; that, after the incident, when the police had arrived for investigation, she had informed the investigating officer ( I.O.) that the accused persons had killed her husband with a view to grab his property; that, prior to the incident, the deceased Sundar Singh (D-1) had given an application in her presence on 05.09.2017 to the police expressing his apprehension that he may be killed. She also stated that in the bail application of co-accused Gajraj Singh, Dinesh Kumar, in his affidavit, dated 10.01.2019, in paragraph 16, had stated that the accused would not have got the property on killing Sundar Singh because that would go to his wife Malti Devi. In her application, she narrated that after the death of Sundar Singh, she was thrown out of her in-laws house (Sasural) at Nagla Bharau and since then she had been residing with her father in her parental house. She stated that being the widow of Sundar Singh, she is a victim and she is an important witness and therefore her statement be recorded.
On this application 34 kha, on 09.11.2020, the trial court, exercising its power under Section 311 Cr.P.C., directed for recording her statement on 18.11.2020.
Deposition of Malti Devi (PW-12) Pursuant to the order of the trial court, her statement was recorded. On oath, she stated that deceased Sundar Singh (D-1) was her husband. Sundar Singh was earlier married to one Kallo with whom he had a divorce. Thereafter, Sundar Singh married her (PW-12). He had no issue, either from Kallo or from PW-12. In the night of the incident, her husband was sleeping outside the house, in front of the shop, and she was sleeping inside the house. From inside the room of the house, at about midnight, she heard a gun shot. She came out to notice that Chandan Singh; Kali Charan; Bhago Devi; Gajraj; and Anil were running away with weapons. Thereafter, she kept crying near the body of her husband. In the morning, when the police arrived she disclosed everything to the I.O. She stated that Sundar Singh (D-1) was killed by the accused persons to grab his property. She stated that at the time of the incident she had been residing with her husband Sundar Singh (D-1) in village Bharau. She stated that about nine months before the incident, Sundar Singh had given an application to SSP, Mathura disclosing that he has threat to his life from the accused persons. The said letter was produced as paper no. 4A/72. She recognised the writing and signature of Sundar Singh (D-1) on the said letter, which was marked as Exb. Ka-25. She stated that on the said letter, no action was taken therefore, her husband Sundar Singh (D-1) had told her that he would be placing his grievance before SSP. She stated that on 05.09.2017, her husband was assaulted by the accused persons and she was present there, which must have been between 6-6:30 hours. She stated that after the incident, accused persons had thrown her out of her Sasural. To prove her identity she produced Adhaar card, voter ID card, voter list and domicile certificate.
She was cross-examined on multiple counts: (a) on her relationship with Sundar (D-1); (b) in respect of her presence in the village; (c) in respect of the topography of the house of Sunder Singh (D-1); and (d) in respect of the incident.
In her cross-examination, on her relationship with Sundar Singh (D-1) she stated that she is illiterate and she does not have a marriage card in respect of her marriage with Sundar Singh; that though she has photographs of her marriage but they all lie at her Sasural; that she does not remember the date of her marriage as long time has passed since then; that she does not know in which village Kallo (i.e. previous wife of Sundar Singh) resided; that she was not taken to the doctor even though she did not have a child; that Seetu is her husband's elder brother's son; that she has seen the wife of Seetu; that Seetu's wife is shorter than herself; that Kali Charan has four children; the youngest is daughter Laxmi though, she does not know her age; that Kali Charan is her Jeth; that she does not know the name of Laxmi's eldest child; that the eldest is Anil who is an accused; that Anil's marriage took place 4-5 years ago; that she was not present at the time of marriage; that she was not present at the time Seetu's marriage; Chandan Singh (her Jeth) has six children; the youngest of them is named Pankaj who must be 17-18 years old; that her Jeth Kali Charan's house is separate and at a distance from the house of Sundar Singh; that the house of Kali Charan is farthest; that she has seen the house of Chandan Singh; that on the sides of Chandan Singh's house there is open field and on one side there is Rinku's plot and on the other side there is a road; that Chandan Singh's house is a Pakka built house and at the time of incident, Chandan Singh's house was painted yellow; that Chandan Singh and Sundar Singh including herself use to reside in one house; that in front of their house, there was house of Bhawar Singh; that she does not remember whether there was 1 or 2 buffaloes in the house at the time of the incident;
In her cross-examination, in respect of the incident, topography of the house and the village she states that she does not remember the date of the murder of Sundar Singh; that Sundar Singh's murder was committed in between 1 and 1:30 am in the night; that she did not have a watch to notice the time; that the night was dark or moonlit she does not remember; that on hearing the gun shot she knew that murder has been committed; that at the time of the incident, she was sleeping in a room upstairs; that murder was committed outside the house in front of the shop on the Chabutra; that Sundar Singh wore a cream colour pyjama and kurta; that, at the place of occurrence on one side there was a shop and on all the remaining sides there was high boundary wall; that the height of the boundary wall would be 12 feet; that she was fast asleep and woke up on hearing the gun shot; that, on hearing the gun shot, she came downstairs, opened the gate and reached the spot; that the gate which she had to open was an Iron gate having two parts and window as well; that at the time when her husband was killed there was nobody else; that she had hugged the body of her husband and had also touched his head and, thereafter, returned to her room; that she actually rushed upstairs to her room to save herself; that she does not know whether there is any design on the gate; she told the name of the Pradhan of that village as Pratap though, she could not disclose since when he was Pradhan; she stated that she has not voted in the Pradhan's election; that she does not know for how long she remained with the body of her husband; that she did not put any effort to ascertain whether her husband (D-1) was dead or alive; that the distance between the gate of her husband's house and the shop is 10-15 hands; that one hand distance would be the distance from elbow till the nail of the hand; that she does not remember as to what kind of clothes Gajraj was wearing; that Chandan Singh had a firearm/ Katta in his hand; that Chandan Singh does have moustache; that no weapon was seen in the hand of Anil, Gajraj and Kali Charan; that she also saw Bhago Devi running away though, she did not have weapon in her hand; that her earlier statement was false; that she saw Chandan Singh from a distance of 10-12 paces; that one pace is the distance which one step forward covers; that when she would enter the house towards left she would find toilet; that bathroom is close to the toilet; that the walls of the toilet are yellow in colour; that on the date of the incident in the morning, the police had arrived at about 5:30 am.
