Allahabad High Court
Naresh Chandra Sharma vs State Of U.P. on 11 March, 2014
Bench: Amar Saran, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 21.11.2013 Delivered on 11.3.2014 Case :- CAPITAL CASES No. - 4506 of 2012 Appellant :- Naresh Chandra Sharma Respondent :- State Of U.P. Counsel for Appellant :- T.A. Khan Counsel for Respondent :- Govt. Advocate Hon'ble Amar Saran,J.
Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon'ble Mrs. Sunita Agarwal,J.) Heard Sri V.P. Gupta, learned counsel for the appellant and Sri Akhilesh Singh, learned Government Advocate appearing for the State.
This appeal arises out of the judgment and order dated 7.9.2012 passed by the Additional District Judge, Court No. 6, Budaun in Sessions Trial No. 118 of 2011 convicting and sentencing the appellant to death with fine of Rs.25,000/- under Section 302 IPC, 7 years rigorous imprisonment with fine of Rs.7,000/- under Section 201 IPC and one year rigorous imprisonment with fine of Rs.1000/- under Section 506 IPC. Reference No.7 of 2012 under Section 366 Cr.P.C. has also been sent by the trial Court for confirmation of death sentence.
The prosecution story in brief is that on 31.7.2010 at about 8.30 A.M. a written report was submitted by informant Umesh Babu Sharma in which he stated that his younger brother i.e. the appellant had committed murder of his parents and burnt their dead-bodies with cow-dung and some inflammatory liquid in front of the main gate of the house where his parents were living with the appellant accused. The incident occurred at the house of the appellant accused at village Simariya, Thana-Mushajhag, District Budaun. The informant stated that at about 2:30 A.M.in the intervening night of 30/31.7.2010 his younger brother Naresh Chandra Sharma, the appellant called him from the mobile phone no. 9411220363 and threatened him with dire consequences. The appellant told him that he had committed the murder of his parents and had burnt their dead-bodies. The appellant also threatened him that he and his brothers would also meet the same fate. Motive of commission of crime stated in the FIR is that the father of the informant had sold some land and the appellant wanted money from his father. To get money, he murdered his father aged about 70 years and mother aged about 68 years. It was further stated that as soon as he got the information, he came to village Simariya along with his relatives and saw the burnt bodies (in charred state) of his parents lying in front of the main door of the house. On the basis of the written report, a case crime no. 732 of 2010 was registered against the appellant accused under Section 302/201/506 IPC.
The prosecution examined the constable clerk Agnideo Trivedi as PW-5 who proved the written report given by the informant in his own hand writing. He proved that he penned the FIR (Exhibit Ka-4) and entries made in G.D. (Exhibit Ka-5). In his examination-in-chief he proved the inquest of the dead body of Brahma Devi (Ka-6) and inquest of the dead body of Ram Chandra Sharma (Exhibit Ka-7) and stated that the inquest report is in the hand writing of the then Investigating Officer SI Satyaveer Singh. He was a witness of the recovery of bloodstained earth and plain earth and one mud (Khaki) colour plastic jerrycan of 20 liter capacity. He stated that both the recovery memos were prepared in the handwriting of SI Satyaveer and proved his handwriting and signatures on the inquests (Exhibits Ka-6 and Ka-7), recovery memo of blood stained earth and plain earth (Exhibit Ka-8) and recovery memo of plastic jerrycan(Exhibit Ka-9). He also proved photolash of Brahma Devi(Exhibit Ka-10), photolash of Ram Chandra Sharma (Exhibit Ka-11), Namuna Mohar Ram Chandra Sharma (Exhibit Ka-12), Namuna Mohar Brahma Devi (Exhibit Ka-13), challan lash Ram Chandra Sharma (Exhibit Ka-14), challan lash Brahma Devi (Exhibit Ka-15), Report RI Ram Chandra (Exhibit Ka-16), Report CMO Ram Chandra (Exhibit Ka-17), Report CMO Brahma Devi (Exhibit Ka-18), Report RI Brahma Devi (Exhibit Ka-19). He also proved the site plan (Exhibit Ka-20) prepared by SO Devendra Singh after the investigation was handed over to him and the recovery memo of the murder weapon 'Takula' in the handwriting of SO Devendra Singh as Exhibit Ka-21. He also proved that the two additional maps were prepared by SO Devendra Singh in his own handwriting and bore his signatures (Exhibit Ka-22 and Ka-23). The charge sheet was submitted by SO Devendra Singh after completing the investigation which is Exhibit Ka-24.
In his cross-examination he had stated that the FIR was sent in the court on 2.8.2010. The informant came along with one Naresh Singh and Surendra Pal Singh. His brother Dinesh had not accompanied them. All of them had gone on a tractor trolley to the police station. Only the name of Naresh was written in the FIR. The distance of police station from the place of incident was mentioned as 10 kms. in the FIR. In Exhibits Ka-14 and Ka-15, time of sending of the dead body from the place of incident has been mentioned as 11 A.M. whereas the time for completion of the inquest as 11.15 A.M. There is also some discrepancy regarding parentage of the deceased Ram Chandra in the letter RI.
Both the Investigating officers who had conducted the investigation of the case were examined as PW-6 and PW-7. PW-7 is the Investigating Officer who was posted at Thana Musajhar on 31.7.2010 i.e. the date of incident. PW-7 in his statement submitted that the bloodstained earth and plain earth were recovered by him. On 5.8.2010 he along with SO Devendra Singh had arrested Pradeep. The recovery of the 20 litres diesel jerrycan was made at the instance of co-accused Pradeep from the house of the appellant. The site plan of the place of occurrence was prepared by him at the pointing out of the informant. After making entries in the G.D. he recorded the statements of witnesses Munendra and Babloo. Both the dead bodies were found in a burnt state and were sent for post-mortem by him. The inquest was prepared in his own hand writing and bore his signatures.
