Allahabad High Court
State Of U.P. vs Ram Gopal Saini on 2 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1095
Bench: Ritu Raj Awasthi, Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (Reserved) (A.F.R.) Court No. - 3 (In chamber) Case :- CAPITAL SENTENCE No. - 1 of 2017 Appellant :- State of U.P. Respondent :- Ram Gopal Saini Counsel for Appellant :- Govt. Advocate, Nagendra Mohan [AND] Case :- CRIMINAL APPEAL No. - 358 of 2017 Appellant :- Ram Gopal Saini Respondent :- State of U.P. Counsel for Appellant :- Jail Appeal,Raza Zaheer Counsel for Respondent :- Govt. Advocate Hon'ble Ritu Raj Awasthi,J.
Hon'ble Vikas Kunvar Srivastav,J.
(As per Vikas Kunvar Srivastav,J.)
1. Since the Sessions Trial based on circumstantial evidences only, was culminated into conviction of the sole accused for the offence of murder punishable under Section 302 of the IPC and accordingly death sentence is awarded to him, therefore this Capital Sentence No.1 of 2017 is before us for confirmation of the sentence. The reference is admitted vide order of a Division bench of this Court dated 02.03.2017. Simultaneously a Jail Appeal on behalf of the convict detained in District Jail Faizabad sent by Jail Superintendent, is also pending before this Court bearing no. 358 of 2017.
2. The Court of third Additional Sessions Judge, Ambedkar Nagar tried the Sessions Trial no.213 of 2013 under Section 302 IPC, arisen from the case crime no.61 of 2013, registered in Police Station, 'Kotwali Tanda', District Ambedkar Nagar, against the sole accused 'Ram Gopal Saini' arraigning him for the murder of his mother, wife and a son of tender age approximately 4 years. The trial ended with the conviction and sentence of Death punishment under Section 302 IPC vide judgment and order dated 15.02.2017.
3. Sri Nagendra Mohan, Advocate has put his appearance for and on behalf of the accused appellant. Learned Government Advocate, Sri Vimal Prakash assisted by Sri Pankaj Kumar Tewari, A.G.A. represents the 'State' to contest the appeal and defend the reference case of confirmation of Death sentence awarded to the accused appellant. The Session Judge of Ambedkar Nagar District Judgeship has already sent with reference the entire record of trial Court under Section 366 of CH. XXVIII of Criminal Procedure Code 1973 for perusal. Since both, the criminal appeal and the capital sentence reference would have common questions of law and fact to be decided, therefore we think it necessary to hear and decide them simultaneously through a common judgment.
1. Facts of the case
4. Before we proceed further with the pleas for and against the impugned judgment and sentence of capital punishment or 'the Death Penalty', it would be relevant to have a brief introduction of the facts involved in the case. The facts as emerged out from perusal of the materials and evidences on record are that one 'Sunil Mali' son of the sister of the accused appellant approached the Police Station at 06:45 A.M. on 19.04.2013 to inform that his maternal grand mother Kama Devi (mother of appellant), sister in law Kanchan (wife of appellant) and their son Dhairya are lying dead on the floor in the house of the appellant situated at Mohalla Hayatganj, P.S. Kotwali Tanda, District Ambedkar Nagar, in the absence of appellant as he went to attend a feast on the occasion of house warming (Grih Pravesh) of his sister's house in Delhi. On this information Police of Tanda Kotwali Police Station reached at the place of incident at 07:30 A.M. instantly started inquest proceeding in the presence of Tehsildar and made necessary inquiries and seizure of materials from the spot. The inquest witnesses reported to had not given any opinion as to cause of death as there was no obvious and external mark of injury on the dead bodies. However, the dead bodies were lying on the different places of the house on floor with vomits etc. In the presence of relatives, neighbours and police officers on duty the inquest of all the three dead bodies was completed by 09:45 A.M. and body was sent for postmortem. In postmortem house 'viscera' of the dead bodies was extracted and sent to Forensic Science Lab for examination. The report of FSL was received on 23.11.2013 disclosing the use of a pesticide named Aluminum Phosphate (ALP) in the incident. It is notable here that the proceeding of inquiry on spot and that of the inquest and thereafter the postmortem of the dead bodies all were done without lodging first information report (FIR) though Sunil Mali had informed the incident at earliest on 19.04.2013 in morning at 06:45 A.M. The father of Kanchan (deceased wife of the appellant) namely, "Ram Gopal Verma" was throughout remained present on the spot since the very beginning in the morning when inquest started but he neither expressed any opinion as to cause of death nor suspected any one to be culprit. He did not lodge even a complaint. On 06.05.2013, the said Ram Gopal Verma moved a written complaint to the police to the effect that Ram Gopal Saini (appellant) developed relations with his daughter Kanchan (deceased) and entered into love marriage with her about four years ago and since then they were cohabiting as husband and wife in the house of accused appellant with his mother Kama Devi (deceased). Out of their wedlock, a son was begotten namely 'Dhairya'. Accused appellant since before the marriage with Kanchan had illicit relation with wife of one Ved Prakash Gupta r/o Hanuman Garhi, kept maintained the same even after the marriage with Kanchan. In order to cherish his illicit relation and to make the same smooth and unrestrained, the appellant conspired to murder his mother, wife and son and fulfilled the same. An F.I.R. was registered on the said complaint dated 06.05.2013 and the police investigated the matter, arrested the accused appellant on 06.05.2013. Appellant had already returned on 19.04.2013 by the time of postmortem from Delhi and was present in postmortem house. It is also notable that the evidence shows the accused appellant prior to incident dated 19.04.2013 was facing a criminal prosecution on the complaint of Ram Gopal Verma with regard to alleged elopement in the year 2008, of his daughter Kanchan (deceased) on instigation of the appellant to marry with him. His daughter Kanchan had also filed a criminal writ in the High Court wherein she got stay of arrest of accused appellant. However, in the investigation of the case founded on complaint dated 06.05.2013 with regard to incident of alleged murder of Kama Devi, Kanchan and Dhairya (mother, wife and son of the appellant) on the basis of evidence of complainant and other circumstantial evidences charge sheet in the Court was submitted against the appellant. When after examining the viscera F.S.L. gave it's report, it was disclosed that a common pesticide known as Aluminum Phosphate was the cause of death of all the three victim of the incident.
5. "Ram Gopal Verma", father of the deceased wife (Kanchan) of the accused appellant by moving complaint with regard to incident dated 19.04.2013 in writing on 06.05.2013 for the first time blamed his son in law Ram Gopal Saini to have committed the murder of Smt. Kama Devi, Kanchan and Dhairya. Though the police got first information of the incident from Sunil Mali on 19.04.2013 at 06:45 A.M. moved for the spot of incident informing the area Tehsildar and started inquest and inquiries there, but did not register the F.I.R. thereupon. F.I.R. was registered on the version of complaint by Ram Gopal Verma on 06.05.2013 only. On investigation, the investigating officer arrested the accused, got recorded his confessional statement as to his guilt and on his pointing out, prepared a sitemap on 06.05.2013 indicating the places where the dead bodies of victims of incident reported on 19.04.2013 were lying on floor of the house. Purportedly on the basis of statements given by witnesses and confessional statement of the accused appellant the investigating officer submitted chargesheet against him in the concerned court of Magistrate on 31.07.2013. The Magistrate perused the chargesheet submitted in Crime Case No.61 of 2013 aforesaid under Sections 302/120B of the IPC, finding the same exclusively triable by a Court of sessions passed order of committal to the court of sessions on 30.08.2013.
2. Charge and evidences in trial
6. The Court of sessions framed the following charge against the accused on 11.07.2014.
";g fd vki vfHk;qDr us fnukad le; vKkr LFkku ogn eksgYyk g;krxat Fkkuk dksrokyh Vk.Mk tuin vEcsndj uxj esa oknh eqdnek jke xksiy oekZ dh iq=h dapu oekZ ftlls vkius o"kZ 2008 esa izse fookg fd;k Fkk] osn izdk'k dh vkSjr ls voS/k lEcU/k gksus ds dkj.k dapu oekZ (iRuh)] /kS;Z (iq=) dkek nsoh (ekWa) dh e`R;qdj gR;k dkfjr fd;kA bl izdkj vkius ,slk dk;Z fd;k gS] tks Hkk0n0l0 dh /kkjk 302 ds vUrxZr n.Muh; vijk/k gS] vkSj bl U;k;ky; ds izlaKku esa gSA"
For the easy reference the said charge as framed above is reproduced by translator in english.
"That you, the accused on date and time not known the place in Mohalla 'Hayatganj' District Ambedkar Nagar by causing death committed murder of your wife 'Kanchan' with whom in the year 2003 you entered into love marriage, of your mother Kama Devi and son Dhairya, for the reason of your illicit relations with wife of one Ved Prakash Gupta. As such you committed an offence under Section 300 of the I.P.C. which is within cognizance of this Court".
7. Since the accused did not plead guilty and claimed trial. The prosecution produced materials and witnesses in evidence against the accused shown for the purpose of easy reference in the chart appended below:-
Sl No. Name of Witness Produced in Court as Material proved by the witness Exhibit Remark
1.
Ram Gopal Verma PW-1 Complainant (father of deceased Kanchan) Complaint dated 06.05.2019 Ex. Ka 1
2. Vinay Kumar Verma PW-2 Brother of deceased Kanchan
3. Diksha Verma PW-3 Sister of deceased Kanchan
4. Dhananjay Verma PW-4 Brother of deceased Kanchan
5. Chhaya Verma PW-5 Mother of deceased Kanchan
6. Shiv Kant Pandey PW-6 Constable P.S. Tanda Kotwali then Head Moherrir FIR dated 06.05.2013 GD entry of FIR Ex. Ka 3 Ex. Ka 4
7. Sunil Kumar Mishra PW-7 the Sub Inspector posted on 19.04.2013 in P.S. Tanda Kotwali, Investigating Officer Inquest report of Dhairya Papers relating to handing over the dead body of Dhairyato constable and letter with photo of dead body of Dhairya Aforesaid papers relating to dead body of Kama Devi Aforesaid papers relating to dead body of Kanchan Seizure Memo of two metal glasses and bed sheets Ex. ka 6 Ex. Ka 7, 8, 9, 10 Ex. Ka 11, 12, 13, 14 Ex. Ka 15, 16, 17, 18 Ex. ka 18, 19, 20
8. Om Veer Singh PW-8 Posted as SHO, Tanda Kotwali on 06.05.2013 and took charge of investigation over then Site map inspected the spot of incident and prepared site map on pointing out of complaint proved.
Charge Sheet Material Exhibits bedsheets and two metal glasses Ex. Ka 21 Ex. Ka 22 Material Ex. 1, 2 and 3
9. Dr. Lal Chand PW-9 Posted as medical officer in District Hospital, District Ambedkar Nagar on 19.04.2013 Postmortem report of deceased Kama Devi.
Postmortem report of deceased Kanchan Postmortem report of Dhairya Four forensic reports of FSL Ex. Ka 23 Ex. Ka 27 Ex. Ka 31 Code No.1482 to 1485 of 2013 dated 27.11.2013
8. The prosecution witnesses PW-1 to PW-5 turned hostile during examination before the Court. The rest of the witnesses from PW-6 to PW-9 being formal police witnesses involved in doing investigation and the doctor who did atrophy on dead bodies, proved their respective documents in evidence like memos of seizure of materials collected from the spot and post mortem report respectively. The trial court after recording of evidence carved out the incriminating circumstances and facts therefrom against the accused and called him to explain those under Section 313 of the Cr.P.C. The accused submitted the incriminating evidence against him led by prosecution witnesses false due to the enmity and claimed himself absent from home (the spot of evidence) since before the date of incident, as he gone Delhi to join the feast held by his sister on the occasion of Grih Pravesh Ceremony.
3. A summary of the impugned judgment
9. The trial judge after hearing the prosecution and defence counsel in the light of evidence available on record framed three points of determination for it's decision over them, namely-
A) Whether the prosecution has been successful in proving the charge under Section 302 of the I.P.C.
B) Whether the accused is entitled to get benefit of prosecution witnesses PW-2 to PW-5 having been hostile against prosecution.
C) Whether the accused has been successful in giving satisfactory explanation of his absence from the spot of incident under Section 106 of the Indian Evidence Act, 1872.