On 19.11.2020, she was further cross-examined. In her cross-examination, she stated that her mother-in-law's name is Hoshiyari; that she had not gone to police station to lodge report of her husband's murder; that she had informed the police but had not submitted anything in writing about her husband's murder; that when she heard the gun shot she understood that her husband Sundar Singh has been killed because, the accused had been fighting with him on a daily basis; that at the spot there was no blood; that she does not remember the time when the police had taken away the body of Sundar Singh; that she does not remember whether the police had sealed the body of Sundar Singh or had kept the same in a cloth; that she does not remember as to how many police personnel had come as when the police had come she was inside the house; that police personnel had taken the body of Sundar Singh in an Ambulance; that she has no knowledge whether an FIR was lodged; that after the murder of Sundar Singh, on the next day, her family members (Maike Wale) had come to take her and amongst them were her brother- Ram Kumar, Ashok, her father Ramji Lal and her mother; that in the morning of the next day, i.e. at about 6 am, after her husband had died, her family members had come and she left with them; that her family members may have stayed for 1-2 hours; that distance of her parental house from Nagla Bharau is not known to her; that her parental house is at Phoolpur, Maurapur PS. Baldev; that she does not know as to how her family members arrived in the morning at about 6 am; that her neighbour's name is Bhawar Singh and his wife's name is Geeta.
She denied the suggestion that she had married one Randheer Singh of village Gajaoli, a resident of PS Farah, District Mathura, about 20 years ago. She also denied the suggestion of having given birth to a daughter named Monika from her wedlock with Randheer Singh. She stated that till date she has not given birth to any child. She stated that she has been brought by her brother to give her statement; she stated that Sundar Singh is Inter pass.
She stated that when Sundar Singh had written the letter, he had been assaulted on that very day in the morning, at about 6.30 or 7; she, however, could not remember the colour of Chappal with which he was assaulted; she stated that she was not interrogated by the police in respect of Exb. Ka-25.
She admitted that on the death of Sundar Singh, all property would come to her. She stated that she was not killed because she was inside the house; she further admitted that she had not given any statement to the police or any application to the police or SSP Mathura in respect of what she has stated in Court. She admitted having visited Nagla Bharau, the village where the incident took place, 15-20 days before the incident; she stated that there is a submersible, eight years old, in the house, in front of the bathroom/latrine; and that from the side of the house there is house of Rajendra and Pappu; she also denied the suggestion that she had not seen anyone running away; she, however, admitted that she had not seen any person firing at Sundar Singh; she, again, denied the suggestion that she was married to Randheer Singh 20 years ago and had a daughter named Monika. When confronted with paper no. 37 Ka-3 to 37 Kha-5, she stated that she has no knowledge of those papers and that all those papers are fabricated; she denied the suggestion that the identity documents which she produced are false and fabricated.
(m) PW-13-Inspector-G.P. Singh. He proved the various stages of the investigation including lifting of blood-stained earth and plain earth; recovery of the country made pistol; preparation of site plans; inquest reports, arrest of the accused as also that accused Kali Charan and Bhagwati Devi surrendered in Court; and recording of the statement of various persons during the course of investigation. He stated that the accused Chandan Singh made a disclosure on 27.06.2018 that the weapon used by him in the crime was hidden by him in the standing crop in the field near his house. He stated that on the pointing out of Chandan Singh, from that field, about 35 paces away from wall of the house of Chandan Singh, the country made pistol was searched out by Chandan Singh and handed over to the police of which seizure memo was prepared.
In his cross-examination, he stated that initially no witness disclosed the name of any accused to him; and that, while preparing CD - Parcha No.4, he got hearsay information from persons regarding involvement of Chandan Singh and his family members in the murder. He stated that the country made pistol recovered at the instance of Chandan Singh was lying open in the field, which had a standing crop of Chari (cattle fodder), and was not buried; and that there was an empty cartridge stuck in that pistol. He admitted that there was no public witness of the recovery; and that the case under the Arms Act against Chandan Singh was investigated by S.I. Rajendra Singh. He denied the suggestion that the recovery was bogus and fictitious; and that S.I. Rajendra Singh has wrongly submitted charge-sheet against Chandan Singh.
In his cross-examination, he specifically stated that during the course of investigation, he did not come to know about any wife by the name Malti Devi of deceased Sundar Singh (D-1). He denied the suggestion that he has falsely implicated the accused and had shown a false recovery and false conviction of the accused.
(n) PW-14 - Sub-Inspector - Ram Kishore Gautam. He proved the inquest reports of Bhawar Singh (D-3) and Sundar Singh (D-1). He stated that on 19.06.2018 while he was posted as a Sub-Inspector at P.S. Baldev, he received information from Delta regarding the three murders.