SI Devendra Singh, the second Investigating officer (PW-6) in his statement submitted that the investigation was handed over to him on 6.8.2010 and the appellant accused Naresh Chandra was also arrested by him on 6.8.2010. After arrest of the appellant accused, PW-6 recorded his statement and recovered the murder weapon (Takula) from the house of the appellant accused at his pointing out. After completion of the investigation the charge-sheet was submitted by him. He also stated in his cross-examination that the map for recovery of the murder weapon (Takula) was prepared by him. Regarding recovery of murder weapon he denied the suggestion put by the defence that no such recovery was made and the recovery memo was prepared at the police station.
PW-4 Dr. Ashok Kumar proved that he had conducted Post-mortem of both the dead bodies. The seal was opened in front of him and it was informed by C.P.680 Brijesh Kumar and CP 832 Nazir Ali who brought the dead body that the body was of Ram Chandra Sharma. When the seal was opened only one Tibiya bone of right leg of Ram Chandra was present. No other part of the dead body was there. Similarly, for the dead body of Brahma Devi he stated that only one Tibiya bone of right leg was present. The seal of the dead body of Brahma Devi was opened in front of the above constables who had brought the dead body and they had informed that the body was of Brahma Devi. He further stated that looking at the condition of dead bodies, reason and time of death could not be ascertained by him.
Apart from these formal witnesses, three witnesses of fact were examined by the prosecution. PW-1 Umesh Babu Sharma, the informant, PW-2 Babloo and PW-3 Munendra Pal Singh. PW 1 Umesh Babu Sharma, the informant in his examination-in- chief reiterated the version of the FIR. He further stated that at the night of the incident, he called Babloo and Mundendra and asked them to verify the fact. When they had confirmed the same, the informant alongwith his brother-in-laws Suresh Mishra, Surendra Mishra and Rajeev Sharma and his brother Dinesh came to village Simariya. He went straight to the house where his parents were residing. He found the dead bodies of his parents lying in a charred condition in front of the main door of the house. He also stated that the doors of the room where his parents were living, were also burnt. In his cross-examination on the suggestion put by the defence he stated that the details of the phone calls have not been given by him to the Investigating Officer. He further reiterated that the murder was committed by Naresh i.e. the appellant accused to get money from his father who had sold the land prior to the incident. He also stated that at the time of execution of the sale deed he was called by his father. In his cross-examination, he further stated that after he got information about the incident he verified the same from Babloo who was a neighbour in the village. However, the name of Babloo has not been disclosed in the FIR though his name was mentioned in the statement given by him under Section 161 Cr.P.C. Babloo told him over telephone that Naresh had murdered his parents and he had seen the incident. However, he did not call Munendra in the night of the incident. PW-1 in his cross-examination stated that he alongwith his relatives came to village from his residence at Bareilly and straightway went to the house, saw the dead bodies and then went to the police station to lodge the FIR. He moved from Bareilly at about 6:00 A.M. alongwith his relatives. He stayed at the police station for about 20-25 minutes. He did not go straight to the police station from Bareilly. His statement was recorded by the Investigating officer on the next date of the preparation of the inquest report. About the house of his parents, the informant PW-1 submitted that there were three rooms in the house, out of which the door of one room was opened from outside in which his parents were living. For the rest of the incident he stated that he did not know as to who had brought the diesel from Munendra and he had only seen the charred bodies of his parents. He performed the cremation of his parents and thereafter he returned to his house at Bareilly. He did not go back to the village. He and his relatives or any other member of the family did not stay at the village after the cremation was done. All other rituals were performed by him at his house in Bareilly. So far as the sale of land is concerned, he stated that there was around 35 bighas land in total in the name of his father and brothers, 6-7 bighas land was sold by his father prior to the incident. Money(Sale consideration) was kept by his father. Four bighas of land was sold by his father for an amount of Rs. 1,40,000/- in the end, and the money was kept by his father. When a suggestion was put to him that the money was given to Naresh and hence he and his brother Dinesh committed the murder as his parents wanted to give the entire money to Naresh and his children, the informant PW-1 had categorically denied the said suggestion.
PW-2 Babloo stated in his examination-in-chief that he was a neighbour of appellant Naresh. He stated that at about 12.30 P.M. in the intervening night of 30/31.7.2010 Umesh, brother of appellant called him from Bareilly and inquired as to whether Naresh had committed the murder of his parents, then he went to the house of Naresh. He witnessed that Naresh and Pradeep (son of Naresh) were setting ablaze the dead bodies of Ram Chandra Sharma and Brahma Devi in front of their house. After burning the dead bodies they ran away. He came back to his house and called Umesh and informed him that the incident had actually occurred. In the morning, Umesh alongwith his brother Dinesh and other relatives came to the village and lodged the report against the appellant at the police station. In the cross-examination PW-2 Babloo stated that after receiving the call he went to the place of incident and when he reached there, he witnessed the dead bodies burning. He witnessed the incident from some distance and did not go near the place of incident. He stated that he did not witness that the accused had committed the murder of his parents. The place from which he witnessed the incident was shown by him to the investigating officer. He stated that there were three rooms in the house of appellant Naresh and Naresh was living with his parents. The parents were not living at Bareilly. Out of three rooms, one was a "pakka" room and two were "kachcha" rooms in the house in which Naresh and his family members were living with the deceased. Deceased parents were living in a separate room in the house. He denied the suggestion of the defence that the murder was committed by Umesh and Dinesh.
PW-3 Munendra pal Singh in his examination-in-chief stated that around 5 P.M. in the evening prior to the incident, Pradeep, son of Naresh came to his house. He brought a 20 litre plastic jerrycan and asked him to give diesel for agricultural purpose. He gave 15 ltr. diesel in the plastic cane which was brought by Pradeep. He did not witness the incident rather he went on the spot in the morning and found that the members of the house including Naresh and Pradeep were not there. Though this witness was declared hostile, however, he was allowed to be cross-examined by the prosecution and the defence on the limited point that he had witnessed the incident. Though he denied having witnessed the incident, yet in his cross-examination, on the suggestion put by the defence counsel, he categorically stated that Naresh did not take the diesel. The plastic cane was 20 ltrs. in capacity. He further stated that it is false to suggest that Pradeep did not go to take diesel from him in the evening of the incident. He reiterated that Pradeep took the diesel from him at about 5/5:30 PM in the evening.