In determining the aforesaid points as the discussion in judgment shows, the trial judge placed reliance on evidence as to the illicit relations of accused with the wife of one Ved Prakash Gupta holding the same a motive for the commission of offence by him. He further relied on the statement of PW-1 charging the accused appellant that he administered poison to his mother, wife and son for the aforesaid motive and allegedly went therefrom to his sister's house in Delhi. He also held that the matter rests on the circumstantial evidence therefore referred the judgments of Hon'ble Apex Court in Sharad Birdhchand Sarda Vs. State of Maharashtra1 and Dhan Raj @ Dhand Vs. State of Haryana2 to keep into consideration while recording finding over the questions framed by him for determination. He has held that the First Information Report Ex. Ka 1 was given in the police station on 06.05.2013 itself discloses the fact of accused having entered into love marriage with his daughter Kanchan in the year 2008. The accused had been in illicit relationship with wife of Ved Prakash Gupta since before his marriage with Kanchan (deceased) and kept maintained the same even after his marriage. For the reason of that relationship, the accused had committed murder of Kanchan his wife, Kama Devi his mother and Dhairya his son. Ram Gopal Verma aforesaid is examined as PW-1 who has proved in his examination in chief the said exhibit ka 1. The learned trial judge further took into consideration the inquest proceeding done at spot of incident wherein PW-1 himself was a witness. Another circumstance taken by him into consideration is that all the three dead bodies were found inside the house. The FSL report pursuant to the examination of viscera contents gives the finding as to the use of poison namely Aluminum Phosphate. The test of material exhibit, the two metallic glasses and bed sheet stained with vomit also gave presence of Aluminum Phosphate over them. The learned trial Judge considered all these circumstances cumulatively reached at a conclusion that all the three victims of the incident died due to administration of poison and dead bodies were found inside the residential house of the accused. He in his statement shown unawareness about death by poisoning of his family members and explained that he was not at his house at the time of incident. Under Section 106 of Evidence Act, he had to explain the reason of his absence from the house at the relevant day, date and time. But he failed to prove his absence satisfactorily. Further his absence from the house after the death of his three family members in his house is also material as his 'conduct' is relevant to the fact in issue under Section 7 and 8 of the Evidence Act, 1872. In addition to the absence of accused as a fact relevant to the fact in issue which he need to satisfactorily prove, the learned trial judge taken into consideration the illustration (c) appended with Section 7 of the Evidence Act, 1872 that the deceased being his close relative as they were mother, wife and son of the accused, he would have been well known with their nature and habit. There was sufficient opportunity for him to administer them poison for committing their murder. All the above reasons as stated by learned trial judge were taken as satisfactory to reach at an inference of guilt on the part of accused that he bearing a motive of securing his illicit relations with another woman, killed his wife Kanchan, son Dhairya and mother Kama Devi.
So far as second question for determination is concerned it relates with the evidentiary value of testimony of a hostile witness. The learned trial judge referred the relevant judgment of Hon'ble Apex Court. He stated in his finding to the effect that the hostile witnesses have proved absence of accused on spot after incident, the love marriage of accused with Kanchan (deceased) as well as the death of Kanchan, Dhairya and Kama Devi by poisoning, therefore, the fact of the witnesses turned hostile would not benefit the accused.
Likely, the third question for determination as to the appended of Section 106 Evidence Act, 1872 is decided by trial judge referring relevant judgments of Hon'ble Apex Court. It is held by trial judge that in the present case, the fact of the death of the victim in the house of accused is proved by medical evidence and the testimony of PW-1 and other prosecution witness that all the three victim died for the reason of poisoning. Under the said circumstances, the accused is burdened to furnish satisfactory explanation. But the accused though stated in his statement recorded under Section 313 Cr.P.C. as to the fact that he went to Delhi at the relevant date and time of incident could not be proved by solid evidence. As such, the failure to furnish satisfactory explanation would be sufficient to draw adverse inference of guilt against the accused. The conviction of the accused and sentence of capital punishment thus rest upon the aforesaid presumption and inferences drawn by the Court against him.
4. Rival contentions in appeal Arguments by learned counsel for appellant Sri Nagendra Mohan, Advocate
10. Learned Counsel Sri Nagendra Mohan, Advocate opened his argument assailing the judgment on the ground that in despite of the prosecution remained unsuccessful in proving it's case against the accused appellant beyond reasonable doubts, the trial judge doing misinterpretation and misconstruction of the provision of Sections 7, 8, 9 and 10 of the Indian Evidence Act, 1872 drawn adverse inference and presumption of guilt against the accused.
11. The prosecution had in express words set a motive on the part of appellant for the commission of murder of his mother, wife and son so as to keep continued smoothly his "illicit relationship" with another married woman. The prosecution could not prove the motive by direct evidence or by statement of the deceased if any, made prior to her death to any of her near relative oral/written or her complaint to that effect if made to the law enforcement officers with regard to torture or cruelty exerted upon her by the appellant in connection with alleged illicit relationship .
12. It is argued further that the entire investigation suffers from several material irregularity and defects the benefit whereof could have not been given to the prosecution. He drew attention towards material facts in the case that though the information as to the three dead bodies lying in the house of appellant has already been given to the police early in the morning at 06:45 A.M. on 19.04.2013 with complete identity and introduction of the victim by Sunil Kumar Mali, the son of accused appellant's sister, first information report was not registered thereupon. When the Cr.P.C. mandatorily requires to register F.I.R. on information disclosing a cognizable offence and does not preclude from registering FIR under the circumstance of the instant case, non registration of F.I.R. on 19.04.2013 makes a doubt as to the genuineness of the FIR registered on 06.05.2013 after a considerable lapse of time of more than fifteen days. He further drew attention towards the complainant Ram Gopal Verma of complaint dated 06.05.2013 upon which the FIR was registered that when the inquest of the dead bodies were done from 07:30 A.M. to 09:30 A.M. on spot of incident on 19.04.2013, Ram Gopal Verma was present there and he is one of the signatory as witness of the inquest proceeding but he did not complained suspicion as to the death of the victims. In the context of above, learned counsel argued that the trial court ignored as to why the complainant has not moved the complaint against appellant if the guilt on the part of accused was known to him.
13. Learned counsel submitted that prosecution has not offered to prove it's case through direct evidences and rests it solely on the circumstantial evidences. In the present case where admittedly there were 4 inmates of the house exclusively owned and possessed by the appellant where he used to reside alongwith the victims of incident dated 19.04.2013 and in his absence, rest of them were found dead, then in the given circumstances there might have been three hypothesis as to the cause of the occurrence namely 1) Suicidal death or Suicide, 2) Accidental death or 3) Homicidal death. The prosecution was therefore burdened to prove such sequence of circumstances which completely exclude the possibility of two other hypothesis namely of suicidal or accidental death of the victims trio. Further, if the prosecution rests on the hypothesis of homicidal death of the victims then to arraign therefore the appellant, the prosecution had strict burden to prove such sequence of circumstances which necessarily suggest the guilt of appellant only and no one else. In despite of that there is no such continuous chain of sequences of circumstances proved by the prosecution evidences which would have been sufficient to record conviction, learned trial judge convicted the appellant.
14. Learned counsel argued the strong possibility of false implication by the complainant for the reason of his proved enmity with the appellant. He drew attention towards the evidence of admitted fact as to the appellant's love marriage with Kanchan (deceased) against the consent and wish of the complainant. The complainant had prosecuted the appellant in that regard; whereas Kanchan (his deceased daughter) had also filed a writ petition in the High Court seeking stay and quashing of that prosecution and protection of life and liberty against her father, the present complainant. The death of three members of the family of the appellant including the complainant's daughter Kanchan given him a fresh cause to implicate him falsely.
15. Learned counsel placed reliance on the judgment of Hon'ble Apex Court in Gargi Vs. State of Haryana3 to fortify his contention as to defective investigation where the very approach of the investigating officer has been shrouded in unexplained omission and irregularities which raises doubt as to the prosecution case therefore, appellant would be entitled to benefit of doubt. He also relied on the above judgment in support as to the motive of his contention as to the unproved motive that when the prosecution was not able to prove the illicit relation of accused with another woman and no particular of such illicit relation was found in evidence on record, possibility of leveling such imputations on appellant for any malice can not be relied upon. He further argued on the point of circumstantial evidence which in the context of the crime, essentially means such facts and surrounding factors which do point towards contemporary of charged accused. Learned counsel further relied on State of Kerala Vs. Anilachandran @ Madhu & ors.4 where it is held that when the accused take in defence plea of alibi, but the same is discarded, does not take away the duty of prosecution to prove it's case beyond all reasonable doubt. Learned counsel further relied on Jose @ Pappachan Vs. Sub Inspector of Police Koyilandy & Another5 on the point of burden over a person of proving fact especially within his knowledge under Section 106 of the Evidence Act, 1872. In the aforesaid matter, the accused was subjected to murder trial with allegation, wife was first strangulated to death by him and then hanged in his house. Held it is impossible to cast any burden upon the accused husband under Section 106 Evidence Act, 1872 in absence of any persuasive evidence to hold that at the relevant time, accused was present in his house.
16. The learned counsel assailed the judgment of conviction and order of sentence that none of the objections raised before the trial judge are considered and conviction is solely based by him upon presumption and adverse inferences without considering that the prosecution even had not discharged it's primary burden of proving the circumstances whereupon such presumption could be raised or adverse enforce could be drawn against the accused. Therefore, the impugned judgment of conviction is liable to be rendered non sustainable and consequently be set aside and appeal be allowed with acquittal of the appellant.
5. Arguments by learned Government Advocate Sri Vimal Prakash, Advocate.
17. Learned G.A. in the context of the fact of death of three inmates out of four in a dwelling house, where the fourth one (appellant) claims himself not present there at the relevant date and time of the occurrence, argued that such deaths might have been caused either by accident or suicide and if the first two possibilities are ruled out then certainly it is homicide. He contended that the prosecution case is neither of suicide nor of accident, even the appellant have not claimed the deaths of victim accidental or suicidal. He emphasized that the circumstances proved by evidences during trial have not set an alternative theory of suicidal death; therefore the occurrence rests on theory of homicidal death caused by the appellant pursuant to a specific motive.
18. He further contended towards the proved circumstances.
a) Kanchan (deceased) by virtue of her love marriage with accused appellant in 2008 was, since then, in marital cohabitation with the appellant in his house (spot of incidence) where his mother Kama Devi (deceased) also ordinarily used to reside.
b) During wedlock Kanchan (deceased) and appellant, she begotten a male child who was named 'Dhairya'. The son was approximately 4 years in age, at the relevant date and time of incident.
c) No one else was sharing the dwelling house with accused appellant, Kanchan (deceased wife), Kama Devi (deceased mother) and Dhairya (deceased son).
d) In the intervening night of 18/19 April, 2013, the three inmates of the house namely Kama Devi, Kanchan and Dhairya died in the house. The dead bodies were lying here and there on the floor of the house in perplexed state.
e) The report of Forensic Science Laboratory given on examination of 'Viscera' extracted from the dead bodies and the metallic glasses, vomits on bedsheet etc. confirmed the administration of poison "Aluminum Phosphate" as cause of death.
Learned G.A. submitted further that aforesaid are the proved circumstances wherein the accused appellant shall be presumed being fourth inmate of the house who have been in position to know very well the habits and nature of victims as well as to have full opportunity so as to administer poison to them to commit their murder.
19. Learned G.A. argued that the evidence of PW-1 is sufficient to establish motive, a persuasive factor for the commission of murder of the victims by poisoning, that is illicit relationship between accused appellant and the wife of Ved Prakash Gupta, continuing since before the appellant's marriage with Kanchan (deceased wife).
20. Learned G.A. further argued that it is the admitted and proved fact that accused appellant was not present on spot of incident at the time of inquest proceeding, which establishes his conduct subsequent to his committing the offence. He contended that accused appellant was present at the postmortem house on the same day whereas he was alleged to have gone Delhi since the day before the occurrence was reported to police (19.04.2013). The learned G.A. termed this conduct on the part of accused appellant, his 'absconding' from the seen of offence.
21. The learned G.A. lastly submitted that no doubt the prosecution has strict burden of proving it's case beyond reasonable doubt but when the prosecution has reasonably discharged it's duty to the extent the same could be done by leading evidence to prove the facts and surrounding circumstances, but for the facts especially and particularly within the knowledge of the accused himself then the burden to speak for such fact lies heavily upon him. In this context, learned G.A. argued that the accused appellant being fourth member of the dwelling house where he ordinarily used to reside with the rest of the three inmates (deceased), had offered a defence to the incriminating circumstances against him, explaining his absence from the spot of incident at relevant time that he went to Delhi on day before the incident. The failure to prove the above defence, learned G.A. argued, will amount the missing link in the chain of sequence of circumstances against him. He lastly submitted that the learned trial judge did not commit any error in recording conviction and awarded proper and adequate sentence accordingly.