In his cross-examination he stated that he is not aware as to who brought the bodies of the three deceased to the mortuary, and how. He stated that all the inquest witnesses were already present there at the mortuary.
(o) PW-15 - Sub-Inspector - Kamlesh Kumar. He proved the recovery of the country made pistol on the pointing out of the accused Chandan Singh and that after the recovery of country made pistol, the same was sealed and the recovery memo was prepared; he proved the material exhibits with regard to the recovery of country made pistol, empty cartridge, the two bullets recovered from the body including the test cartridges. He also proved material exhibits relating to blood-stained earth, pieces of blanket, etc. In his cross-examination, in relation to recovery of country made pistol from the appellant Chandan Singh, he stated that he does not remember the time when Chandan Singh was taken from the lock up to effect recovery though, he remembers that recovery was made at 11.30 hrs. He stated that the place from where recovery was made is bounded by houses of Chandan Singh and Sundar Singh (D-1) on the east; Chari field towards west; field towards north; and public Rasta (way) towards south. He stated that Chari was about two feet high. He stated that the public witness was not arranged for though, public had arrived at the time of recovery but he does not remember the name of those persons who gathered there. He stated that the pistol was searched out and given by Chandan Singh to PW-13 and was sealed in a cloth which has been marked as Material Exhibit No.17. He admitted that in the material exhibit -17 there are no signatures of the accused Chandan Singh. He, however, denied the suggestion that the recovery is false and fabricated.
4. At this stage, we may notice the forensic reports obtained from U.P. Forensic Laboratory, Agra in respect bloodstained earth and plain earth lifted from where the bodies of D-2 and D-3 were found as also in respect of packet of Beedi, blood soaked blanket, piece of cot, etc recovered from the spot where body of D-3 was found. These reports confirmed presence of human blood and the spot of the incident. Ballistic report was also obtained and produced to confirm that the empty cartridge found in the pistol recovered, bore the mark of the strike pin of that pistol. The striations on the bullets recovered from the body of Sundar Singh (D-1) and Satya Prakash (D-2) could not be matched with striations on test bullets due to insufficient characteristics.
5. After the prosecution had led its evidence, the incriminating material appearing in the prosecution evidence was put to the accused. The accused denied the incriminating material and claimed that they were innocent. The accused Chandan Singh specifically denied the recovery of country made pistol etc. at his instance.
TRIAL COURT FINDINGS
6. The trial court by placing reliance on the testimony of PW-5 and PW-12 found that the accused held motive for the crime as they were not interested in providing share to the deceased who was demanding a share in the property; that the deceased Sundar Singh (D-1) had complained to the police in respect of his apprehension; that the other two deceased were helping deceased Sundar Singh (D-1) to enforce his right therefore, the accused held motive against those two deceased i.e. D-2 and D-3 as well; that PW-12 is the wife of deceased Sundar Singh (D-1); that in the night of the incident, she saw the four accused running away soon after the gun shot and amongst them Chandan Singh was noticed with a gun; that her testimony is corroborated by the recovery of country made pistol from the appellant Chandan Singh and as all the other appellants were seen running from the spot with Chandan Singh in the night of the incident, they shared common intention with Chandan Singh and, therefore, were liable to be convicted for offences punishable under Section 302 read with Section 34 I.P.C. However, upon finding that there was no worthwhile evidence in respect of Bhago Devi hatching a conspiracy of the murder, Bhago Devi was acquitted. The trial court further concluded that all the three murders were committed in the night and there was similar type of injury found on the body of the three deceased, therefore, they appear to have been committed by the same person and could be connected with the weapon alleged to have been recovered from Chandan Singh and, accordingly, awarded death penalty to Chandan Singh, whereas rest of the accused persons were awarded life imprisonment.
7. We have heard Sri Vinay Saran, learned senior counsel, assisted by Sri Pradeep Kumar Mishra, for the appellants in both the appeals including the reference; Sri J.K. Upadhyay, learned A.G.A. for the State, and have perused the record.
SUBMISSION ON BEHALF OF APPELLANTS
8. Sri Vinay Saran, learned counsel for the appellants submitted that admittedly the incident is of midnight; the three bodies were recovered from separate places at a distance from each other and that there is no evidence, either direct or circumstantial, in respect of the murder of Satya Prakash (D-2) and Bhawar Singh (D-3). Further, there is no evidence that all the three murders were part of the same transaction. Thus, in absence of any legally admissible evidence to connect the three murders with the accused put on trial the finding of the trial court that the accused-appellants are guilty of all the three murders is nothing short of being perverse. Further, the eye-witness account of the murder of Sundar Singh (D-1) rendered by PW-12 is not at all reliable and trustworthy. The country made pistol allegedly recovered at the instance of the appellant Chandan Singh could not be connected with the bullet recovered from the body of Sundar Singh through the ballistic report. Hence, he cannot be convicted for the charge of murder. Further, the conviction of Chandan Singh for the offence punishable under the Arms Act is also not proper because, firstly, the recovery of the firearm is false which has no public witness in its support and, secondly, it is alleged to have been recovered from an open field having direct access to the road and was about 35 paces away from the boundary wall of the house of Chandan Singh therefore, the weapon cannot be said to be in possession of the appellant Chandan Singh.