The postmortem on the dead body of Ram Chandra Sharma was conducted on 31.7.2010 at 4.25 PM. The doctor reported injuries as follows:-
5th degree burns with charring of whole body plus ashes in a bundle.
In the column of cause of death, it was mentioned that the cause of death could not be ascertained and one bone was sent for forensic examination.
The postmortem on the dead body of Brahma Devi was conducted on 31.7.2010 at 4.45 PM. The doctor reported injuries as follows:-
6th degree burns and charred body plus ashes presented for postmortem.
In the column of cause of death, it was mentioned that the cause of death could not be ascertained and one bone was sent for forensic examination.
The statement of the appellant-accused was recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to him and he denied the same. Lastly he stated that he was innocent and the informant had murdered his parents and falsely implicated him in the crime. One defence witness DW-1 Netrapal Singh son of Asharfi Lal Kashyap was produced to set up a plea of alibi of Naresh and his son Pradeep. He stated in his examination in chief that at about 12 Noon when he went to the house of Naresh to take money for the manure provided by him, Naresh, his wife, son Pradeep and all the children were going to the house of daughter of Naresh for her Bidai. It was the first Bidai of daughter of Naresh after her marriage. Naresh gave money to him and left the house with his family. Naresh told that they will come back after three days. He further stated that when in the morning he was going to the field he saw the bodies of the parents of Naresh in the cremation ground (shamshan Ghat). The police recovered the bodies of the parents of Naresh from the 'Shamshan Ghat'. On the night of the incident Naresh and his family members were not at home. The police arrested Naresh and Pradeep from the house of daughter of Naresh on the next day. In his cross-examination regarding location of the house of Naresh he disclosed that there was one 'Pakad' tree in front of the house of Naresh. He further stated that he came to know about the murder of the parents of Naresh in the morning and saw the dead bodies at the 'Shamshan Ghat'. He did not see the dead bodies in front of the house of Naresh.
Shri V.P. Gupta, learned counsel for the appellant submits that the prosecution had failed to put all the incriminating circumstances to inculpate the appellant accused. This is a case of circumstantial evidence and the chain of circumstances could not be completed by the prosecution by cogent and reliable evidence. While elaborating his submissions, he submits that the FIR was ante-timed. The said fact is apparent from the statement of the informant who came to the village in the morning and stayed there for about 3-4 hours. The informant did not go straight to the police station for lodging of the FIR. As per the statement of the informant, he left Bareilly at about 6 A.M., covered a distance at around 50-55 kms., reached his house in the village with his relatives, stayed there and then went to the police station to lodge the FIR. He also stated that the police came to the village after 1-1/2 hours when he reached the village. The time of the FIR in the check report is 8:30 A.M. which is too prompt in view of the statement of the PW-1. He further submits that the existence of FIR itself is doubtful as in the FIR, distance of the place of the occurrence has been mentioned as 10 Kms in the East whereas in the inquest, the distance from the police station has been mentioned as 10 kms. North-East. In the FIR, only the name of Naresh has been mentioned whereas the charge-sheet was submitted by the investigating officer against two persons namely Naresh appellant and his son Pradeep. His further submission is that the statement of PW-1 the informant that he was informed about the incident by appellant Naresh on his mobile is unbelievable for the reason that he did not give any details of the phone calls to the investigating officer. The investigating officer also did not investigate about the phone calls alleged to have been made by the informant to Babloo PW-2. The informant has not mentioned in the FIR that he called Babloo PW-2 in the night so as to confirm the occurrence of the incident. The extra judicial confession of the appellant accused over telephone to his brother Umesh, informant cannot be relied upon. He pointed out that there is difference in the time of phone call mentioned by Umesh PW-1 and Babloo PW-2. The informant Umesh in his statement had submitted that Naresh called him around 2:30 A.M. in the intervening night of 30/31.7.2010 and thereafter he called Babloo to confirm the incident whereas PW-2 had stated that Umesh called him at 12:30-1:00 P.M. in the night. He categorically denied that the phone call was received by him around 2:30 A.M. in the intervening night of 30/31.7.2010. On the basis of these discrepancies, learned counsel for the appellant argued that as no phone call details were given by the informant and no investigation was made by the investigation officer, the entire prosecution story from the beginning is a concocted one. The prosecution has failed to establish even lodging of the FIR by PW-1, the informant. Statement of PW-1 is not to be believed as admittedly he did not witness the incident. The only circumstance against the appellant accused that he has committed murder of his parents and set ablaze the dead bodies is the information provided by the informant PW-1 which is wholly unreliable. In fact, PW-2 Babloo also did not witness the incident of burning of the dead body as stated by him. PW-3 Munendra, the witness of fact had turned hostile and categorically denied that he had witnessed the incident. He also denied that the informant called him in the night and he went to the place of incident. Thus, from these facts, it is clear that nobody had witnessed the incident. It is highly probable that the informant alongwith his brother Dinesh had committed the murder of his parents, taking advantage of the fact that the appellant and his family were not present in the house and falsely implicated him in the crime. As a matter of fact, the appellant accused was living with his parents and was looking after them. It has come up in the statement of PW-1 that his uncle Rameshwar Dayal gave his share in the land to the appellant Naresh and his wife and after his death the said land was in possession of the appellant. There is strong possibility of Umesh and Dinesh having committed the crime to get their share of money in the land sold by their father Ram Chandra Sharma, as appellant Naresh was living with his parents and his parents might have intended to give money to Naresh and his children.