22. The learned G.A. concluded his arguments referring cases decided by the Apex Court relevant on various legal aspects and issues likely to arise in a murder trial solely based on circumstantial evidences. A short account of case law relied on by him would be relevant to be stated. He relied on Kalu @ Laxminarayan Vs. State of M.P.6 where a married lady met with her homicidal death in matrimonial home. The manner in which she met her homicidal death was a fact especially and exclusively within the knowledge of appellant husband of the deceased. It is held that once prosecution established a prima facie case, appellant was obliged to furnish some explanation under Section 313 Cr.P.C. with regard to the circumstances under which deceased met an unnatural death inside the house. His failure to offer any explanation leaves no doubt for the conclusion of his being the culprit of the offence. The decision on the issue with regard to burden under Section 106, Evidence Act, 1872 in such circumstances, given by Hon'ble Apex Court in Trimukh Maroti Kirkan Vs. State of Maharashtra7 was relied on. It is held in the above case that there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The decision of Apex Court reported in Mulakh Raj etc. Vs. Satish Kumar and others8 was relied on where with regard to importance of motive in cases based on circumstantial evidence and effect on failure to prove the same, it is held, proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. On the issue of non submission of explanation by the accused with his statement under Section 313 Cr.P.C. was being recorded the impact thereof over the defence of accused. Learned G.A. relied on Phula Singh Vs. State of Himachal Pradesh9, where it is held that if the accused had kept silence over the incriminating circumstances against him or remain in complete denial mode, rather to give any explanation thereto, the Court would be entitled to draw an inference against the accused as may be permissible in accordance with law. Learned G.A. relied on the decision in Jai Narain and others Vs. State of Uttar Pradesh10, where it is held when a witness gave each and every detail of occurrence in his examination in chief but thereafter he turned hostile and stated in favour of accused, the entire evidence of the such witness cannot be discarded and doubted under the given circumstances. Learned G.A. relied on Vijay Pal Vs. State (Government of NCT of Delhi11 and Mukesh and another Vs. State (NCT of Delhi) & others12 where it is held, law is well settled that if such a plea of alibi is taken in defence by the accused, the burden is upon him to establish the same by positive evidence, so as to raise a reasonable doubt regarding the prosecution version.
23. After giving a careful and cautious hearing to the rival arguments raised by learned counsels for the parties and on perusal of the record, we framed the following questions for our determination;
(I) Whether investigation of the case is defective?
(II) Whether the charge against appellant is wrong and illegal for murder of his mother, wife and son, for the reason the same is framed without any evidence on record?
(III) Whether the prosecution failed to produce the 'best evidence' so as to prove it's case and without any justification has withheld the material witness, deliberately?
(IV) Whether the trial court mis read the evidence, even omitted to read evidence on record, did not appreciate the evidence on record in right perspective and passed the impugned judgment which is not sustainable in the eyes of Law?
24. The case in hand, as noted by us, rests solely on circumstantial evidence as there is no direct evidence as to the commission of the offence by the appellant. After hearing the learned counsels and having a careful scrutiny and perusal of materials and evidences available on the record of trial court, we now proceed to discuss the circumstances, whether proved in such a manner are exclusively pointing towards the guilt of the accused and nothing else. Since the conviction in the present case is not only based on circumstantial evidence but also entailed the failure on the part of accused to discharge his burden to prove fact especially within his knowledge, consequent thereupon the adverse inference is drawn as to his guilt under Section 106 Evidence Act, 1872, therefore we have to see whether Section 106 Evidence Act, 1872 has been correctly applied in the fact and circumstances of the case.
6. Conspectus of circumstances
25. The conspectus of the events as noted by us from the evidence and materials on record of trial court is that accused appellant and Kanchan (deceased) entered into love marriage in the year 2008 against the wish of complainant Ram Gopal Verma (father of deceased Kanchan). Since 2008, Kanchan (deceased) was in marital cohabitation with accused appellant in his dwelling house alongwith his mother Kama Devi (deceased). Out of their wedlock, a son named 'Dhairya' was begotten. The accused appellant, his wife (Kanchan), their son Dhairya and appellant's mother Kama Devi were the inmates of the dwelling house ordinarily residing therein. On 19.04.2013, one Sunil Kumar Mali (son of appellant's sister) at 06:45 A.M. informed the local police station that the dead bodies of appellant's mother (Kama Devi), wife (Kanchan) and son Dhairya are lying on the floor of the house, whereas appellant had gone Delhi on the day before the reporting of the incident. Inquest was done by the police without registering an F.I.R. of the incident. The dead bodies had no exterior mark of any injury. Though foam was coming out from the mouth of the dead bodies, then also the witnesses of inquest including the complainant Ram Gopal Verma could not form any opinion as to the apparent cause of death, therefore, dead bodies were sent for autopsy to postmortem house. In postmortem house the vicera was extracted and sent for examination in Forensic Science Laboratory. The report of forensic expert dated 27.11.2013 confirmed the use and application of pesticide named Aluminum Phosphide (ALP) as cause of death. The postmortem was done on the same date 19.04.2013 in the afternoon 03:00 P.M., when the appellant also was present. On 19.04.2013, the complainant Ram Gopal Verma had not raised any suspicion with regard to the death of victims or any person as the possible culprit. However, on 06.05.2013, complainant moved the complaint in writing that murder of all the three victims was committed by the appellant (his son in law) so as to continue with his premarriage illicit relationship with another married woman even after marriage with Kanchan without any obstruction and after commission of the murder, he masqueraded himself to have gone Delhi. On the complaint to above effect, the local police with inordinate and unexplained delay since the date of first information of occurrence (19.04.2013) registered an FIR on 06.05.2013 and started to investigate. Investigation culminated into chargesheet arraigning the appellant on the basis of circumstances, particularly the unproven absence of the appellant from the house at the relevant date and time of incident. The complainant and his family members though examined in court but they turned hostile. On the terms similar to that of the complaint and the chargesheet, by impugned judgment, the trial judge has recorded conviction based on circumstantial evidence.
26. Obviously the incident is of death of three persons by poisoning in their dwelling house where they ordinarily used to reside with the appellant. Appellant was allegedly absent from the house when the incident occurred. There would have been three possibility wherein the occurrence of their death would have taken place, namely accident, suicide or if earlier two possibilities have not taken place, then homicide. Since there is no eye witness of the incident therefore in absence of direct evidences, the existence of any of the three possibilities to the entire exclusion of rest of the two was to be gathered from evidence of the surrounding facts and circumstances by the investigating agency.
27. If it is proved that the three deceased died in an unnatural circumstance in the house which they were sharing with the appellant then and if the prosecution had proved that the deceased last seen with the accused in their house, the law requires him to offer an explanation in this behalf. However, Hon'ble the Supreme Court in Swamy Shraddananda @ Murli Manohar Mishra Vs. State of Karnataka13 held,
34. If it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.
35. We may, however, notice that recently in Raj Kumar Prasad Tamarkar v. State of Bihar [(2007) 10 SCC 433 : (2007) 3 SCC (Cri) 716 : (2007) 1 Scale 19 : JT (2007) 1 SC 239] this Court opined: (SCC pp. 440-41, paras 23-25) "23. ... Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.
24. This legal position would appear from a decision of this Court in Nika Ram v. State of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC 2077] wherein it was held: (SCC p. 87, para 16) ''16. It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram, school teacher (PW 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room, one other small room and a verandah. The correctness of that plan is proved by A.R. Verma, overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.'
25. In Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80 : JT (2006) 9 SC 50] the law is stated in the following terms: (SCC p. 694, para 22) ''22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.' "
28. In the case before us also the appellant has not given any explanation as to the occurrence of death of rest of three members of his family who ordinarily used to reside with him in the dwelling house in an unnatural circumstance, by administration of poison, but this alone can not conclusively rope him with the offence of murder unless the prosecution has discharged it's primary burden of proving the complicity of the accused in causing the death of the deceased (mother, wife and son) intentionally in the manner which bring his act in the category of culpable homicide amounting to murder under Section 300 of the Indian Penal Code, 1860.
29. In the aforesaid context, we think, it would be relevant and of much essence to weigh, evaluate and appreciate the proceeding of the case in hand right from the investigation upto that of trial, so as to find out what facts and circumstances were well within the reach of the prosecution and required to be proved to form a complete chain of sequences suggesting the guilt of the accused and nothing else. We therefore discuss categorically the facts and circumstances in evidence under following heads.
7. Deficiency, omissions and lapses on the investigation
30. Our Constitution (The Constitution of India) provides one of the constitutional guarantee under Article 21, "fundamental right to life and liberty". In a plethora of decisions of Hon'ble the Apex Court and our High Court's, Article 21 has been interpreted with widest amplitude so as to include the right of fair trial. Right to fair trial necessarily includes right to fair investigation. In Jahira Habibulla H. Sheikh and another Vs. State of Gujarat & others14 (Best Bakery Case), Hon'ble the Supreme Court has held, trial should be fair to all concerned and "denial of fair trial is as much an injustice to accused as is to the victim and the society".
31. Under the scheme of "Criminal Procedure Code, 1973", every information disclosing a cognizable offence, if given orally or in writing to an officer in charge of a police station under Section 154 of the Code, shall be reduced into writing and entered into a book kept for this purpose in every police station named as General Diary (GD or Rojnamaha). Entering the first information is igniting the key of machinery of criminal administration. The importance of earlier version of the information as to the occurrence of a cognizable offence, can not be lost sight of, and in criminal trial the earliest version of information has it's own importance for just decision in trial. It is admitted in evidence of PW-6 in the present case that earliest version of information as to the incident was received in the police station from Sunil Kumar Mali, the near relative of appellant and victims of the incident. The information though entered in G.D. by PW-6 on 19.04.2013 itself. The G.D. was not placed before trial court to show the version of the informant as to the incident. The non production of G.D. No.6 on 19.04.2013 is not satisfactorily explained by any of the concerned police officer namely PW-6, PW-7 or PW-8. The non explanation, thus amounts concealment of the earliest version of the incident on 19.04.2013, shall be considered further while deciding the role of accused in alleged commission of offence by him.
32. Information treated as FIR and steps taken by the police pursuant to such information would amount to investigation. Investigation includes inquiry as to the occurrence, the surrounding circumstance and facts with regard to it. In the present case, it is evident from the statement of PWs 7 and 8, the officers of the local Police Station, Tanda Kotwali that Sunil Kumar Mali S/o Bhim Singh has given the information as to the incident on 19.04.2013 at 6:45 A.M. in pursuance of which they reached at the spot promptly at 7:30 A.M. to make necessary inquiries which formed part of investigation into the matter of the triple deaths. Exhibits Ka-2, Ka-5 and Ka-6, the inquest report of the three dead bodies lying at the place of incident have entry of the chronological details of receiving information of occurrence, the informant, when reached on spot and proceeding of enquiry and inquest when started and finished. The PW-1, the complainant of first information report dated 06.05.2013 with regard to the same incident dated 19.04.2013 has himself stated on oath before the trial judge in his cross examination by defence counsel on 03.12.2014 that earlier to the lodging of FIR by him the son of the sister of accused Ram Gopal Saini, namely Sunil Kumar Mali S/o Bhim Kumar Mali had given the information of incident in the Police Station, Tanda Kotwali. He further affirmed to the cross-examiner that Sunil Kumar Mali had given the information of the incident on 19.04.2013 at 6:45 A.M. PW-6-Shivakant Pandey, the then Head Moharrir posted at P.S. Tanda Kotwali, who registered the FIR on 06.05.2013 on the complaint submitted on 06.05.2013 with regard to incident dated 19.04.2013 also in his cross examination before the trial judge on 19.04.2016 stated about the earlier version of information by Sunil Kumar Mali on 19.04.2013. He stated, 'earlier to the complaint moved by Ram Gopal Verma, an application as to the information of the incident was given by Sunil Kumar Mali at 6:45 A.M. on 19.04.2013, which he entered in G.D. at entry no.6, but did not registered any crime case on the basis of that information. However, PW-6 admitted while cross-examined in same continuation, though it is true, the incident is of 19.04.2013 but the First Information Report is lodged on 06.05.2013 with extra ordinary delay. PW-7, the investigating officer who did inquiry and inquest proceeding on spot of incident on 19.04.2013 pursuant to the information of incident as Sub-Inspector in his cross-examination before the trial judge, also has accepted that the earliest information of the incident was given in the police station, Tanda Koteali by Sunil Kumar Mali on 19.04.2013 at 6:45 A.M. The fact of receiving earliest information of the incident in the police station on 19.04.2013 further finds confirmation in the evidence of PW-8, Omvir Singh, the subsequent investigating officer and then SHO of Police Station, Tanda Kotwali, in his cross-examination dated 30.08.2016. Despite of the fact, Sunil Kumar Saini has given the information of incident at earliest available opportunities to the police on 19.04.2013 at 06:45 A.M., it is noticeably surprising why first information report on the basis of that information was not registered. It is also notable here that the PW-6 had entered the said information given by Sunil Kumar Mali on 19.04.2013 at 6:45 A.M. at serial no.6 in the G.D. kept and maintained in the Police Station for the purpose of Section 154 Cr.P.C. Sunil Kumar Mali is near relative of appellant, the version as to the incident in the information given to the police at earliest could not be lost sight. But the statement of PW-6, PW-7 and PW-8 have no explanation to such ignorance or omission in registering First Information Report and lodging a criminal case accordingly casts a doubt over the investigation and it's intent.