9. Sri Saran submitted that the prosecution story was to rely on the ocular account rendered by Budh Singh (PW-6) and confessional statements made before Raj Kumar (PW-7) and Dinesh Prakash Singh (PW-8). Budh Singh turned hostile and stated that he did not witness any incident; and PW-7 and PW-8 also turned hostile and stated that no one confessed before them. Under the circumstances, when nothing remained in the prosecution evidence, PW-12, turned up, after over two years of the murder of Sundar Singh (D-1), claiming herself to be wife of D-1 and an eye-witness of the incident. Admittedly, PW-12 never moved an application before the police nor her statement was recorded during the course of investigation. She turns up with an obvious purpose, that is to set up a claim over the property of D-1. Though, she claims herself to be the wife of D-1 but, her conduct is such which casts serious doubt, firstly, as to whether she is the wife of D-1 and, secondly, whether she witnessed the incident. This doubt is amplified when she admits in her cross-examination that she does not remember the year and the date of her marriage with D-1. The identity documents which she submits to disclose herself as the wife of D-1 are prepared post the date of the incident. Sri Saran submits that though, in her cross-examination, she tried to demonstrate that she knew the family members as well as topography of the house but all this could be learnt with effort to set up a false claim. He also submits that though, in the application 34 Kha, moved before the trial court, she stated that her status as the wife of D-1 is admitted to the Pairokar of the bail application moved on behalf of one of the accused persons but the deponent of that affidavit was not examined as a witness and therefore, that circumstance is not at all admissible in evidence. Further, her conduct of leaving her husband and not making any complaint for two years renders her testimony completely untrustworthy.
10. Sri Saran also submitted that on the sole testimony of such an eye-witness, who cannot be termed wholly reliable, or of an unimpeachable character, no conviction can be based. More so, when it is clear that the incident was of night; a single gun shot was fired; witness PW-12, according to her own statement, was upstairs when she heard gun shot and that she had to rush downstairs, open the door of her house to witness the scene of crime, it is but natural that the assailants by that time would have effected their escape. Thus, even if it is accepted that she was inside the house at the time when D-1 was shot, since D-1 was shot outside the house, and PW-12 was inside the house, that too, upstairs and had to rush downstairs, open the gate and come out, by then, the accused in all probability would have effected their escape and would not have stayed there to be noticed. Further, she, during later part of her statement, takes a summersault by stating that the statement, made by her, that all the accused had weapons in their hand, is false and that it was only Chandan Singh who had weapon in his hand whereas, the other accused persons were just running with him. All of this goes to show that she is not wholly reliable.
11. Sri Saran also urged that documents were produced by the defence to demonstrate that she was married to one Randheer Singh of another village; and a document was also produced that in her Adhaar card some amendment had taken place which indicated that she might have got her Adhaar card altered recently to show her relationship with D-1 for the purpose of setting up a false claim over his property. Under these circumstances, there is no occasion to rely on the statement of PW-12.
12. Sri Saran also urged that no source of light has been disclosed by the prosecution at the place of occurrence when D-1 is stated to have been shot at. Admittedly, the incident is of post midnight and the moon chart suggests that at 1.15 am on June 14, 2018 it was new moon therefore, in the night of the incident i.e. June 18, 2018, the moon was less than a quarter as it would have been quarter moon only on June 20, 2018 at 4.22 pm. Thus, in absence of proof of light, there was no natural light in which PW-12 could have spotted the accused persons running away, particularly, when she has not stated that she heard them talking/ shouting/ speaking.
13. In addition to above, it was submitted by Sri Saran that the ballistic report (Paper No. 39 Kha -2) indicated that though, empty cartridge (EC-1) found in the pistol at the time of the recovery was fired from the said pistol but the bullets that were recovered from the body of Sundar Singh (D-1) and Satya Prakash (D-2), which were marked EB-1 and EB-2 could not be connected with the recovered pistol, hence, the recovery of the country made pistol was of no consequence to prove the charge of murder of D-1 or D-2. Further, the trial court failed to notice the dimensions of the entry wound on the body of D-1, D-2 and D-3 which, apparently, were from different firearms. In this context suggestion was also put to PW-10, the Doctor, who conducted the post-mortem. He also agreed that the nature of the injuries found on the three bodies could be from different firearms.
14. Lastly, Sri Saran submitted that Ex. Ka-25 i.e. application dated 05.09.2017, alleged to have been written by Sundar Singh to the Superintendent of Police, Mathura expressing threat to his life from his brother Chandan Singh, Kali Charan and Bhabhi Bhago Devi and nephews Seetu and Sibu, on account of property dispute, appears bogus, as its contents are self-contradictory, inasmuch as, though, it allegedly carries signature of Sundar Singh, but states that Sundar Singh is an innocent, illiterate villager. When, in fact, in the cross-examination, PW-12 admits that Sundar Singh was Intermediate (Inter) pass. Meaning thereby that this application was prepared as Peshbandi.
15. In the alternative, Sri Saran submitted that this case, in any view of the matter, does not call for death penalty.
SUBMISSIONS ON BEHALF OF THE STATE
16. Learned A.G.A. submitted that this is a case where the motive for the crime is established by PW-5 and PW-12; PW-12 is a lady, who was threatened and made to leave her Sasural therefore, the delay in her disclosure about the incident will not render her statement, which is otherwise plain and simple, as false; that although there is no source of light disclosed in the testimony of PW-12 but no suggestion has been put to her with regard to non-existence of light at the time of the incident; that, despite cross-examination at length, nothing could come out from her testimony to demonstrate that she is not aware about the relationship of Sundar Singh with his other family members and the very fact that she discloses the topography of D-1's house, she cannot be termed as an impostor. Once, it has been established that she is the wife of Sundar Singh (D-1) or had been living with him, her presence at the scene of the crime would be natural and, therefore, if she arrived at the spot on hearing gun shot, her testimony cannot be disbelieved merely because she was not interrogated during the course of investigation or that she has turned up late, during the stage of trial. He further submitted that the mere fact that other witnesses turned hostile, would suggest that there was terror. Thus, keeping in mind that three persons were killed in one night by use of deadly weapon, PW-12's courage in coming forward to depose discloses her burning desire to put forth the truth. Hence, the conviction of the appellants by relying upon the testimony of PW-12 is justified. On the question of sentence, the learned A.G.A. submitted that the same is at the discretion of the Court.