Learned counsel for the appellant further submits that the postmortem of the deceased was conducted on 31.7.2010 at about 4:25 P.M. and 4:45 P.M. The submission of PW-1 is that after cremation of his parents he had gone back to his house at Bareilly and did not stay in the village. However, in his cross-examination he also stated that he stayed in the village for about 4-5 hours after he reached there. Thus there are discrepancies and inconsistencies in the statement of the informant PW-1. Learned counsel for the appellant further submits that in the case of circumstantial evidence, these discrepancies and inconsistencies are of material consideration and fatal to the prosecution story as neither the time of commission of crime nor the time of the lodging of the FIR could be established by the prosecution. The prosecution solely relied upon the alleged extra judicial confession of the appellant accused over telephone to the informant. The informant being brother of the appellant had interest in the property of his father and might have carried grudges against the appellant as the appellant and his family were living with the parents.
Learned counsel for the appellant further disputed the recovery of bloodstained earth and plain earth, 20 ltr. diesel plastic jerrycan and the murder weapon (Takula). He submitted that the recovery of these articles were made from open places. It has come up in the evidence that nobody was in the house and the house was open. These articles have been planted to implicate the appellant. The recovery of these articles cannot be said to be the recovery under Section 27 of the Evidence Act and cannot be connected with the alleged crime. Moreover, the murder weapon was not sent for forensic examination and there is no mention in the report of the forensic laboratory that human blood was found in the bloodstained earth sent for chemical examination. As is evident from the record, the map prepared by the first Investigating Officer Satyaveer Singh (Ka-23) does not indicate the place or rooms from where the alleged recovery of plastic jerrycan and the murder weapon(takula) was made. There is difference in the site plan made by the second Investigating Officer for recovery of plastic diesel jerrycan (Ka-22) and recovery of the murder weapon (Takula) (Exhibit ka-20) and the site plan prepared by the first investigating officer for the place of incident. Infact the places/rooms from where the recoveries were alleged to be made do not exist in the house of the appellant and further the said places are open places in the house. Moreover, PW- 2 denied his signatures on the recovery memo.
Learned counsel for the appellant further pointed out that no specific question was put to the appellant regarding recovery of the murder weapon (Takula) alleged to have been made at his pointing out. As all the incriminating circumstances were not specifically put to the appellant accused while recording his statement under Section 313 Cr.P.C. it has caused serious prejudice as he was not in a position to explain the circumstances and place his defence. There was no motive for commission of the crime. The alleged motive stated by the informant PW-1 was based on no evidence. It is a case of circumstantial evidence. No one has seen the incident and in such a case motive is of great importance. The prosecution has failed to prove the motive for the commission of the crime. This fact itself is sufficient to discard the entire prosecution case.
Lastly, he submits that as per the statement of PW-1 he was accompanied by his relatives and younger brother Dinesh. None of the relatives and his younger brother Dinesh had appeared in the witness box. The prosecution story is based only on oral evidence of two witnesses namely PW-1 and PW-2. There are contradictions, inconsistencies and discrepancies in the statement of these two witnesses and in the absence of any other evidence on record, the prosecution has failed to support its case. Their testimony cannot be said to be reliable and trustworthy. The fact that Dinesh, younger brother of the informant and other relatives were not produced by the prosecution in support of its case, the conviction is based on weak evidence. Conviction of the appellant on the basis of such weak evidence cannot be sustained. Hence, the conviction as also the death reference are liable to be set aside and rejected by this court.
Shri Akhilesh Singh, learned Government Advocate, repelling the submission of learned counsel for the appellant accused, submits that the complicity of the appellant in the crime is proved on the basis of reliable evidences by the prosecution. The suggestion of the defence that the FIR is ante-timed is not worthy of acceptance in view of the version of the informant in the FIR that he came to know about the incident on mobile from his younger brother the appellant that he had committed murders of his parents and set on fire their bodies. He further submits that it has come up in the statement of the informant PW-1 that after getting the information from the appellant, he had verified the same from his neighbour Babloo who confirmed the version of the appellant. Thereafter, the informant along with his relatives and his younger brother Dinesh came to the village in the morning. The time of the FIR is 8:30 A.M. Certain discrepancies pointed out by the counsel for the appellant in the time mentioned in the inquest report and in the letter RI for sending the dead bodies for postmortem, but it cannot be inferred that there was no FIR at the time of preparation of the Inquest. Learned Government Advocate further submits that the circumstances against the appellant are proved. The murder weapon (Takula) which was recovered at the instance of the appellant from his house was sent for chemical examination. In the report of Forensic Laboratory Agra, the chemical examination expert opined that the blood was found in large portions of the weapon though it was disintegrated. The argument of learned counsel for the appellant in respect of the discrepancies in the map of recovery and in the map showing the place of incident is misconceived. It may be noted that both these maps were prepared by two investigating officers. The map showing the place of incident was prepared by the first investigating officer whereas the maps showing recovery of murder weapon and plastic jerrycan were prepared by the second investigating officer to whom the investigation was handed over on 6.8.2010. These maps were prepared for different purposes and there is no difference in the boundaries of the house as mentioned in both the maps. In view thereof, the fact that the place from where the recovery was made, was not shown in the map prepared giving details of the place of incident is of no consequence. The alleged discrepancy is not fatal to the prosecution story.
He further submits that in the present case the conduct of the accused is relevant under Section 8 of the Evidence Act. It is apparent from the record that the appellant was not present at the place of incident when the informant and his other relatives reached the house of their parents at the village. There is no dispute about the fact that the appellant and deceased persons were living in the same house. Inspite of the fact that old aged parents died in a gruesome incident, the appellant remained absconding with his entire family. He was arrested on 6.8.2010. Later on, the plea of alibi was set up by the defence. The said plea was never suggested to the prosecution witnesses and not even to the investigating officer.
He further pointed out that so far as motive is concerned, it has been clearly stated in the FIR as also in the chief and cross-examination of PW-1 who deposed that certain land was sold by his father prior to the incident and the appellant was insisting upon his father to give money(sale proceeds) to him.
He further submits that as no eye witness was there, the present case is a case of circumstantial evidence. The persons who had accompanied the informant to the village were not aware of any fact. The prosecution had examined only those witnesses who were able to unfold the story of the prosecution.