33. Indisputably, the information given by Sunil Kumar Saini on 19.04.2013 at 6:45 A.M. in local police station was as to three dead bodies lying on the floor of the house of his maternal uncle, (the appellant) respectively of his mother, wife and son in his absence was suggestive of the commission of cognizable offence. It comes out from evidence of PWs 6, 7 and 8 respectively the Head Muharrir and the Sub Inspector in charge and the Station Head Officer all were available in the police station, then also on receiving the information, they proceed for investigation without registering the FIR.
34. The non registration of FIR on 19.04.2013 is not explained reasonably. Rather an absurd explanation is seen in the statement of PW-6 recorded by trial judge on 19.04.2016, that the FIR was not registered because of uncertainty as to offence. It is established by law that police can not sit over information on the pretext of credibility or reliability of the informant or the same being not satisfactory or workable. The police in the present case also was under a statutory duty and mandatorily required under Section 154 (1) of the Criminal Procedure Code, to register FIR without considering the genuineness or otherwise of the information. In this regard, it would be relevant to refer the judgment of Hon'ble Apex Court in Ramesh Kumari Vs. State (NCT of Delhi) & other15. The relevant extracts from para 3 of which is being quoted hereunder:-
3. "............ We are not convinced by this submission because the sole grievance of the appellant is that no case has been registered in terms of the mandatory provisions of Section 154(1) of the Criminal Procedure Code. Genuineness or otherwise of the information can only be considered after registration of the case. Genuineness or credibility of the information is not a condition precedent for registration of a case."
4. That a police officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under: (SCC pp. 354-55) "31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ''information' without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ''reasonable complaint' and ''credible information' are used. Evidently, the non-qualification of the word ''information' in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ''reasonableness' or ''credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ''information' without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ''every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ''every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word ''complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ''information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence."
(emphasis in original) Finally, this Court in para 33 said: (SCC p. 355) "33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."
35. The views expressed by Hon'ble the Apex Court as quoted above thus leave no doubt that in the present case the police officer concerned (PWs 6, 7, and 8) though were mandatorily required bound to register the FIR on the information received on 19.04.2013 from Sunil Kumar Mali, did not register the same for reasons best known to them. The omission on the part of the investigator remains unsatisfactorily explained shall have a bearing on the prosecution case while it's genuineness will be considered further by us.
36. In the context of deliberate omission in registration of FIR by the concerned police officers on the information of incident in question on 19.04.2013 by Sunil Kumar Mali, we have noticed the facts coming out from the evidence on record which are as follows:-
36 (I). The police without registering FIR proceeded with investigation of the contents of that information and reached on the spot. Where the first investigating officer PW-7 started inquiry as to the surrounding facts and circumstances including the inquest of the dead body lying on the floor of the house. During the investigation on inquest of dead bodies on 19.04.2013 the first informant Sunil Kumar Saini and Ram Gopal Verma, both were present, they participated in the inquest proceeding, witnessed the same and are also became signatory of the concerned documents of inquest prepared on spot. Further Ram Gopal Verma had also been signatory as witness on the seizure memo prepared on seizing the material exhibits on spot namely the bed sheet stained with vomiting and two metallic glasses from the spot. Ram Gopal Verma was also witness of the facts observed during inquest that the mouth of dead bodies were foaming and dead bodies were lying perturbed and perplexed physical state on floor, but he did not expressed any suspicion as to their death to the investigating officer. PW-7, the investigating officer in inquest has stated all these facts in his examination-in-chief recorded in the trial court on 26.05.2016. In cross-examination on 19.08.2016, he replied to cross-examiner learned counsel for the defence that though the Ram Gopal Verma was present during inquest and inquiry on spot of incident on 19.04.2013 but he did not complained any thing against appellant. In the same continuation he also admitted the receiving of information from Sunil Mali as the earliest information of the incident on 19.04.2013 and the complaint of incident dated 19.04.2013 by Ram Gopal Verma on 06.05.2013 Crime Case No. 01/2013 was U/s 302/120-B I.P.C. and an First Information Report was also registered by him. We are constrained to infer the fact on the basis of evidence given by the prosecution itself that the Police Officers concerned (PW-6, 7 and 8) deliberately omitted to register FIR on the basis of earliest version of information received on 19.04.2013 in utter disregard of and in violation of mandatory duty as envisaged under Section 154 (1) Cr.P.C. They illegally waited for the version of Ram Gopal Verma as to the incident till 6.5.2013.
36 (II). We further noticed from the evidence of PW-8 on record that when on the information received from Sunil Kumar Mali the concerned police did not registered the FIR, the appellant moved an application before the Magistrate having jurisdiction invoking the provision of Section 156 (3) of the Code of Criminal Procedure. PW-8, Omveer Singh, the then Station Head Officer of Police Station, Tanda Kotwali, in his cross-examination on 30.08.2016 on the one hand admitted the earliest information as to the incident was given by Sunil Kumar Mali on 19.04.2013 and that said Sunil Kumar Mali was nephew (sister's son) of the appellant, in continuation, he expressed his inability for want of official papers maintained in Police Station before him to tell the cross-examiner whether the appellant moved any application to register FIR of the incident before Superintendent of Police. However, he further admits that a report was sent to the concerned Magistrate with regard to appellant's application under Section 156 (3) Cr.P.C. The aforesaid fact has came into evidence through deposition before trial judge by a competent police officer statutorily empowered to register FIR on information disclosing a cognizable offence, therefore, the same is noted by us as lapse and illegal omission on the part of officer incharge of the Police Station.
37. It is admitted by concerned police officer PW-6, PW-7 and PW-8 respectively the Head Moharrir, Sub Inspector of Police and Station Head Officer in-charge of the Police Station Tanda Kotwali in their deposition before the trial court that they did not register FIR on the basis of information received by them from Sunil Kumar Mali. It is also admitted by them in their depositions in court that FIR was registered on 06.05.2013 belatedly on the basis of complaint when moved by Ram Gopal Verma on 06.05.2013 at 7:30 A.M. In the context of aforesaid facts proved by the evidence we observed that the case before us is not only of a belated or delayed registration of FIR but also peculiarly enough is a case of transposing another person in place of original informant and replacing the version of earlier information as to the incident of triple murder dated 19.4.2013. In other words, the concerned police officer registered the FIR of the incident only when the person of their own choice moved the complaint on 06.05.2013 namely Ram Gopal Verma, father of the deceased wife of the appellant who had nothing to state as to apparent cause of death at the time of inquest on 19.04.2013.
38. FIR of the incident dated 19.04.2013 was lodged on 06.05.2013 on the complaint of Ram Gopal Verma is not satisfactorily explained by the concerned Police officers, PW-6, 7 and 8 before the court in their evidence. Moreover, though they have not explained the delay since 19.04.2013, but we ourselves take a situation in contemplation that the investigator was doing preliminary inquiry into unnatural death, then also if the report after inquiry and inquest under Section 174 Cr.P.C. submitted to the executive Magistrate having territorial jurisdiction and nothing was reported by them so as not to proceed further, as the record is lacking any such report. In the absence of any such report, what prevented them from proceeding ahead with investigation so as to disclose facts suggesting the cause of death or facts and circumstances leading to the suspicious death and suspected culprit is not evident from record.
39. It would thus appear that there is no reasonable explanation forthcoming from the prosecution explaining (i) why on the earliest version of information an FIR was not registered despite disclosure of the commission of some cognizable offence and (ii) registering FIR of the same incident after 17 days on the complaint of Ram Gopal Verma while no further facts and circumstance were discovered after inquest and postmortem by the investigating officer. The evidence is equally unconvincing as the occurrence is of intervening period of 18/19.04.2013, why after a considerable lapse of time on the complainant's version of the same incident, FIR was lodged by the Police. In addition to above it would be relevant to consider the following fact coming from evidence of PW-1 (complainant) himself. The complainant is father of the deceased wife of the appellant against whose wish his daughter entered into marriage with the appellant about five years ago. The complainant had also prosecuted the appellant, his mother (deceased in the incident) and sister for the offence under Section 363/366 and 342 IPC. On the instance of daughter (deceased) in a writ petition filed against her father (the complainant) the proceeding of criminal prosecution was stayed against the appellant and his mother (deceased) etc. In the context of above proven fact the delay in registering FIR and it's adverse effect on the prosecution case is to be considered as Hon'ble the Supreme Court has held in the case of Ram Das & Ors. Vs. State of Maharashtra16, para-24 of the judgment cited hereunder:-
24. Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence......
........... In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts. It is settled law that however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. (See Pandurang v. State of Hyderabad [(1955) 1 SCR 1083 : AIR 1955 SC 216] .) Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.
40. We thus hold that the unexplained delay in registering the FIR in context of the facts which came forth from evidence on record as pointed above by us will adversely effects the case of prosecution and cast a doubt upon it as to some collusion.
8. Delayed recording of Pre-trial statement of witness by the Investigating Officer.
41. After inquiry and inquest of the dead body on spot on 19.4.2013, the first investigating officer, PW-6 did nothing. However, the purpose of inquest was over to assess and ascertain the deaths whether suicidal, accidental or suspected to be homicidal by collecting fact and circumstances from the spot and inquiry of dead bodies. The dead bodies were found in the perplexed and distressed physical condition with foaming mouth lying on floor on different places in the house. The inquest reports Exhibits Ka-2, Ka-5 and Ka-6 proved by PW-7 in the trial court themselves show the aforesaid physical condition of the dead bodies. The informant Sunil Kumar Mali of information dated 19.04.2013 and Ram Gopal Verma the complainant of FIR dated 06.05.2013 both are witness of inquest but the opinion of witnesses of inquest, including the two above named as to the apparent cause of death, was entered in the report as 'not clear'. It is important to note here that the aforesaid Ram Gopal Verma on 06.05.2013 at 7:30 A.M. lodged the complaint in the Police Station with the same police officers (PW-6, 7 and 8) alleging the murder of the victims of the incident committed by the appellant. PW-8, the investigating officer after registering the FIR on his complaint did not recorded his statement under Section 161 Cr.P.C. to the effect that what are the source of his knowledge as to the fact of murder through poison by the appellant which was not known to him at the time of inquest on 19.04.2013.
42. In the context of above facts proved by evidence on record the question is why not instantly on or after 19.04.2013 when the inquest was done the surrounding circumstances and facts as to the incident of triple death and apparent cause of their death were not gathered by the investigating officer with all reasonable and practicably possible promptness. They did not take statements of neighbouring people, informant Sunil Kumar Mali and Ram Gopal Verma. Even the site map was not sketched to show the entrance and exit in house locating spots where the dead bodies of three victims were lying on the floor instantly which was of utmost importance for the purpose of investigation to reach up to the culprit. No last seen evidence of any person with the deceased in their house was gathered. Even the relation of victims inter-se as well as with other persons of locality and also with the appellant and any other member of the family was gathered. Character of accused and his relation with wife (deceased) was also material but that too was not gathered promptly so as to avoid any future embellishment, undue improvement or exaggeration of related facts.
43. It was only when the Ram Gopal Verma lodged a complaint Ex. Ka-1 arraigning the appellant for the murder of his mother, wife and son setting therefor a specific motive, the illicit relation of appellant with another married women, was moved on 06.05.2013, the PW-8 (SHO) took over the investigation himself. Meanwhile since 19.04.2013 upto 06.05.2013 PW-8 or PW-7 did nothing to discover necessary facts. Thus, they given a specific direction to the investigation.
44. PW-8 in his statement before the Court while examined in chief stated on 30.08.2016 that he took over the investigation of Crime Case No.61/2013 under Section 302/120B IPC on 06.05.2013. He further stated that the statement of complainant Ram Gopal Verma was taken by him on 06.05.2013. At this juncture, it is important that the incident occurred on 19.04.2013. PW-8 further stated that he made inspection of the spot of incident on pointing out of the complainant on 06.05.2013 and recorded his statement under Section 161 Cr.P.C. It is remarkable that incident was occurred on 19.04.2013 information of which was noted by PW-6 in G.D. of Police Station on the same day at 06:45 A.M. PW-7 went on spot for inquiry under Section 174 Cr.P.C. on the same day, completed the proceeding of inquest of dead bodies. Throughout the inquiry and inquest proceeding, Ram Gopal Verma (the complainant) was on spot but his statement was not recorded by the police. Site map was also not sketched to show the state of things on spot. Even the statement of Sunil Kumar Mali, the first informant of the incident was not recorded instantly who was present there. PW-8 did all the above function after registering the FIR of the incident on 06.05.2013 with extraordinary delay. The delay both in registering FIR and taking the statement of concerned witnesses are not explained by PW-8 in his examination. He admitted in his cross-examination that he took statements of PW-2 to PW-5, the family members of complainant Ram Gopal Verma, posing them as witness on spot of incident with a considerable delay of more than 17 days from the date of incident 18/19.04.2013 on 07.05.2013 and 18.05.2013. He further stated about recording of statements of other witnesses under Section 161 Cr.P.C. on 06.07.2013 and 31.07.2013. Except PW-1 to PW-5, no other witnesses of facts or circumstances are produced before the Court for examination. Delay in recording statements casts a serious doubt about their being witnesses on spot or witnesses of circumstances. It leads to inference that the Investigating Officer was deliberately marking time with a view to decide about shape to be given to the case and witnesses to be introduced. The extraordinary delay in recording statement of witnesses of circumstances around the incident are sufficient to cause embellishment exaggeration and improvement in prosecution case, casting a serious doubt as to it's genuinity.