ANALYSIS
17. Having considered the rival submissions and having perused the record carefully, at the outset, we may observe that although the prosecution may have led some evidence with regard to the motive for the murders of the three deceased, namely, Sundar Singh, Satya Prakash (D-2) and Bhawar Singh (D-3) but, with regard to the incident relating to the murder, the evidence led by the prosecution during trial is confined to the murder of Sundar Singh (D-1). Other than the evidence of motive, there is no evidence at all, either circumstantial, or direct, to hold the appellants guilty for the murder of deceased Satya Prakash (D-2) and Bhawar Singh (D-3). No doubt, three persons (D-1, D-2 and D-3) had died in the intervening night of 18/19.06.2018 and their death appear to be a consequence of single gun shot injury but their bodies were found at different places; and, from the evidence brought on record, it appears that these places were at quite a distance from each other. In one of the statements, it has come that they were at a distance of 1 km from each other. Whatever the distance might be, what is important is that there is no substantive evidence brought on record during trial to demonstrate that any of the appellants were seen killing D-2 and D-3 or, on or about the time of the incident, were seen near the spot from where the body of D-2 and D-3 has been recovered. The only circumstance on the basis of which they (appellants) could have been linked with three murders that took place in that night was the extra judicial confession made before witnesses PW-7 and PW-8, but those witnesses turned hostile from the inception therefore, there remains no evidence to connect the appellants with the murder of Satya Prakash (D-2) and Bhawar Singh (D-3). In addition to the failed attempt to prove extra judicial confession before PW-7 and PW-8, the prosecution produced Budh Singh (PW-6) as an eye-witness of the murder of Satya Prakash (D-2). But he too, turned hostile from the beginning, and denied having witnessed the crime. No doubt, a bullet was found from the body of Satya Prakash (D-2) and Sundar Singh (D-1) but the ballistic report does not indicate that the two bullets were fired from one weapon (firearm). Further, the ballistic report could not connect the two recovered bullets from the country made pistol alleged to have been recovered at the instance of Chandan Singh. Thus, the conclusion of the trial court that because there was similarity in the manner of killing and commonality of motive therefore, the three murders must have been committed by same set of accused, in our view, is purely conjectural and in absence of legal evidence, either circumstantial or direct, has no sustainable basis. We, therefore, have no hesitation in holding that in so far as the murder of Satya Prakash (D-2) and Bhawar Singh (D-3) is concerned, there is complete lack of evidence against the appellants. The appellants are therefore held not guilty for the murder of Satya Prakash (D-2) and Bhawar Singh (D-3).
18. In so far as the murder of Sundar Singh is concerned, the evidence against the appellants, that remains, is circumstantial in nature. The prosecution sought to prove its case against the appellants in respect of the murder of Sundar Singh (D-1) by proving motive, which is sought to be proved by PW-5 and PW-12; the circumstance that they were seen running away, with one of them carrying firearm, from the scene of crime, immediately after gun shot was heard, which is sought to be proved from the testimony of PW-12; and, lastly, by recovery of country made pistol on the pointing out of appellant Chandan Singh alleged to have been used in the crime.
19. Before we proceed further, considering that we are dealing with a case which is to be decided on the basis of circumstantial evidence, it would be useful to notice the legal principles to be borne in mind when the court has to decide a criminal trial on the basis of circumstantial evidence. In Vijay Shankar V. State of Haryana, (2015) 12 SCC 644, the Supreme Court following its earlier decisions in Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116 and Bablu V. State of Rajasthan, (2006) 13 SCC 116, in respect of a case based on circumstantial evidence, held that "the normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these 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 of hypothesis other than that of the guilt of the accused and inconsistent with their innocence". Further (vide paragraph 153 of the celebrated judgment in Sharad Birdhichand Sarda's case), the circumstances from which the conclusion of guilt is to be drawn should be fully established meaning thereby they 'must or should' and not 'may be' established.
20. In addition to above, we must bear in mind that the most fundamental principle of criminal jurisprudence is 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 (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-
"18.On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.
19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
(Emphasis Supplied)
21. Having noticed the legal principles as to when an accused can be convicted on evidence of circumstantial nature, we now proceed to weigh the prosecution evidence in respect of each of the three circumstances noticed in paragraph 18 herein above.