It was further submitted that so far as the contention of the learned counsel for the appellant that all the incriminating circumstances were not put to the appellant accused while recording his statement under Section 313 Cr.P.C is concerned, it may be noted that the fact regarding the alleged incident of murder and burning of the bodies of his parents was specifically put to the accused appellant but the appellant did not offer any explanation and simply denied his involvement in the crime. When a question was put to him to give his explanation, he did not offer any explanation in respect of the murder of his parents who were living with him in the same house. Rather a plea was taken that he was innocent and was falsely implicated by the informant and the informant had committed the crime. Learned Government Advocate submits that the said explanation offered by the appellant is false per se in view of the fact that the appellant did not say anything about his whereabouts at the time of the occurrence of the incident. Moreover, he himself did not come forward to inform about the murder of his parents and had absconded and was arrested after six days of the incident by the police. Though PW-3 was declared hostile, but his statement supported the case of the prosecution to the extent that the son of the appellant had gone to his house in the evening of the incident with 20 litres diesel jerrycan and took 15 litres of diesel on the pretext that he needed the same for agricultural purposes. The recovery of plastic jerrycan was made by the investigating officer at the instance of Pradeep son of the appellant from the house of the appellant after he was arrested by the police on 5.8.2010.
Lastly, he stated that considering the gravity of the offence and the manner in which it was committed, this case comes within the category of 'rarest of the rare case' and the death reference sent by the trial court deserves to be confirmed.
Having considered submissions of the learned counsel for the parties and after carefully perusing the record and judgment of the trial court we find that there is no dispute about the fact that the incident occurred in the house at the village in which the appellant with his entire family alongwith his parents were residing. No eye-witness account is available though PW-2 in his statement submitted that he had seen the appellant and his son pouring diesel on the bodies of the deceased and then setting them ablaze. He further submits that he had seen the incident from a distance and reached the place of incident, when he had received the phone call of the informant, to verify the fact. There is certain discrepancy in the time of phone call stated to have been received by PW-2 Babloo who was a neighbour of the appellant in the village. The informant has taken a categorical stand in his testimony in chief and in cross-examination that he had received a call from the appellant at about 2:30 A.M. in the intervening night of 30/31.7.2010 and thereafter he called Babloo to confirm the fact. Whereas Babloo PW-2 had deposed that he had received call at about 12:30 in the night and thereafter he went to the spot. This witness in his examination-in-chief, though, stated that he had seen the appellant and his son setting ablaze the bodies. However, in his cross-examination he deposed that he witnessed the fire but he did not see the appellant and his son at the place of incident. He also stated that when he reached there, nobody was there. It is apparent from the testimony of this witness that he was not an eye witness of the incident. He only affirmed that he reached the spot to verify as to whether any such incident had actually occurred when called by the informant in the night. He witnessed that the bodies were set at fire in front of the house of the appellant and confirmed the same to the informant. Though he is not an eye witness, yet in his testimony he had deposed consistently that he had seen the bodies burning outside the main gate of the house of the appellant from a distance. When a suggestion was put to him that he did no go to the place of incident and had not seen the fire, he had categorically denied the same. The testimony of this witness is reliable and truthful to the extent that he had received the phone call of the informant in the night and he reached the spot and witnessed the burning dead bodies of the deceased.
In so far as PW 3 is concerned, he was declared hostile. He was allowed to be cross-examined by the prosecution as also the defence counsel. In his testimony in chief and in his cross-examination, he categorically deposed that Pradeep, son of the appellant had gone to his house at around 5:00 P.M. in the evening of the day of incident. He came with a plastic jerrycan of 20 litres and asked to provide diesel for agricultural purposes. PW-3 Munendra gave him 15 litres of diesel in the plastic jerrycan. He denied the suggestion that Pradeep did not go to his house to bring diesel, he categorically denied the said suggestion of the defence counsel in his cross-examination.
It is well settled that merely because the witness was declared hostile, his entire testimony can not be excluded from consideration. In an appropriate case, the Court can rely upon part of testimony of such witness, if that part of the deposition is found to be credit worthy.
In statement particularly the examination-in-chief in so far as it supports the case of the prosecution is admissible and can be relied upon. Reference be made to Sathya Narayanan vs. State represented by Inspector Police (2012) 12 SCC 627; Lahu Kamlakar Patil & another vs. State of Maharashtra (2013) 6 SCC 417; Bhajju alias Karan Singh vs. State of M.P. (2012) 4 SCC 327; Ramesh Harijan vs. State of U.P. (2012) 5 SCC 777 and Bhagwan Singh vs. State of Haryana (1976) 1 SCC 389.
In the instant case, the testimony of PW-3 that Pradeep, son of the appellant had gone to his house at 5/5:30 P.M. in the evening prior to the incident on the intervening night of 30/31.7.2010 and took 15 litres diesel from him in a plastic jerrycan of 20 litres. The said statement is corroborated from the recovery of the plastic jerrycan from the house of the appellant at the instance of Pradeep, son of the appellant. In view of the same, we find that the testimony of PW-3 to the extent it supports the prosecution is admissible and can be relied upon.
Now coming to the statement of PW-1, the informant, he had deposed that after verifying the occurrence of the incident, he had moved from Bareilly alongwith his relatives (three brother-in-laws) and his brother Dinesh at about 6 A.M. in the morning. They covered a distance of about 50-55 kms from Bareilly and reached the house of his parents. When he reached the house in the village he saw the villagers gathered there and the charred bodies of his parents lying in front of the house. The doors of the room in which his parents were residing, were also burnt. Thereafter he went to the police station alongwith his relatives and lodged the FIR. The written report was submitted by him in his own handwriting. He stayed at the police station for 20-25 minutes and thereafter had gone back to the village. The police reached the spot and after completing formalities had sent the dead bodies for postmortem. The charred bodies of his parents were wrapped in two separate cloth and there was nothing left except the ash and one bone of a leg of the dead bodies. He could recognize the body of his mother from the ring that she was wearing in her toe. In the evening he performed the cremation of his parents and thereafter left the village. He also stated that none of his family members or relatives stayed at the village after the cremation was done by him and other rituals were performed by him in Bareilly itself. In the cross-examination also this witness did not deviate from his stand that he had received a phone call from his brother and came to know about the incident. He confirmed the statement of his brother from his neighbour Babloo at the village and reached there in the morning.