45. In the aforementioned facts coming forth from evidence of PW-8 on record, it would be relevant to give reference of decision of Hon'ble Apex Court in Ganesh Bhavan Patel Vs. State of Maharashtra17 where in para 15 it is held (relevant extract is quoted hereunder):-
15. "............Delay of a few hour is simplicity in recording the statement of eye witnesses may not, be itself, amount to serious infirmity in the prosecution case. But it may assume such a character if these are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced."
46. In the instant case also, there exists circumstances in plurality which lead such significance to the delay in not registering the FIR of incident dated 19.04.2013 before 06.05.2013, unless the complainant of complaint dated 06.05.2013 is transposed in place of first informant of incident dated 19.04.2013 and in not recording of statements of witnesses instantly on 19.04.2013 or after a reasonable pause of time and in totality are sufficient to hold the investigation defective. Thus, the first point of determination is answered by us.
9. How the appellant is arraigned in the matter of murder of his own mother, wife and son by administering them poison
47. We noticed three proven facts coming forth from the evidence on record particularly the evidence of PW-1 (the complainant Ram Gopal Verma), PW-6, 7 and 8 which show that it is not the facts discovered through investigation after 19.04.2013 when the incident in question was informed to the local police station and reduced into writing in General Diary, as none of the witnesses of fact circumstances and surrounding factor as to the cause of occurrence was examined before 06.05.2013. They are as under :-
48 (i) The Ram Gopal Verma is the person who on 06.05.2013 reported to the PW-6 through a complaint Ex. Ka 1 the complicity of appellant in the incident. He implicated the appellant to have committed murder of his own mother, wife and son, because he had pre-marriage illicit relation with another married woman (to whom he named in the complaint) in which he was continuing even after the marriage with deceased (Kanchan) and wanted to keep the same unobstructed. PW-6 admits in his deposition before the Court, the complaint was made basis of first information report by him that lead the investigation of offence alleged to have been committed by the appellant.
48 (ii) PW-8 with registration of the FIR took instantly the investigation on 06.05.2013 in his charge and taken the statement of the complainant on the same day. PW-6 stated in his examination that on 06.05.2013 at 10:00 PM in night, the appellant was arrested. PW-8 himself in his examination-in-chief stated that he took statement of two witnesses of hearsay evidence and evidence of complainant's wife Chhaya Verma and daughter Deeksha Verma (PW-5 and PW-3) as the witnesses of spot of incident and on their evidence got in investigation, he made arrest of the accused Ram Gopal Saini in the night at 10:00 P.M. 48 (iii) PW-8 in his statement in chief has further stated that he extracted confession from accused in custody that he committed murder of his wife, son and mother by administering them poison. Lastly, pursuant to the confession, it comes out from his statement in chief, he taken statement of some other witnesses and on the basis of those statements and site map prepared by him on 06.05.2013 only, he submitted the charge sheet against the accused/appellant on 31.07.2013 before the concerned Magistrate.
49. The appellant "Ram Gopal Saini" after the incident was present at the time of post mortem at 03:00 P.M. in the post mortem house on 19.04.2013, it is admitted by PW-1 (complainant) and the concerned police officers (PW-6, PW-7 and PW-8). He was pursuing the action on the information regarding the suspicious death of his mother, wife and son right from 19.04.2013 by adopting the course under Section 154 (3) and 156 (3) Cr.P.C., (as it comes out from the cross-examination of PW-8). Thirdly, the report from Forensic Science Lab could not be received to the police as to the use of poison in causing the death of the victims died in the incident before 22.11.2013. The question arises in the context of above stated facts which came forth on evidence of prosecution itself that how Ram Gopal Verma (PW-1) who did not disclosed any such fact as to the use of poison and also as to the culprit on 19.04.2013, suddenly came to know personally about the application of poison in causing death and that too, by the appellant. Neither in the statement of PW-1 (complainant) nor in the statement of PW-8 (investigator) the specific name of person as source of information who witnessed the above facts is disclosed. For want of any such disclosure in the evidence of both the prosecution witnesses the statements as to the use of poison by the appellant is simply a speculation and the alleged confession by the appellant as to the guilt which have been extracted in Police custody by the PW-8. The PW-8 thus appeared to have culminated the investigation into charge sheet under Sections 302/120B I.P.C. only on the basis of hearsay and speculation. Such a serious lapse and omissions in submitting charge sheet against the appellant also cast a serious doubt as to the investigative intent.
50. The legal position as to what should be the contents of charge sheet or final report under Section 173 (2) or 173 (8) of the Criminal Procedure Code, 1973 has been expounded by the Apex Court in the case of K. Veeraswami Vs. Union of India and others18. It would be relevant to refer hereunder para 76 of the said judgment:-
76. "The charge-sheet is nothing but a final report of police officer under Section 173(2) of the CrPC. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar [(1980) 3 SCC 152, 157 : 1980 SCC (Cri) 660] that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the Investigating Officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence."
51. Thus the charge sheet under Section 173 (2) is an opinion of the Investigating Officer intimated to the Magistrate, so as to apprise him of the fact that investigation into a cognizable offence have been under taken, further that by investigation 'sufficient materials' has been procured for the trial of the named accused. Beside this, the investigating officer intimates that the evidence stated in the chargesheet are sufficient to take cognizance of the offence by the Court. But peculiarly enough, in the instant case, Investigating Officer in his evidence or PW-8, admits to submit charge sheet against the appellant on the basis of evidence collected by him through investigation but in his cross-examination states that the witnesses in the case are only the complainant Ram Gopal Verma, his wife, sons and daughter and none else. He further replied on the query made to him by cross-examiner, no direct evidence of the incident was available and even the circumstantial evidences too were not sufficient to submit charge sheet against the accused. The above fact renders the chargesheet illegal, in view of the judgment of Hon'ble Apex Court in K. Veeraswami Vs. Union of India (Supra).
52. The trial judge has not taken into consideration the facts noted by us as discussed hereinabove, evincing the defective investigation and illegality of chargesheet in considering the strength of prosecution case, especially in a case like the instant one, which absolutely depends on circumstantial evidence. Thus, we answered the second point of determination in appeal framed by us.
10. "Ram Gopal Verma the Complainant"
53. We, when traversed through evidence, noted several facts about Ram Gopal Verma, the complainant of the case which make him interestingly a man of enigmatic personality and mysterious in his actions. He is the propagator and helmsman of the prosecution case and is also examined as PW-1 in the trial. From his statement recorded by the trial judge during examination-in-chief on 05.11.2014 and that recorded in cross-examination on 05.12.2014 it comes out that (Ram Gopal Verma) a grocery shop owner and resident of same locality namely 'Hayatganj', P.S. Tanda Kotwali in District Ambedkar Nagar in which the house of appellant Ram Gopal Saini situated, where the incident in question occurred on 18/19.04.2013. The distance between the two houses (of appellant and the complainant) was approximately 800 to 1000 meters. The daughter of the complainant named Kanchan had love affair with the appellant. She eloped with the appellant Ram Gopal Saini and entered into marriage with him without knowledge and consent of the complainant. After the marriage, both of them started living in cohabitation as husband and wife in the house of appellant, where appellant's mother Kama Devi (deceased) also used to reside. Annoyed of the elopement of his daughter and marriage with the appellant with her against his wish, the Ram Gopal Verma lodged a criminal case against the appellant, his mother and sister under Section 363, 366 and 342 of the IPC in PS. Tanda Kotwali bearing crime case no.838 of 2008. Ram Gopal Verma as PW-1 has admitted in his deposition before the Court during his examination that his daughter Kanchan (deceased) had filed a writ petition in the High Court for the relief of quashment of the proceeding of aforesaid criminal prosecution, wherein the arrest of the accused (the appellant and his mother Kama Devi) was stayed.
54. So far as the criminal prosecution launched by the complainant against the appellant and his mother Kama Devi (deceased) is concerned, the evidence do not disclose the termination of that either by compromise or on merit. But in his own evidence the complainant himself admit the marriage between the appellant and complainant's daughter (Kanchan the deceased) consequent upon love affair between them. Therefore parties to the marriage consensuously entered into marriage. The other witnesses PW-2 to PW-5 (the sons, wife and daughter of complainant) what stated about their age in comparison to the Kanchan (deceased) disclose that she had attained the age of majority when entered in marriage with appellant in the year 2008. Then also the lodging and continuance of criminal prosecution against the appellant, his mother and sister is suggestive of complainant's malice and enmity towards them.
55. After the arrest of the appellant on 06.05.2013 pursuant to the complaint of Ram Gopal Verma on the same date and submission of charge sheet against him on 31.07.2013, the subsequent action taken by the complainant with regard to the property of the appellant is noticeable. He as PW-1 in his cross-examination dated 05.12.2014 admitted that he had filed a suit against the near relatives of appellant Ram Gopal Saini, bearing no.185/2013 for the custody of his immovable property, a residential plot abutting to the boundary of Roadway Station of Tanda having Gata No.231. He denied the suggestion that the suit was filed with intention to coerce the appellant and the complaint dated 06.05.2013 and the criminal case thereupon was lodged by him falsely with the same purpose but on the other hand, after the death of his daughter Kanchan (appellant's wife) and grand son Dhairya, though had no concern with the appellant's property, even then he filed a suit for the custody of said property, make him a person interested in seeing him behind the bars.
56. On the basis of above proven facts on evidence, the complainant Ram Gopal Verma appears to be inimical with the appellant and even with his mother Kama Devi (deceased) for the reason of her daughter's (Kanchan-deceased) elopement with him and getting married without his consent. Moreover, after the incident losing his daughter he turned not only hostile with appellant but also interested in his incarceration so as to derive benefit from his property. PW-1 is thus an inimical and interested witness against the appellant. Therefore, his testimony should have been cautiously considered by the trial judge before relying the same wholly or partly. In this regard, we think to refer following judgment of the Hon'ble Apex Court which would be relevant-
In State of Rajasthan Vs. Kalki19 it is held, para 7. "...........A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished......"
In Raju Vs. State of T.N.20 it is held, para 20. The first contention relates to the credibility of PW 5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi, both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW 5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
In Vijendra Singh Vs. State of U.P.21 it is held, para 31. "In this regard reference to a passage from Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13) "[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason."
57. Again in Ramashish Rai Vs. Jagdish Singh22, it is held, Para 7. ".......The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eyewitness account merely on the ground that there was enmity between the prosecution party and the accused party.
58. The Trial Court, in our considered opinion has not appreciated the evidence on record as to the character of the complainant as PW-1 in giving credibility to his evidence while weighing the strength of prosecution case.
11. Conduct of the witness PW-1
59. We further noticed from the evidence on record some unusual conduct and behavior of the complainant Ram Gopal Verma throughout the proceeding from the stage of investigation upto that of Trial. In evidence of PW-7, the Sub-Inspector who performed inquest proceeding, it comes out that being father of the deceased Kanchan the complainant did not complain anything on 19.04.2013 when the inquest was being done as to the suspicious death of the victims. PW-8, also has stated in his evidence that though PW-1 was present throughout the inquest proceeding and has been a signatory of the inquest report as witness and also of the memos prepared on seizure of materials therefrom, but he did not move any complaint as to the cause of death and the culprit. The statements of PW-6, PW-7 and PW-8 consistently affirm, he moved the complaint on 06.05.2013 with regard to the incident dated 19.04.2013. The complainant exhibit Ka-1 itself shows, he did not disclose therein, how he came to know with such precision the details as to the commission of murder of victims and also as to the complicity of the accused. PW-8 in his statement made it clear that PW-1 did not disclose the fact of filing a criminal case under Section 363, 366 and 342 I.P.C. against the appellant and his mother Kama Devi (deceased) and further the filing of writ petition by his daughter Kanchan (deceased) against him in the High Court. The complainant was when examined on 05.11.2014 as PW-1 supported the prosecution case arraigning the appellant but afterward he turned hostile on 22.06.2015 when he was subjected to cross examination. Subsequent development is also notable i.e. filing a suit for custody of appellant's property by him against the appellant's family members as detailed in the preceding para. It is rather surprising as to how and in what manner the complainant as an omnipresent witness came to know who committed the offence, when that was committed and how the poison was administered to cause death only on 06.05.2013. He did not refer any source of knowledge or offered to produce any witness of such facts. Keeping into consideration the unusual conduct and behaviors of the witness PW-1, we are constrained to hold that the same shakes not only the prosecution case but the sanctity of trial also.