22. In so far as motive for the crime is concerned, PW-5 and PW-12 have sought to prove by their deposition that the deceased Sundar Singh (D-1), whose brothers were Chandan Singh and Kalicharan @ Kalua, was demanding his share in the property but the accused were denying that share. In connection therewith, the deceased Sundar Singh was being helped by the other two deceased, namely, Satya Prakash and Bhawar Singh. It has also come in the testimony of PW-12, that in connection with that there used to be regular fights and bickering. Once, Sundar Singh had also given an application to the police expressing threat to his life from the accused. No doubt, there is a serious dispute with regard to the identity of PW-12, that is whether she is wife of deceased Sundar Singh, but there is hardly any dispute with regard to the relationship between the deceased Sundar Singh and the appellants Chandan Singh, Kalicharan and Anil. Notably, Sundar Singh (D-1), Kalicharan and Chandan Singh are real brothers, all of them sons of Chittar Singh. The accused Bhago, who has been acquitted, is the wife of Chandan Singh. Anil is son of Kalicharan though, Gajraj is not part of the family. According to PW-5, who is the son of Satya Prakash (D-2), the accused Chandan Singh and others were inimical to his father D-2 because he had influenced Chittar Singh to execute a Will in favour of Sundar Singh. Whereas, according to PW-5, Gajraj was inimical to his father (D-2) because D-2 was in possession of Gram Samaj land from which Gajraj wanted to evict D-2. Thus, in view of the evidence led, in absence of any cogent explanation from the accused in their statement recorded under section 313 CrPC, the motive, though might not be too strong, was nevertheless there and has been proved. But, motive alone, though may provide a link to the other circumstances, is not by itself sufficient to record conviction.
23. We, therefore, now proceed to examine the most important circumstance, that is, whether the accused were seen running away from the scene of the crime, with one of them, namely, Chandan Singh, holding firearm in his hand, soon after the gun shot was heard and the deceased Chandan Singh was noticed to have suffered gun shot by PW-12. The proof of this circumstance depends solely on the testimony of PW-12. Therefore, the testimony of PW-12 now comes for analysis.
24. Before we analyse the testimony of PW-12, it would be appropriate to examine the law as to when conviction can be based on the testimony of a sole eye-witness. Although, it is well settled that it is the quality and not quantity of the evidence on which depends the proof of fact but the courts over a period of time have laid down guidelines as to when conviction on the uncorroborated testimony of a solitary witness can be based. In Anil Phukan vs State Of Assam, (1993) 3 SCC 282, the Supreme Court held as follows:-
"........ Conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye- witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction "
25. In State of Rajasthan v. Bhola Singh, AIR 1994 SC 542, the aforesaid statement of law was reiterated in the following words:
" It is well settled that if the case rest only on the sole evidence of the eye-witness, such testimony should be wholly reliable."
26. In Bhimapa Chandapa Hosamani and others v. State of Karnataka, (2006) 11 SCC 323, the apex court reiterated the law in the following words:-
"This Court has repeatedly observed that on the basis of the testimony of a single eye witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness."
27. In a recent decision in the case of Jagdish and others v. State of Haryana, (2019) 7 SCC 711, again, the Supreme Court reiterated the law by observing "conviction on basis of a solitary eyewitness is undoubtedly sustainable if there is reliable evidence cogent and convincing in nature along with surrounding circumstances."
28. A conspectus of the law in respect of when conviction on basis of testimony of a sole eye witness can be recorded, would reveal that though, there is no bar in basing conviction on the testimony of a single eye-witness but, before doing so the court must carefully scrutinise the evidence to be satisfied whether it is free of any blemish or suspicion, is wholly truthful and appears natural and convincing, that is, in short, it is intrinsically reliable, inherently probable and wholly trustworthy.
29. Having noticed the legal position, we now proceed to analyse the testimony of PW-12 as to find out whether the testimony of PW-12 satisfies the criteria of being intrinsically reliable, inherently probable and wholly trustworthy. Before we do so we must notice that PW-12 is coming up with her version for the first time after over two years of the death of Sundar Singh (D-1). Admittedly, she has not given her statement to the police during the course of investigation; she has also not moved any application before the police that she is conversant with the facts of the case which are relevant to the fact in issue; and she gave her testimony only when all the witnesses of fact have been examined and were not supporting the prosecution case. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, the apex court had observed that :
"If a witness professed to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness kept silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstances, in the absence of any cogent reason, was bound to lose most of its value."
These observations of the Supreme Court might have been made at a time when witnesses were ready and willing to depose and come forward as compared to the present days when due to fear the witnesses tend to avoid coming forward. But the substratum of the law remains the same, which is, that there ought to be cogent reason for the witness to have remained silent for that long.