After carefully and minutely examining the testimony of this witness we can safely hold that the testimony of this witness is natural and trustworthy. In the facts of the case, the natural ordinary human conduct would be that after coming to know about the death of his parents, the informant straightway had gone to his house rather than to the police station to lodge a report against his brother. He went to the village alongwith his relatives and after reaching the spot of incident i.e. the house where his parents were living he stayed there for some time and then went to the police station to lodge the FIR. When the informant reached the house in the village, neither the appellant nor his family was there. The house was open and the villagers were assembled outside. In so far as the time of FIR is concerned, it is noteworthy that the informant left Bareilly at about 6 A.M. in the morning and covered a distance of 50-55 kms. The time mentioned in the FIR is 8:30 A.M. The contention of the learned counsel for the appellant that in view of the statement of PW-1 informant in his cross-examination that he stayed in the village for about 3-4 hours, the FIR could not have been said to be lodged at 8:30 A.M. as mentioned. The statement of PW-1 in his cross-examination that he stayed in the village for about 3-4 hours after he reached there and he went to the police station to lodge the FIR after meeting the villagers at the place of incident. This does not mean that he stayed for about 3-4 hours before lodging of the FIR as suggested by the appellant's counsel. Moreover, PW-5 Constable Clerk Agnideo Trivedi had deposed that the informant came to the police station in a tractor trolley alongwith his relatives and lodged the FIR. The report was written by him in his own hand writing. The check FIR was written by PW-5 and entries were made in the General Diary. Thus, PW-5 proved lodging of the FIR by the informant. In his cross-examination when a suggestion was put to this formal witness that there were certain discrepancies about the direction of the place of incident from the police station. In the FIR it has been mentioned that the place of incident was at the East whereas in the inquest the direction mentioned was North East. The said difference in the direction of the place of incident is of no significance in view of the evidence on record that the dead bodies were recovered in a charred condition in front of the house of the appellant. Thus, on the basis of this the prosecution has successfully proved the place of occurrence of the incident i.e. the house of the appellant where the deceased were also residing.
In the case in hand, there is no eye-witness of the occurrence and the case of the prosecution rests on circumstances evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. The circumstances should be of definite tendency unerringly pointing towards the guilt of the accused. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that in all probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.
In the instant case it has been proved beyond doubt by the prosecution that the incident had occurred inside the dwelling house of the appellant where the deceased were living alongwith their son Naresh, the appellant accused and his family members. The appellant accused was normally residing with his parents in the house at the village and his other brothers were residing in Bareilly. In view of the said fact, the appellant had all the opportunity to plan and commit the crime at the time and in the circumstances of his choice. In such a case it becomes extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the court. To this fact situation, Section 106 of the Evidence Act is attracted. Illustrations appended to this Section are also relevant to understand the content and scope of this provision. Section 106 alongwith the illustrations reads as under:-
"106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him Illustration
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
The applicability of the above provision has been explained by the Apex Court in State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254. Paragraph 23 and 24 of the said judgment are relevant which are quoted as under:-
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218."
"24.There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
In the case of Trimukh Maroti Kirkan Vs. State of Maharastra reported in (2006) 10 SCC 681, the Apex Court has considered in paragraph 18, the question of burden of proof where some facts are within the personal knowledge of the accused as examined in State of W.B. vs. Mir Mohammad Omar reported in (2000) 8 SCC 382.
"18. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed an appeal challenging the acquittal of the accused for the murder charge. The accused had not given any explanation as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports:
"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."
In the instant case, the appellant has not given any plausible explanation for murder of his parents in the gory incident in the house in which he was residing with them. Though he has taken a plea that the murder was committed by his brother in the house in which he was residing with his parents, yet no averment has been made as to his whereabouts at the time when the crime was committed.
The Apex Court in the case of Trimukh (supra) came across almost similar circumstance and has observed in paragraph 21 of the judgment which is quoted as under:-
"21.. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]."
In the case of Rafiq Ahmad Alias Rafi vs. State of Uttar Pradesh reported in (2011) 8 SCC 300 in paragraph 66 and 67 it was observed that the accused for the reasons best known to him had taken a stand of complete denial in his statement under Section 313 Cr.P.C. and opted not to explain his whereabouts at the relevant time. In paragraph 67, the plea of consideration of statement under Section 313 Cr.P.C. of the accused was considered and it was observed as under:-
"67. It is true that the statement under Section 313 Cr.P.C. cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events. It is clearly established from the evidence on record that the deceased was a regular trader and used to come to Nehtaur from where he was picked up by the appellant on the fateful day. These were certain definite circumstances clearly indicating towards the involvement of the appellant in the commission of the crime. The prosecution has been able to establish its case beyond reasonable doubt on the basis of the circumstantial evidence. There is no significant link which is missing in the case put forward by the prosecution. "
The Apex Court in Sunil Clifford Daniel Vs. State of Punjab reported in (2012) 11 SCC, 205 in paragraph-50 has observed the following :-
"50.It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, to decide as to whether or not, the chain of circumstances is complete. The aforesaid judgment has been approved and followed in Musheer Khan v. State of Madhya Pradesh, (2010) 2 SCC 748. (See also: The Transport Commissioner, A.P., Hyderabad & Anr. v. S. Sardar Ali & Ors., AIR 1983 SC 1225)."