12. Ram Gopal Verma (PW-1) and other witnesses of fact (PW-2 to PW-5)
60. The prosecution witnesses PW-2 and PW-4 are sons of PW-1 whereas PW-3 and PW-5 are respectively his daughter and wife. No doubt they are witnesses related with the deceased Kanchan and as such are natural witnesses also. Though, simply for the reason of their interestedness in seeking the culprit punished, being relative would not be a ground for their untrustworthiness, but like other witnesses they should have qualify the test of reliability, credibility and trustworthiness. Out of the witnesses PW-1, PW-2, PW-3, PW-4 and PW-5, we have already discussed the evidence on record which tend to show the PW-1 an inimical and interested witness in prosecution against the appellant. To justify the suitability, reliability and trustworthiness of a witness, it should be kept in mind, which fact he deposed in the Court. In the instant case the prosecution tried to prove two facts by examining it's aforesaid witnesses. First, the accused had committed murder of his mother Kama Devi, wife Kanchan and the minor child 'Dhairya' by administering them poison and second the motive of the appellant behind the commission of murder. Both the facts require personal knowledge of the witnesses, their spontaneity in narration, the probability of their observing the fact which they are proposed to prove.
61. The first version of the incident as reported by the Sunil Kumar Mali on 19.04.2013 at 06:45 and entered by PW-6 in G.D. on same date instantly did not see the light of the day. The version of Ram Gopal Verma as to the incident dated 19.04.2013 reported vide complaint dated 06.05.2013 is the very geneses of the prosecution story. As PW-1, Ram Gopal Verma when examined in the Court, reiterated the contents of his complaint in his examination-in-chief. Since we have given a detailed account of the contents of complaint moved by Ram Gopal on 06.05.2013, therefore, just to avoid repetition, we come to discuss the relevant portion of his statement before the Court. He states on 18.05.2013, his daughter Kanchan, her son Dhairya and Ram Gopal's (appellant's) mother Kama Devi were alongwith the appellant, in their house at the time of incident. Ram Gopal Saini in a conspiracy to remove all the three victims from his way, murdered them by administering poison and moved to Delhi. Neither the complaint nor the statement recorded before the Court discloses the source of knowledge of aforesaid fact as to the presence of appellant in the house or manner adopted by him in alleged murder. This is important to note here that as admitted by PW-1 himself the distance between the house of appellant and the PW-1 is about 800 to 1000 meters, therefore, without going to the house of the appellant and remaining there throughout the commission of incident, he could not have opportunity to observe and have personal knowledge of the incident. Moreover, if anyone else has told him about the incident, then such person not named in the complaint (Exhibit 1) or in his statement before the Court. On specific query made to him in Cross-examination, whether the said fact, he wrote in the complaint on his own or as informed by some one else, he replied on 28.01.2016, I wrote down the complaint as I wanted and not as informed by any one else. When the PW-1 was not informed of the incident by any eye witness and even he did not go to the house of appellant on 18.04.2013 and remain there, he had no occassion to have personally observe the incident. Even he had no knowledge as to the time, the appellant was lastly seen with the victims in his house and when he left the house. But posing himself as an omnipresent witness, he deposed before the court accounting the hypothetical graphics of the incident with minute details and thus established himself a liar and untruthful witness not worthy of credence.
13. Motive
62. Prosecution in the instant case sought to prove motive by PW-1 as he is the first person to blame the appellant a misdemeanant and set a motive for commission of murder of his own wife, mother and son, administering them poison. The motive he wrote in the complaint (Ex. KA-1) and stated in his examination before the Court is his extramarital and illicit relation with another married woman. He further stated that even after the marriage, the appellant remained in that illicit relation, therefore, he planned to murder the victims to keep smooth his illicit relation.
63. The extra marital illicit relation between two married persons, in the instant case allegedly between the appellant and Smt. Sunita Gupta, is a matter with regard to which there is no evidence on record. Evidence do not show any complaint on the part of husband of Smt. Sunita or by the deceased Kanchan against the appellant. On query made to the witness PW-1 in cross examination he accepted the lack of any such complaint. There is no independent witness having information or knowledge of intimacy between the appellant and said Sunita Gupta, is produced and examined before the Court. In the absence of any such evidence and witness, the alleged illicit relation between the appellant and Sunita Gupta remains a speculation without any substance. The PW-1 states that he was told about the illicit relationship of appellant with said Sunita Gupta by his daughter Kanchan (deceased) as she use to visit him in his house. The said statement seems not convincible and truthful, in view of the proved fact of criminal prosecution maintained by PW-1 against the appellant annoyed from the elopement of his daughter and marriage with him as well as writ petition by the daughter (deceased Kanchan) against PW-1 for personal protection and stay of prosecution. His inimical relation with his daughter and son in law does not make it believable that his daughter (Kanchan the deceased) had ever visited him after her marriage and converse any such fact to him. His statement as to the illicit relationship of appellant is not supported by other witnesses of fact produced by the prosecution namely his sons, daughter and wife (PW-2 to PW-5) in their statements. Even the PW-8 (the I.O.) in his statement has firmly negatived from the allegations leveled by the PW-1 against the appellant of having illicit relationship with Smt. Sunita Gupta. He stated the said allegations was found baseless with all respect in the investigation.
64. Dhairya (deceased) a male child was begotten out of wedlock of appellant and kanchan (deceased) after their marriage in 2008 who was four years old at the relevant date of incident. There is no complaint lodged with the police by the deceased Kanchan at any point of time before her death that she was being subjected to physical or mental cruelty consequent upon the alleged illicit relationship of the appellant. The prosecution remained fail even to establish the motive of the appellant consistent with his alleged guilt.
65. Other prosecution witnesses PW-2 to PW-5 have not even remotedly indicated any trace of discordant relations between the appellant and his wife Kanchan (deceased) or acrimony between them or a threat perception to the life of the deceased wife. In some how similar facts Hon'ble the Apex Court in the case of Gargi Vs. State of Haryana(Supra) held as under:-
"In the given circumstances, it is difficult to accept that prosecution was able to establish by cogent and reliable evidence that appellant was involved in illicit relations or was pressurising deceased to transfer property in her name and that there had been strong acrimony between deceased and appellant-It is also difficult to accept, for want of cogent corroborative evidence, if deceased had made any alleged statements about discord with his wife and threat perceptions to PW-7 and PW-8 - In the given circumstances, possibility of levelling of imputations on appellant for intentions other than bringing real culprit(s) to book, is not ruled out altogether."
66. The effect of failure of prosecution in proving the motive in a case based on circumstantial evidence is discussed by Hon'ble the Apex Court in a catena of judgment. It would be relevant to refer one of such judgment in the case of Kirti Pal Vs. State of West Bengal with Durga Sutradhar Vs. State of West Bengal & ors23. In para 26, it is held :-
26. "It is true that motive is an important factor in cases where the conviction is based on circumstantial evidence but that does not mean in all cases of circumstantial evidence if the prosecution is unable to prove the motive satisfactorily, the prosecution must fail. In this case, of course, the prosecution has not adduced evidence as to what was the motive for committing murder of Anjali. But it is a matter of common knowledge that murders have been committed without any pre-eminent motive. It is well established that the mere fact that the prosecution has failed to translate the mental disposition of the accused into evidence, that does not mean that no such mental condition existed in the mind of the accused. The same view was reiterated in Vivek Kalra v. State of Rajasthan [Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439 : (2014) 6 SCC (Cri) 782] ; it was observed thus: (SCC p. 442, para 6) "6. ... where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 8 of the Evidence Act, 1872 but where the chain of other circumstances establishes beyond reasonable doubt that it is the accused and the accused alone who has committed the offence, and this is one such case, the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence. In Ujjagar Singh v. State of Punjab [Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272] , this Court observed: (SCC p. 99, para 17) ''17. ... It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.'"
We thus hold, the prosecution remained fail to prove motive in the present case which is based on circumstantial evidence. Now we have to see whether other circumstances necessary to establish the accused committed the offence exclusively are proved by the evidence.
67. The instant case as alleged by the prosecution is a case of culpable homicide amounting murder by administrating poison to the victims. Since we have already observed that there is no evidence on record as to the strained relation between victims and the appellant or any other situation of discord between them interse, therefore we do not find any compelling circumstances to infer suicidal death of the victims. The prosecution since charged the accused for causing homicidal death of victims by administering them poison. The genesis of the allegation as to murder by the appellant is the complaint moved by PW-1 (Ram Gopal Verma) on 06.05.2013 and the self incriminating confession extracted by the investigating officer on 06.05.2013 in terms of the said complaint. The prosecution has no direct evidence to prove the charge of murder of the victims by poisoning against the appellant. To prove it's case apart from the PW-1 (Ram Gopal Verma), prosecution has produced five more witnesses allegedly of fact, PW-2 to PW-5. They are sons, daughter and wife of the PW-1. PW-8, the Investigating Officer in his cross-examination before the Court has deposed that no independent witness of the incident was available throughout the investigation. He further stated that in the instant case the witnesses are the sons, daughter and wife of the complainant. PW-1 also has admitted on 22.06.2015 the fact of his being the only witness in the case with his own family members and no one else is independent witness in the case. Interestingly, the PW-8 states in his examination-in-chief dated 30.08.2016 that he took evidence of 'Sakshi Mauka' (eye witness or witnesses on spot) the wife of complainant Smt. Chhaya Verma (PW-5) and son Dhananjay Verma (PW-4) on 07.05.2013 but this statement of PW-8 as to the status of aforesaid witness in itself is false, as neither of witness amongst the PW-1 to PW-5 can be presumed to remain present on the spot of incident at relevant time and date of incident (18/19.04.2013) because they ordinarily reside in their own house situated at 800 to 1000 meters away from the house of appellant (the spot of incident). They admittedly did not go on or before 18.04.2013 to the house of appellant. So far as the allegation as to the illicit relation of the appellant is concerned, none of the witness PW-2 to PW-5 have claimed in their statement that Kanchan (deceased) have ever visited their house and told them any such fact after her marriage with the appellant. As such the statement of PW-1 with this regard has not been corroborated by the evidence of other witnesses PW-2 to PW-5 and that of PW-8. For the sake of argument, if Kanchan (the deceased) had told any such fact of illicit relation of her husband (appellant) to her father (PW-1), he had not stated about his daughter having any threat perception of her life by reason of the said illicit relation. Therefore, the allegation as to illicit relation being simply hearsay can not be proved in the Court by PW-1. Further it can not be given weight for not being a circumstance leading to the cause of death of Kanchan and other victims of the incident.
14. Death by poison
68. The appellant was charge sheeted by PW-8 on 31.07.2008 arraigning him to cause death of his mother, wife and the four years' old son by administrating them poison. At this juncture, we think, it would be relevant to keep into consideration several facts in their chronological order.
a) On 19.04.2013 as the PW-7 the Investigating Officer performing inquest proceeding of the dead bodies stated, PW-1-Complainant did not opined as to the suspected cause of death of victims and became signatory of the inquest report with regard cause of death not clear.
b) The viscera were extracted from the dead bodies and sent to forensic science lab for examination and report on 19.04.2013 by the doctor who did autopsy on dead bodies.
c) On 23.11.2013, the F.S.L. furnished report on examination of viscera (forensic report code no.1482, 1483, 1484, 1485 of 2013 dated 22.11.2013 on record with specific finding as to the administration of Aluminum Phosphate (ALP) a pesticide commonly known as sulphas or Rice Tablet.
d) Before the above finding of F.S.L., the complainant moved his complaint dated 06.05.2013 with specific allegation as to the murder of all the three victims on 18/19.04.2013 by the appellant. Since on 19.04.2013 when during inquest the Investigating Officer, PW-7 was collecting information, during his inquiry as to the cause of death, he did not disclose the fact of poisoning.
The above three proved facts which came forth from the evidence on record tend to show in the absence of any disclosure as to the source of knowledge to the complainant either on his own or received from anyone else, the complaint would be treated moved with knowledge of murder by poisoning. The Investigating Officer, PW-8 had burden to collect the fact and circumstances in evidence to connect the accused with the incident of murder of the three victims on the relevant date or time of occurrence. But the PW-8 immediately while acting on the complaint dated 06.05.2013 with regard to incident dated 19.04.2013 arrested the appellant on the same date (06.05.2013) at 10:00 P.M., on the statement of complainant. Thereafter PW-8 extracted appellant's self incriminating confession of guilt of committing murder of his mother, wife and son by administrating them poison. The confession on having been extracted from the accused in police custody was unable to be proved in Court under Section 25 of the Evidence Act, 1872. Therefore, we perused the evidence on record to gather evidence if any sufficient for the trial judge to link the accused appellant from the guilt he is charged with. In this regard, the inquest reports proved in the Court are materially important which shows the physical state and symptom of poisoning on the dead body, much have been discussed by us in preceding paras in this regard.
15. Post mortem report and viscera test report
69. Since apparently there were no exterior marks of injuries on the dead bodies sufficient to cause death, therefore, the doctors who did autopsy on the dead bodies extracted the viscera and sent to Forensic Science Lab for examination as to the contents which might have caused death. The relevant parts of post mortem report, for the purpose of easy reference as to the physical states of dead bodies and opinion of doctor is being quoted hereunder.