30. In the instant case, we find that though PW-12 states that after the murder of Sundar Singh (D-1), her family members had arrived and she had left with them to her parental house but she has not disclosed in what manner, and when, she was threatened by the accused. She has also not disclosed that her conscience had been pricking her as a consequence whereof, she made an attempt to contact the police in the past for making her disclosure about the incident but, due to intervening circumstances, she could not do so. Interestingly, in the initial part of her statement, she states that in the morning, following the night of the incident, she had informed the I.O. but the I.O. (PW-13), during cross-examination, on 27.11.2020, states that he was not made aware that there was any wife of the deceased by the name of Malti Devi. In that background, her silence of over two years casts a serious doubt on her trustworthiness. This doubt gets amplified when we notice from the record that the documents, which she filed as identity documents, relating to her being wife of Sundar Singh, along with her application 34 Kha, except the Adhaar Card, which carries no date, are documents obtained after the date of occurrence. The defence did make an effort to demonstrate that she was wife of one Randheer Singh and was shown as wife of Randheer Singh in some documents. However, these documents have not been proved in accordance with law to enable us to arrive at a definite conclusion that she is wife of Randheer Singh. But, noticeably, the voter ID card filed by her along with her application 34 Kha is issued on February 20, 2020; and the domicile certificate in which she is reflected as wife of Sundar Singh is dated 14.09.2020. Under these circumstances, there arises a serious doubt with regard to her being the wife of Sundar Singh (D-1) more so, when, to the question whether PW-12 had any photograph of her marriage, she replies by saying that all her photographs are left in her Sasural. Further, when she is cross-examined with regard to the date and year of her marriage, she is unable to answer. The affidavit of Dinesh Kumar, which PW-12 relies upon as an admission by a Pairokar of the accused Gajraj Singh with regard to her being the wife of Sundar Singh, cannot be taken as a piece of admission to bind the accused facing criminal trial and, otherwise also, it is not a substantive evidence, more so, when that person i.e. Dinesh Kumar, who made such deposition in the affidavit, has not been examined as a witness and confronted with the statement made in his affidavit. Keeping in mind all the above circumstances, as also PW-12's statement that Sundar Singh (D-1) was earlier married to one Kallo but, after having a divorce with Kallo, papers of which PW-12 did not produce, Sundar Singh married PW-12, casts a doubt about PW-12's marital status as a legally wedded wife of Sundar Singh. We may clarify that this examination of her marital status as wife of Sundar Singh, is not with a view to make a declaration, which may affect her civil rights, but for the limited purpose of assessing the probability of her presence at the scene of crime. We may further clarify that even if we doubt her marital status as the legally wedded wife of deceased Sundar Singh, her testimony in respect of the incident may still be accepted, if her presence at the scene of crime is proved beyond doubt and her testimony satisfies the criteria of being intrinsically reliable, inherently probable and wholly trustworthy.
31. In this regard, we notice from her deposition that, despite lengthy cross-examination, she has unflinchingly disclosed the topography of the house of Sundar Singh and its surroundings; the names of relatives and family members of Sundar Singh; and what is located where inside the house. All of this, reflects that she is no stranger to the family and has knowledge about Sundar Singh, his house and his relations. Interestingly, during cross-examination, she stated that she came to Nagla Bharau 15 - 20 days before the incident. It is thus clear that she has knowledge about the family of the deceased and could be considered as one having inside information. In this context, a bare denial by the accused about her real status leads us to infer that the defence is hiding something. However, this, by itself, is not decisive for us to conclude whether the accused appellant are guilty though, it may give rise to suspicion, but, it is well settled, howsoever strong a suspicion might be, it is no substitute for legal proof.
32. Therefore, now, we shall examine whether her testimony in respect of the incident is intrinsically reliable, inherently probable and wholly trustworthy. In this regard, we may notice that in the first half of her testimony, she makes a statement that when she heard gun shot and came out of her room, which is upstairs, and out of the door of the house, she saw all the five accused running away with weapon in their hands. On the same day, thereafter, during the course of her deposition, she alters her statement and clarifies that she only saw Chandan Singh having weapon in his hand and running away, whereas, others were just seen running away. This alteration in her stand is an indication that she is not wholly reliable as she seems to be wavering in her deposition.
33. Now, we shall examine whether her testimony is inherently probable or appears natural. To arrive at a definite conclusion on the aforesaid aspect, it would be apposite to recapitulate her statement. She states that she was sleeping in a room on the upper storey of her house whereas the deceased Sundar Singh was sleeping outside the house in front of the shop on the Chabutra when, at well past midnight, she heard a gun shot. Hearing the gun shot, she woke up, came downstairs, opened the door of her house and came out to see the accused running away. There are few important features in her testimony noticed above. First, that she was sleeping inside the room and woke up when she heard gun shot; second, that the room where she was sleeping is upstairs, that is on the upper floor; third, she climbed down the stairs to open the main door of the house to come out; and, fourth, then, she found Sundar Singh (D-1) lying and the accused running away. Noticeably there is a single gun shot injury on the body of deceased Sundar Singh and it is not PW-12's case that the incident was preceded by an altercation or exhortation. Therefore, the question that now arises is whether in that kind of a scenario there was sufficient opportunity for PW-12 to wake up, come down from her room on the upper floor, open the gate, come out and notice the accused running away. At this stage, we may observe that in her deposition she has also stated two important things: (i) that as soon as she heard gun shot she was sure that murder has been committed; and (ii) that had she not been inside the room she would have also been killed. In that kind of a scenario, it is but obvious that she must have been maintaining a safe distance from the spot to avoid the wrath of her husband's assailants. Whether from that so-called safe distance she could identify the assailants, particularly, when it is not her case that she recognised them by their voices, is also a question which needs to be examined, particularly, when the incident is of night and the source of light is not disclosed at the spot by the prosecution evidence. In this regard, though, it has not come that the assailants were spotted in moon light, but it would be apposite to notice the moon chart to test the possibility of the assailants being spotted in moonlight. From the moon chart of June 18, 2018, it appears that on that night the moon would be less than a quarter as it would have been a quarter moon on June 20, 2018 at 4.22 pm. In Dr. Hans Gross's Criminal Investigation, which has been relied upon by the Supreme Court in State of Uttar Pradesh V. Ashok Kumar and Another, (1979) 3 SCC 1, it has been observed:
"By moonlight one can recognise, when the moon is at the quarter, persons at a distance of from 21 feet in bright moonlight at from 23 to 33 feet; and at the very brightest period of the full moon, at a distance of from 33 to 36 feet. In tropical countries the distance for moonlight may be increased."