Thus, in the circumstances of the present case, the accused was under obligation to give a plausible explanation for his absence in the house when the murder of his parents was committed and the bodies were burnt in front of the house. He should have atleast offered an explanation regarding his whereabouts at the time of the occurrence of the incident. Mere denial of the prosecution case coupled with the absence of any explanation is inconsistent with the innocence of the appellant accused together with the hypothesis that the appellant is a prime accused in the murder of his parents. We are conscious of the fact that this would not release the prosecution of its burden of proving its case but when the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the Court to draw a different inference.
In the instant case, in our opinion, the prosecution has succeeded in proving the fact that the incident had occurred in the house of the accused. Thus, the inference would be that he had a special knowledge regarding the facts and could have offered an explanation, which for the reason best known to him was not offered by him. Thus in our opinion, the prosecution has succeeded in proving certain facts from which a reasonable inference can be drawn against the appellant accused proving his complicity in the crime.
Now coming to the next situation, in the instant case, the previous and subsequent conduct of the appellant accused is also to be seen as the appellant has taken a plea of alibi by producing a defence witness Netrapal Singh (DW-1). DW-1 in his deposition stated that the appellant alongwith his family had gone to his daughter's place. In his deposition he submits that in the evening at around 12 (midnight) when he had gone to the house of the appellant accused, the appellant alongwith his wife, son Pradeep and his other children were leaving the house. He was told that the appellant was going to his daughter's house for her 'Bidai'. That was her first 'Bidai' after marriage. He also stated that Naresh and Pradeep were arrested from his daughter's house. This witness was set up by the defence who had deposed on 28.8.2012. He further stated that he had seen the dead bodies of the parents of the appellant at the place of cremation in the morning of the day of incident. He did not see the dead body in front of the house of the appellant.
As discussed above, the appellant did not aver in his statement under Section 313 Cr.P.C. that he was not present in the house on the day of the incident. He did not even disclose about his whereabouts. A false statement was given by him under Section 313 Cr.P.C. that the informant had committed the crime. In case, the informant would have committed the crime, the natural conduct of the accused appellant and his family members who were normally residing with the deceased, would be that they should have endeavoured to save the lives of the deceased. They would have raised an alarm to call the neighbours to save the life of the deceased parents. No such attempt was made nor even a suggestion was given that any such attempt was made by the appellant accused. On the other side, the appellant's earlier attempt was to mislead by producing a witness to set up a plea of alibi. Thus, the conduct of the accused became relevant under Section 8, 9 and 11 of the Evidence Act. The fact is that soon after the commission of the crime the appellant accused absconded from the house alongwith his entire family. His son was arrested on 5.8.2010 and the recovery of 20 litre plastic jerrycan was made at his instance. On 6.8.2010 i.e. the next date, the appellant accused was arrested and the recovery of murder weapon (takula) was made at the pointing out of the accused. It is noteworthy that diesel plastic jerrycan and the murder weapon (takula) both were found in a hidden state inside the house of the appellant accused.
PW-3 Munendra though turned hostile, yet he had categorically stated that 15 litres of diesel was brought by Pradeep son of the appellant accused in the evening at 5:00 P.M. prior to the incident in the intervening night of 30/31.7.2010. From the fact of recovery of plastic jerrycan and the above categorical statement of PW-3 Munendra it is difficult to appreciate the version of the defence witness Netrapal that the appellant accused and his entire family was not present in the house on the day of incident. It is well settled that a plea of alibi must be proved with absolute certainty so as to exclude the possibility of presence of the person concerned at the place of occurrence. Alibi is not an exception(special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant.
In Jayantibhai Bhenkarbhai vs. State of Gujarat reported in (2002) 8 SCC 165 the Apex Court in paragraph 18 and 19 has considered Section 11 of the Evidence Act and plea of alibi taken by the defence. It was held that the burden of the accused is undoubtedly heavy. Paragraph 18 and 19 of the said judgments are reproduced as under:-
"18.Section 11 of the Evidence Act, 1872 provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact or if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or a relevant fact highly probable or improbable. Illustration (a) of Section 11 reads as under :
Illustrations
(a) The question is, whether A committed a crime at [Calcutta], on certain day. The fact that, on that day A was at [Lahore] is relevant.
The fact that near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) xxx xxx"
"19. The plea of alibi flows from Section 11 and is demonstrated by illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (a special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilty on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligations is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court."
Thus, we conclude that the plea of alibi taken by the appellant accused at a late stage by producing a defence witness is to be discarded as untrustworthy.
With this, we come to the next submission of the learned counsel for the appellant that in the absence of an independent witness, no reliance can be placed upon the statement of PW-1 and PW-2 as they are interested witnesses. The submission that as per the statement of PW-1 he alongwith his brother-in-laws and younger brother Dinesh reached the village after getting information of the incident, however, none of the relatives or his brother Dinesh was produced by the prosecution and hence this is a missing link in the chain of circumstances which proves the guilt of the appellant beyond reasonable doubt.
Dealing with the said submission of the learned counsel for the appellant, it is noteworthy that the informant PW-1 in his statement had given a compete chain of circumstances. He has categorically stated that he received the information from the appellant about the incident, verified it from the neighbour of the village Babloo and then moved from his house at Bareilly by car with his relatives and younger brother Dinesh. When he came to the house of his parents at the village he found the dead bodies of his parents in a charred condition lying outside the house. Babloo, the neighbour who had received the phone call of the informant in the night of the incident, went to the spot, witnessed the flames and informed PW-1 that the incident had occurred. He was produced by the prosecution as PW-2. These are the witnesses who could have unfolded the prosecution story. In case, any other independent witness would have been examined, no other circumstances could have been added as they had no knowledge about the incident. Thus, we conclude that the non-production of other relatives of the informant who had accompanied him to the village is not fatal to the case of the prosecution.
So far as motive is concerned undoubtedly in a case of circumstantial evidence motive bears important significance. From the evidence on record, it is true that the accused appellant wanted to get rid of his parents so as to get money of the sale proceeds of the property sold by his father. The submission of the defence counsel that there is no proof of the alleged motive stated by the informant and hence his statement alone is not sufficient. It may be noted that in the case of Mulakh Raj and others vs. Satish Kumar and others (1992) 3 SCC 43 the Apex Court has held that when facts are clear it is immaterial that no motive has been proved as sometimes motive is such that it is locked up in the mind of the accused and it is difficult to unlock the same. The failure to discover the motive of an offence does not signify its non-existence and is not fatal as a matter of law.