Post Mortem report of Kama Devi (Exhibit Ka-23) Smt. Kama Devi External Examination Average body build.
Average Muscularity.
Rigor Mortis passed from the neck and present in upper & lower extremities froath from mouth illegible stool from Anus present Teeth 06/08 right eye semi open left eye closed Mouth Semi open Antemortem injuries (1) Abrasion of Size 2 cm. x 1 cm. present upper posterior part of Right forearm 1 cm. from the right elbow joint.
Internal examination Skull NAD Brain Congested (Heart findings and Wt.) All chamber of Heart Stomach (wall condition, contents and smell) Stomach wall congested about 200 ml. of Semi- solid contents present (Large Intestines and mesenterc Vessels) Congested G.B. Half field (Immediate Cause) Could not be certainly Vicera sends for Physical & Chemical analysis for Expert Opinion Post Mortem report of Kanchan (Exhibit Ka-27) Smt. Kanchan Devi External Examination Average body build. Average Muscularity eye close. Mouth close froth from the mouth from left angel of illegible Rigor Mortis pass from the neck & present in upper & lower extremities. Teeth 16/16 illegible & lower jaw Antemortem injuries No External mark of injury present at all over the body (External General Appearance) Cynosis of nail present Internal examination Skull Membranes Intact (Orbital, Nasal, and Aural Cavities - Findings) Congested Lung findings Congested (Heart findings and Wt.) filled with blood Stomach (wall condition, contents and smell) Mucosa congested (Small intestine including appendix) about 50 ml. semi solid contents pre (Large Intestines and mesenterc Vessels) Congested, Gallbladder full (Kidneys finding) Congested (Urinary Bladder and Urethra) Partially field (Genital Organs) Vaginal Swab present (Immediate Cause) Could not be certained Vicera preserves for forensic analysis Post Mortem report of Dhairya (Exhibit Ka-31) Dhairya External Examination Average body build. Average Muscularity. eye semi open Mouth semi open Teeth U/L 8/8 R/M passed from neck & Lower extremities, Nail cynosed Lip Cynose...... Antemortem injuries No external mark of injury present Internal examination Brain Congested (Lungs Findings) Congested (Heart findings and Wt.) full with Blood (all chamber) Stomach (wall condition, contents and smell) Mucosa congested (Small Intestine including appendix ) about 50 ml. semi solid food material. Pastry food & Gas. (Large Intestine and mesenterc vessels) illegible & Gas. G.B. full. Liver congested (Kidneys finding) Congested (Urinary Bladder and Urethra) Partially field (Immediate cause) Be a certained vicera preserves & sent to forensic Lab. for chemical and physical analysis.
70. The report of Forensic Science Lab were received on 22.11.2013 of which, the three FSL reports code nos.1482/13, 1483/13 and 1484/13 are with regard to finding as to the existence of poison Aluminum Phosphide (ALP) in the stomach of victims namely mother-Kama Devi, wife- Kanchan and son-Dhairya. The fourth report of FSL code no.1485/13 is with regard to the existence of ALP found in the vomiting on the bed sheet seized from the spot of incident and not upon metallic glass found from the spot of incident (material exhibit 6 & 7).
Forensic Report Code No.1482/2013 "foljk ds Hkkxksa ¼1&5½ esa vY;qfefu;e QkWLQkbM fo"k ik;k x;k] fdUrq ;g oLrq ¼06½ esa ugha FkkA jklk;fud fof/k;kW iz;ksx dh xbZA vU; jklk;fud fo"k ds iz;ksx udkjkRed jgsA iz;ksx ds le; leLr lko/kkfu;kW /;ku esa j[kh xbZA"
Forensic Report Code No.1483/2013 "foljk ds Hkkxksa ¼1&5½ esa vY;qfefu;e QkWLQkbM fo"k ik;k x;k] fdUrq ;g oLrq ¼07½ esa ugha FkkA jklk;fud fof/k;kW iz;ksx dh xbZA vU; jklk;fud fo"k ds iz;ksx udkjkRed jgsA iz;ksx ds le; leLr lko/kkfu;kW /;ku esa j[kh xbZA"
Forensic Report Code No.1484/2013 "foljk ds Hkkxksa ¼1&5½ esa vY;qfefu;e QkWLQkbM fo"k ik;k x;k] fdUrq ;g oLrq ¼06½ esa ugha FkkA jklk;fud fof/k;kW iz;ksx dh xbZA vU; jklk;fud fo"k ds iz;ksx udkjkRed jgsA iz;ksx ds le; leLr lko/kkfu;kW /;ku esa j[kh xbZA"
Forensic Report Code No.1485/2013 " oLrq ¼1½ ls ¼4½ esa vY;qfefu;e QkWLQkbM fo"k ik;k x;k] jklk;fud fof/k;kW iz;ksx dh xbZA vU; jklk;fud fo"k ds iz;ksx udkjkRed jgsA iz;ksx ds le; leLr lko/kkfu;ka /;ku esa j[kh x;hA"
16. Nature and general use of ALP
71. The learned Government Advocate, Sri Vimal Prakash placed before us for perusal a downloaded copy of an article titled as, "Treatment of Aluminum Phosphide Poisoning with a combination of Intravenous Glucaon, Digoxin and Antioxidant Agents" by 'Zohreh Oghabian' and 'Omid Mehrpour'24. It is helpful in understanding the nature, application and fatal effect of pesticide poison named Aluminum Phosphide, reported by the F.S.L., found in the 'viscera' extracted from the dead bodies of victims and not found in and upon the material exhibits 6 & 7 placed before the Court. With courtesy to the authors of the said article we cite the relevant portions extracted therefrom as under:-
Abstract "Aluminum phosphide (ALP) is a very effective outdoor and indoor pesticide used for protecting stored grains from rodents and other pests.1 In Iran, AlP tablets are widely used for protecting rice against pests and so are traditionally called "rice tablets".2 Phosphine gas (PH3) is rapidly formed and released when AlP comes into contact with water or dilute acids, such as those found in the stomach, and is the fatal active form of the pesticide.3 The two main routes of acute toxicity due to AlP are the ingestion of AlP tablets and inhalation of released PH3. Although the exact mechanism of action of AlP is not clearly understood, PH3 is thought to induce toxicity by blocking the cytochrome c oxidase enzyme and inhibiting oxidative phosphorylation which eventually leads to myocyte death.1,2 AlP poisoning has a very high mortality rate (30-100%) and survival is unlikely if more than 1,500 mg is ingested; the lethal dose for an individual weighing 70 kg is 150-500 mg.1 Exposure to AlP is rarely accidental and the majority of cases of severe AlP poisoning are reportedly due to the deliberate ingestion of AlP tablets with suicidal intentions.2,3 Although there are reports of accidental inhalation of PH3 gas, especially among workers, AlP is known as a suicide poison with no effective antidote that can be easily bought.2 Presenting features of AlP intoxication include the rapid onset of shock, vomiting, nausea, retrosternal and epigastric pain, dyspnoea, anxiety, agitation and garlic-odour breath.3 An early sign of AlP poisoning is severe metabolic acidosis and hypotension, which leads to shock and tissue perfusion failure in the first couple of hours after ingestion due to cardiogenic shock and peripheral circulatory failure.1-4 Other cardiovascular complications include cardiac arrhythmias and acute myocardial infarctions.1 Profound circulatory collapse is commonly associated with AlP poisoning; this is believed to be due to the direct effect of PH3 on the heart cells.5 Cardiogenic shock is one of the main causes of death.5,6 There is currently no known antidote for this poison and most treatment modalities are not successful; however, the effective treatment of AlP poisoning using an intra-aortic balloon pump (IABP) and digoxin has previously been reported.5,6 In addition, other researchers have reported that glucagon, digoxin or antioxidants administered individually to poisoned patients have had a beneficial effect.3,5 This report is the first to present the combined administration of glucagon, digoxin and antioxidants in the management of a patient with AlP poisoning."
ALP Forms It is available as tablets (3 g, trade names: Phostoxin, Bhostoxin, Quickphos Phosphume Phostek) releasing 1 g PH3 or as pellets (0.6 g, Quickphos, Alphos, Cellphos). The tablets are green, brown or gray, and each tablet contains 56% AlP and 44% aluminum carbonate.
Mechanism of action In the case of oral intake, the phosphine gas released is absorbed by the gastrointestinal tract with simple diffusion and is mainly excreted by the kidneys and lungs. Phosphine, like cyanide, inhibits mitochondrial cytochrome oxidase and cellular oxygen utilization [13-15].
Toxicity The fatal dose for a 70 kg adult is 150-500 mg [6,8]. Permissible exposure limit (PET) is 0.3 ppm over an 8 h shift (for factory stuffs). The range of short term exposure limit (STEL) is 1 ppm and immediate danger to life and health would be 200 ppm. For lethal dose in 30 min, the range of 400-600 ppm (10 mg/Kg AlP) has been determined. It has been reported that its LD50 in mice (inhalation of fumes) is 0.68 g/m3 during 65-75 min of exposure and for rats is 1.47 g/m3 during 35-50 min of exposure. LD50 for cats is 25 ppm (2-4 h daily during 3 days).
Etiology AlP is the most common agent of poisoning in rural or sub-urban zones of some countries such as India, where it is usually ingested for suicide [5]. It is also uses as a suicide agent in Iran [24] but its poisoning in other countries may be due to occupational exposure [16]. AlP can induce rarely complications including hepatitis, acute tubular necrosis, gastroduodentitis, bleeding diathesis, corrosive like esophageal stricture and intravascular hemolysis.
72. In view of the nature, form and availability in general use as pesticide (rice tablets) and as it's etiology discloses, it's use mostly found in suicidal cases. The prosecution when sets it's use in causing homicidal death of the victims on 18/19.04.2013, is heavily burdened to connect from such use to the accused exclusively, beyond all reasonable doubts. What the prosecution was required in such a case is discussed by Hon'ble the Supreme Court in the case of 'Sharad Birdhichand Sarda Vs. State of Maharashra(Supra), Hon'ble S. Murtza Fazal Ali, J. discussed in para 164 and 165:-
164. "We now come to the mode and manner of proof of cases of murder by administration of poison. In Ramgopal case [(1972) 4 SCC 625 : AIR 1972 SC 656] this Court held thus: (SCC p. 629, para 15) "Three questions arise in such cases, namely (firstly), did the deceased die of the poison in question? (secondly), had the accused the poison in question in his possession? and (thirdly), had the accused an opportunity to administer the poison in question to the deceased? It is only when the motive is there and these facts are all proved that the court may be able to draw the inference, that the poison was administered by the accused to the deceased resulting in his death."
165. So far as this matter is concerned, in such cases the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:
(1) there is a clear motive for an accused to administer poison to the deceased, (2) that the deceased died of poison said to have been administered, (3) that the accused had the poison in his possession, (4) that he had an opportunity to administer the poison to the deceased."
73. In view of the requirement of proving the facts enumerated in the judgment quoted here above, in the case before us two facts stand proved (i) the death of all the victims of incident from pesticide poison Aluminum Phosphide (ALP) and (ii) because of the proved fact that appellant ordinarily used to reside in his dwelling house (the spot of incident) alongwith his family members the victims, his mother Kama Devi (deceased), his wife Kanchan (deceased) and four years' old son Dhairya (deceased), he might have opportunity to administer them poison. But out of the four rest of the two facts namely (1) the motive to administer poison to the deceased, prosecution failed to prove what induced the accused to do such offence and that (iii) the accused procured and had the poison in his possession. The prosecution right from the stage of investigation and even up to the stage of trial neither has collected evidence so as to prove the essentially required facts stated hereabove, with regard to procurement and possession of the poison specifically named as Aluminum Phosphide (ALP) commonly used as pesticide and known as Rice Tablets or celphos. The investigating officer has not collected evidence as to storage of food grain in house of incident by the family and use of pesticide for their preservation in storage. The evidences show the appellant to be in employment as a fourth class employee, a peon in TNPG Degree College, Tanda. He is not proved by evidence to be in occupation of grocery business in connection of which he may be presumed to have the pesticide poison 'ALP' in his possession, to the contrary the complainant is established and proved by his own evidence also to be in occupation of grocery shop in the same locality at a distance of 800 to 1000 meters from the house of appellant and naturally can be presumed to be in possession of pesticide like ALP in ordinary course of his established business. The prosecutor thus failed to prove the appellant to be in possession of pesticide known as ALP at the relevant date, time and place of incident. The evidences on record also lack any positive evidence as to his procuring pesticide (ALP) from any shop on or before the date of incident. In the absence of any such evidence as to the procurement and possession by the appellant of the poison specifically named the pesticide 'ALP', the case of prosecution as to the use and administration of that poison by the accused becomes legless and thus not proved.