In the instant case, on the date of the incident, the moon was even less than a quarter. Therefore, taking into account that this is an incident of single gunshot, no other injury, not preceded, or followed, by altercation, or exhortation, or threat, occurring at an open Chabutra adjoining the road, the assailant would have ample time to flee and disappear into the darkness of the night by the time PW-12, sleeping in the room upstairs, could wake up, come downstairs, open the main gate and come out of the confines of her house to witness the assailants running away. Her testimony, therefore, in our view, fails to qualify the test of being inherently probable.
34. Whether PW-12's testimony could be considered trustworthy is what, now, falls for our consideration. Admittedly, PW-12 has an interest in the property of the deceased Sundar Singh (D-1). The accused persons, as per prosecution case, were not interested in providing D-1 his share therefore, by their conviction, PW-12 stands to gain. In that scenario, when we notice that though, she claims herself to be deceased's wife but has remained silent for nearly two years to disclose such an incriminating circumstance, by no stretch of imagination her testimony could be considered trustworthy or of such sterling quality that it could alone form the basis of conviction. Noticeably, there is no cogent explanation for this inordinate delay. The only explanation is that she was threatened and thrown out of her Sasural and next day, her family had come to take her and since, thereafter, she had been staying at her parents' house. This explanation might have been acceptable for a few days or a few months delay but not for the delay as long as two years. Interestingly, PW-12 turns up in the trial when all the key witnesses of the prosecution turn hostile. This suggests that she was keeping a close watch at the proceeding and when she saw that the accused may get acquitted she jumps into the fray to ensure that her interest in the property is secured. When we take a conspectus of all these circumstances discussed above, we come to a definite conclusion that PW-12 is not trustworthy and her testimony is not of that sterling quality which alone can form the basis of conviction or to hold that, on that fateful night, the appellants including Chandan Singh were noticed fleeing from the spot, with appellant Chandan Singh having a gun in his hand.
35. Once we discard the testimony of PW-12 as not reliable, nothing much remains to prove the involvement of the appellants in the murder. Because, as we have already noticed above, the weapon alleged to have been recovered at the pointing out of the appellant could not be connected by forensic evidence with the bullet recovered from the body of the two deceased, namely, Sundar Singh and Satya Prakash. The recovery of the country made pistol therefore, cannot be taken as a circumstance to link the accused Chandan Singh with the murder of the deceased Sundar Singh (D-1) or of Satya Prakash (D-2).
36. For the foregoing reasons, we are of the considered view that the prosecution evidence has failed to bring home the guilt against either Chandan Singh or any of the other accused-appellants put to trial in respect of the three murders. Hence, the charge of murder against the accused-appellants including Chandan Singh is held not proved and, therefore, the conviction of the appellants including Chandan Singh for the murder of Sundar Singh, Satya Prakash and Bhawar Singh is liable to be set aside.
37. Now, we shall examine the validity of the conviction of the accused Chandan Singh for offence punishable under Section 3/25 of the Arms Act. In that regard, the recovery of country made pistol at the pointing out of the appellant Chandan Singh has been denied by Chandan Singh and has been termed as bogus/fabricated. The memorandum of recovery is not witnessed by any public witness and the place from where the recovery is made, from the statement of PW-15 as well as from the site plan, is an open field having direct access from the road. The spot from where the recovery is stated to have been made is 35 paces outside the boundary wall of the house of Chandan Singh. Further, the recovery is not stated to have been made by digging out the weapon from beneath the surface of the earth rather, it is alleged to have been searched out from the field, where it was stated to be lying. Interestingly, this weapon could not get connected with the bullet recovered from the body of the two deceased therefore, in such circumstances, the disclosure statement that allegedly led to its recovery becomes doubtful. Otherwise also, the weapon lying in open field, not buried, cannot be said to be in the possession of the appellant. We are therefore, of the firm view that the appellant is also entitled to be acquitted of the charge of an offence punishable under Section 3/25 of the Arms Act.
38. For all the reasons recorded above, the judgment and order of the trial court in both the trials cannot be sustained. Both the appeals are allowed. The reference to confirm the death penalty is answered in the negative and the prayer to confirm the death penalty awarded to the accused-appellant Chandan Singh is rejected. The judgment and order of the trial court in both the sessions trial is set aside. All the appellants are acquitted of all the charges for which they have been tried. They shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437A Cr.P.C. to the satisfaction of the court below.
39. Before parting, we would like to express our anguish with the shoddy manner in which the investigation of the case was done. This was a case where there were three murders in a village. Noticeably, three persons died on or about the same time in the intervening night of 18/19.06.2018. Their bodies were found at three different places. In the age of mobile telephony, ordinarily, most of the citizens including villagers are having mobile phones. With the help of CDR details, the tower location of the mobile phones, an insight can be had to the turn of events that led to the murders. The investigation is completely absent in that regard. A very simplistic approach has been adopted by the investigating agency in presuming as if the same set of accused committed all the three murders without even noticing that the entry wounds apparently were of different dimensions and the ballistic expert report indicated that the two bullets recovered, one from deceased Sundar Singh and the other from deceased Satya Prakash, could neither be connected with the weapon recovered from Chandan Singh nor could be found as to have been fired from a single weapon. Hence, the investigating agency was required to probe further to find out as to who else could have been involved. No effort of that kind appears visible on the record. It is unfortunate that a triple murder has resulted in no conviction. The Courts cannot convict unless the prosecution leads evidence that establishes the guilt beyond the pale of doubt. The burden is on the prosecution and the investigating agency plays an important role in that regard, which, in the present case they have miserably failed to discharge.
40. Let a copy of this order be sent to the trial court for information and compliance.
Order Date :- 24.12.2021 Sunil Kr Tiwari