Regarding recovery it is noteworthy that the recovery of the murder weapon (Takula) was made at the instance of the appellant accused and in the forensic report it was pointed out that in a large portion of the murder weapon blood was found though it was disintegrated. Further, recovery of a 20 litre plastic jerrycan at the instance of the son of the appellant Pradeep is corroborated with the evidence of PW-3 Munendra that diesel was brought by Pradeep son of the appellant in the evening prior to the incident. When a suggestion was put to this witness(PW-3) by the defence that Pradeep had not gone to the house of Munendra to bring diesel, Munendra (PW-3) had categorically denied the said suggestion and stated that it was Pradeep who had gone to his house to bring diesel. The recovery of the murder weapon and recovery of an empty 20 litre plastic jerrycan are the recoveries under Section 27 of the Evidence Act and have been proved by cogent evidence on record.
Lastly, the learned counsel for the appellant submits that in the examination under Section 313 Cr.P.C. the incriminating circumstances were not put to the accused. When the question was put to the appellant's counsel as to what explanation the appellant accused could have offered in respect of the circumstances which were against him, he was not in a position to give any reply to the same (Vide Shivaji Sahebrao Bobade and another vs. State of Maharashtra reported in AIR 1973 SC 2622). Thus, we see that no prejudice has been caused to the appellant as he did not even disclose his whereabouts on the date of incident. Thus, we are of the opinion that the said argument of learned counsel for the appellant is not worthy of acceptance.
From the above material, we have noted the following circumstances relied upon by the prosecution and accepted by the trial Court:-
(1) The deceased were normally residing with the appellant accused and his family.
2) The death occurred in the house.
3) On 30/31.7.2010 i.e. the date of incident, the appellant accused was in the house with his family members.
4) PW-3 had deposed that son of the appellant accused had gone to his house with a plastic jerrycan of 20 ltrs. capacity and brought 15 liters diesel in the evening at around 5:00 P.M. prior to the occurrence of the incident in the intervening night of 30/31.7.2010.
5) PW-2 had gone to the spot and had seen the flames outside the main gate of the house of the appellant in the intervening night of 30/31.7.2010.
6) PW-2 informed PW-1 who reached the village in the morning and lodged a prompt FIR.
7) PW-2 and PW-3 had witnessed the charred dead bodies lying outside the main gate of the house.
8) The appellant accused failed to offer any explanation about his whereabouts at the time of the incident, and remained absconding after the incident till arrested by the police.
9) Nothing has been stated by the appellant in his statement under Section 313 Cr.P.C. nor any suggestion was made by the defence to prosecution witnesses that the appellant accused was not present in the house at the time of the incident.
10) The plea of alibi taken by the appellant accused at a later stage by producing defence witness DW-1 Netrapal, who had deposed on 28.8.2012, was not established.
11) The appellant accused had taken a false plea in his statement under Section 313 Cr.P.C. that he was innocent and the crime was committed by the informant, though he offered no explanation about his absence at the house.
12) No FIR was lodged by the appellant or his family members that the informant had committed the murder.
Upon analysis, we find that though there is no direct evidence, yet the unnatural conduct of the appellant, immediately after the occurrence; and the false plea of alibi are telling material circumstances which would complete the chain of circumstances projected by the prosecution to establish that in all human probability the accused appellant committed the ghastly offence of murder of his old parents. Putting all these circumstances together, we fully concur with the judgment of the trial Court that the appellant accused was author of the crime.
On the question of reference of death sentence sent by the trial Court, we may notice that the Apex Court in the case of Ramnaresh and others vs. State of Chhattisgarh reported in (2012) 4 SCC 257 laid down the principle while determining the question relating to imposition or otherwise of the death sentence. The principle as laid down in paragraph 77 of the said judgment are as follows:-
" 77. while determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
Principles
1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."
In the case of Shanker Kisan Rao Khade vs. State of Maharashtra reported in (2013) 5 SCC 546, the Apex Court has considered its earlier judgments and observed that for converting the death penalty to that of imprisonment for life, the Court has to strike a balance between the aggravating and mitigating circumstances and other factors like the age of the accused, possibility of reformation, lack of intention to murder. In paragraph 142 of the said judgment it was observed that the Apex Court has been seriously reconsidering, though not in a systematic manner, awarding life sentence as an alternative to the death penalty by applying the formula laid down in the Constitution Bench judgment in Bachan Singh vs. State of Punjab reported in 1980 (2) SCC 684. In Ramnaresh (supra) the Apex Court has observed in paragraph 80 that every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Court should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death.
Guided by the above principles, we shall now proceed to deal with the contention raised by the learned counsel for the appellant that the present case is not one of the 'rarest of rare' cases where the Court should find that imposition of life imprisonment would be entirely inadequate. We have already held that the accused is guilty of the offences under Sections 302, 201 and 506 IPC. However, on the question of quantum of sentence, we are of the opinion that though the accused is guilty of offence yet, the imposition of life imprisonment in place of death sentence would be adequate in the facts and circumstances of the present case. Reason being that there is nothing on record to suggest that the appellant accused is a threat to the society at large or he is previous convict or was involved in any other crime. There is every likelihood of the appellant being reformed. Thus, we modify the death sentence awarded by the trial court to imprisonment of life. The accused would be considered for remission or premature release under the guidelines for all purposes i.e. under the Jail Manual etc. or even under Section 433-A Cr.P.C.
In view of above facts and circumstances, we uphold the judgment of the trial Court dated 7.9.2012 convicting the appellant Naresh Chandra Sharma with the modification of the sentence from death to life imprisonment. The reference for confirmation of death sentence is rejected.
With the above modification, the appeal is dismissed.
Order Date :- 11.3.2014 P.P.