17. The time of death
74. The victims namely, mother of the appellant Kama Devi (60 yrs.), wife Kanchan (35 yrs.) and son Dhairya (4 yrs.) when died is not known. Even the charge is framed as to the commission of murder on date and time 'Not known'. The first information received in the local police station on 19.04.2013 at 06:45 A.M. is entered in the G.D. of the same date. In any case, it can be said, they were found dead by the first informant Sunil Kumar Mali in the morning of 19.04.2013. The complainant informed about incident on 1.04.2013 by moving a written complaint on 06.05.2013 in the same police station without specifically stating the date and time that the appellant has murdered the victims. The question important for holding the liability of triple murder as complained by the PW-1 on 06.05.2013 is that particularly and specifically when the murder was committed. Since the death of the victims is proved to have been caused by administration of poison then the material fact is when the poison was administered to the victim and by whom. We kept in our mind the fatal effect of the pesticide (ALP) and it's proximate time for coming into fatal action after oral ingestion. We have gathered information as to the above from the extract of 'article' cited in one of the preceding paras. It comes into market in form of tablets of 3 grams. The toxic effect of ALP is due to deadly phosphine gas liberated when it reacts with water or hydro chloric acid in the stomach an early sign of ALP poisoning in severe metabolic acidosis and hypotension, which lead to shock and tissue perfusion failure in the first couple of hours of the ingestion.
75. The doctor who did autopsy on the dead body of Smt. Kama Devi and Kanchan is produced for examination before the trial judge as PW-9. In his statement Dr. Lal Chand Jain, who was posted as C.M.O. in District Hospital, Ambedkar Nagar on 19.04.2013 has stated that he did the postmortem examination of deceased Kama Devi (of 60 yrs.), Kanchan (30 yrs.) and Dhairya (4 yrs.) with the assistance of Dr. S.P. Mishra and Dr. Vijay Bahadur Gautam. He stated that autopsy was started at about 03:00 P.M. on 19.04.2013. On having been asked about the proximate time of death, he relied on the principles as to the determination of time of death on the basis of stages of rigor mortis seen over the dead body at the time of autopsy i.e. in the instant case at 03:00 P.M. on 19.04.2013. Before discussing on the basis of Modi's Medical Jurisprudence, we think it would be relevant to see the observation of Doctor (PW-9) who did the autopsy on dead bodies as to the stage of 'Rigor Mortis' at 03:00 P.M. on 19.04.2013. PW-9 stated in his cross-examination that there was no symptoms of decomposition on dead bodies. Further, he stated about the presence of rigor mortis on upper and lower limb before the neck of the dead body of deceased-Kanchan, same stage of rigor mortis was on the dead body of Kama Devi (60 yrs.). He finished the autopsy on dead bodies by 03:45 P.M. to 04:00 P.M. on the basis of rigor mortis, he estimated the time of death at any time to a maximum twelve hours ago from the time of post mortem but less than the period of a day. As such in his opinion the victims would have died at any time before 03:00 A.M. on 19.04.2013 in the night of 18/19.04.2013.
76. Scrutinizing the time of death on the basis of stages of rigor mortis visible on dead body is not a mathematical calculation to get actual time of death because according to Modi's Medical Jurisprudence Hon'ble the Apex Court in the case of Virendra @ Buddhu and ors. Vs. State of U.P.25 has held on the point, rigor mortis how aid in determining time of death and up to what extent:-
"25. It is mentioned at p. 125 of Modi's Medical Jurisprudence and Toxicology, Edn. 1977 that in general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. In the instant case rigor mortis was present in lower extremities at the time autopsy was conducted on the dead body after 30 hours. As according to ocular testimony the deceased was murdered on 5-10-1979 at about 10.00 a.m. and the doctor conducted autopsy on the dead body on the next day at about 4.30 p.m. after 30 hours of death but rigor mortis was found present in lower extremities. Had he died on 4-10-1979 at about 10.00 p.m. or so rigor mortis would have passed off from the dead body completely at the time of autopsy. Thus the ocular testimony that he was murdered on 5-10-1979 at about 10.00 a.m. stands corroborated from the medical evidence pinpointing that rigor mortis was present in lower extremities at the time when the autopsy was conducted on the dead body after 30 hours."
77. In the instant case the autopsy on dead bodies were done after atleast 8 to 9 hours of the information to the police station at 06:45 A.M. as to the dead bodies of victims lying in the house of appellant, the spot of incident situated at District Ambdekar Nagar in plains of the State of Uttar Pradesh. The incident occurred in the month of April which is beginning of summer in that region. As such approximate time of appearance of rigor mortis and staying up to 12 hours and thus passing of the same after 12 hours is seen not complete in the same succession and was found passed off up to neck only, the death can be estimated to have been occurred from 12 to 18 hours ago from time of post mortem (from 03:00 to 04:00 P.M. on 19.04.2013). The victims of the incident would have died some times in between 02:00 A.M. to 03:00 A.M. in the night hours of 18/19.04.2013. The poison would have been taken/administered some times in between 10:00 P.M. to 12:00 P.M. hours in night.
18. Who administered the poison?
78. In the instant case the victims of the incident dated 19.04.2013 are proved to have died as a result of poisoning therefore, the question is who administered the poison. There is no direct evidence as to the poisoning by any person, however, the complainant Ram Gopal Verma in his complained alleged murder of victims committed by the appellant. He did not disclose the manner in his complaint (exhibit 1) in which murder is committed. In the evidence of PW-8 (Investigating Officer) the manner in which the appellant allegedly committed the murder is disclosed by his confession extracted by PW-8 in the police custody that he committed the murder of the victims by administrating them poison. For the first time, the complainant as PW-1 deposed before the trial judge that appellant in a conspiracy, given poison to his mother, wife and son. He did not disclose how he came to know this fact, in his examination in chief, he stated that he was informed of the fact of murder by poisoning to the victims from the neighbouring and other people of the area. But who were those people who informed him of the said fact were neither named nor produced before the court. The law of evidence does not permit any person who is informed of a fact from some other person or persons to be a witness to prove that information, if the person who informed is alive, available to depose before the court and is not suffering from any infirmity to attend the court. In the instant case the PW-1 has kept the persons 'anonymous' who informed him the fact, the appellant murdered the three victims of the incident by administering them poison.
19. Circumstantial evidences
79. No direct evidence as to the administration of poison by the accused could be adduced by the prosecution. Therefore, the contextual facts constituting the circumstantial evidence in the case which tend to prove the guilt of the accused need to be considered. In the case of Sharad Birdhichand Sarda (Supra) as per Hon'ble S. Murtza Fazal Ali, J. the following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence.
153. "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
20. Last seen evidence
80. In the context of the fact that the appellant ordinarily used to reside in his dwelling house alongwith the deceased victims namely his mother, wife and son and that in his absence they were found dead by poisoning. In the absence of direct evidences as he administered them poison, the last seen evidence would be of most importance with regard to inference of guilt of the accused in absence of any explanation.
81. We have gone through the evidence adduced by prosecution, available on the record of trial so as to gather the evidence as to when the accused was last seen alongwith the victims in his dwelling house. The victims (deceased) as per evidence of medical expert PW-9, on the basis of rigor mortis apparent over their dead bodies can be presumed to have died any time between 12 O' Clock to 02:00 A.M. in the intervening night of 18/19 April 2013. Further, as we have discussed earlier about the fatal activity of the pesticide ALP (Sulphas) would have taken effect maximum within a couple of hours from ingestion, the same might have been administered to/taken by the victims within 10:00 P.M. to 12 O' Clock in the same night. In Sharad Birdhichand Sarda (Supra), Hon'ble S. Murtza Fazal Ali, J. says, the circumstances that the appellant was last seen with the deceased before her death, if proved, would be a conclusive evidence against the appellant. But for examining the circumstance a computerized and mathematical approach to the problem in fixing the exact time of the various events can not be correct when from the evidences such precision in time does not appear to be possible one should always give some room for a difference of a few minutes in the time that a lay man would say.
82. The complainant Ram Gopal Verma, who is the first man who levelled allegation over the appellant of committing murder of his mother, wife and son by administering poison has submitted himself for examination before the Court on 05.11.2014. Though in his complaint dated 06.05.2013, he has not alleged 'administration of poison' to the victims for their murder by the appellant, has improved his allegations in his statement under examination in chief. He stated, " Ram Gopal Saini, in conspiracy to remove the victim trio from his way, administered poison to them to kill and thereafter went to his sister's house at Delhi". The nature of above statement appears to be statement of an eye witness present on spot of incident who observed personally the incident. He, in the same continuation stated that after the occurrence, he (the appellant) disappeared on the pretext of going to Delhi. In view of the above statement on oath before the Court he was burdened to disclose at what time the appellant administered the poison and secondly when he left the house after occurrence.
83. The helmsman of the prosecution case, PW-1 (Ram Gopal Verma) deposed in the Court in the course of his cross examination by Defence Counsel on 05.12.2014, "I never met the accused Ram Gopal Saini till the date of lodging the First Information Report of the incident. After the FIR was registered, I met with the accused in Police Station, Tanda Kotwali on 08.05.2013." The statement of PW-1 thus discloses that before 08.05.2013, he never met Ram Gopal Saini (appellant). In cross-examination on 22.06.2015 by learned counsel for the defence, PW-1 refined his answer as to when he lastly met the accused. He stated, after the incident I met for the first time with the accused on 08.05.2013. I never met with Ram Gopal Saini (appellant) in between 18.04.2013 to 08.05.2013." In the context of above statement of PW-1 and the 'time of incident', as estimated on the basis of medical evidence of PW-9, in the intervening night of 18/19 April 2013, it comes forth that the PW-1 is not a last seen witness, because of, firstly he is not stating about when he seen lastly the appellant with the deceased in the dwelling house (the spot of incident) and secondly there is a considerable large gap between he met appellant before 18.04.2013 and time of incident in the intervening night of 18/19 April 2013.
84. It would be relevant here to refer the view expressed by Hon'ble the Supreme Court with regard to application of 'Last seen principle' in the case of Bodhraj @ Bodha and ors. Vs. State of Jammu & Kashmir26.
31. "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."
85. Not only PW-1 but other witnesses of fact PW-2 to PW-5, the near relatives of Deceased Kanchan namely her brothers, sister and mother also denied to have last seen the appellant before the incident. The simple reason commonly stated by them is that they were not in terms of visiting the appellant and deceased Kanchan other at their houses and meet together, after the incident of elopement of Kanchan to marry with appellant in 2008. The reason behind such acrimony is stated their intercast marriage and criminal prosecution filed by the PW-1 against appellant, his mother and sister. So far as PW-8 and other Police witnesses PW-6 and PW-7 are concerned, they are not witness of fact. Their information collected during investigation can only be read in evidence when the person who informed is produced as witness to prove the same before the Court. PW-8 in his cross-examination dated 30.08.2016 stated that he came to know during investigation that since one day prior to the date of incident (18/19 April, 2013) the accused was not in 'Tanda'. He further clarified that from investigation, it came into knowledge that he (appellant) had gone Delhi to join a feast in the house of his sister. PW-4, Dhananjay Verma, the brother of deceased-Kanchan in his cross-examination dated 08.02.2016 confirms that the sister of appellant named 'Maya' has her house in Delhi. He has also stated that it is wrong to say, accused masqueraded after the incident to go Delhi. The prosecution evidence further prove (PW-1, PW-6, PW-8 and PW-4) that appellant was present at the time of post mortem on 19.04.2013 (after 03:00 P.M.) and he performed the funeral rites of the dead bodies. The prosecution evidence thus itself sufficient to show that the appellant went to Delhi some times on 17.04.2013 (on day before the date of incident i.e. 18/19 April 2013) to join the feast on the occasion of house warming (Grih Pravesh) ceremony of his sister's house, and also that he again appeared in 'Tanda' only on 19.04.2013 after 03:00 P.M. when the post mortem of dead bodies was being done in post mortem house, District Hospital, District Ambedkar Nagar. It simply means that meanwhile the accused was not present in 'Tanda'.
21. Evidentiary value of witness who turned hostile
86. Though the prosecution's witnesses posed to be witness of fact respectively PW-1 to PW-5 all went hostile on and after 22.06.2015. This would be important to state that on 05.11.2014 when PW-1 was produced as witness of prosecution, during his examination-in-chief and thereafter in his cross-examination by learned defence counsel on 05.12.2014, he was supporting the prosecution case but thereafter cross-examination kept continued and again resumed after a considerable long lapse of time on 22.06.2015, he turned hostile to the prosecution case. The question arises how the evidence of these hostile witnesses will be weighed, and deposition of PW-1 to what extent lends support to the prosecution case. The PW-1 is the first man who complained on 06.05.2013 that the appellant and none else has committed murder of the victims on 18/19 April 2013. Further, he developed the hypothesis of guilt on the part of appellant by stating in his examination-in-chief as PW-1 that he administered poison to the victims and thus murdered them. He does not disclose either in the complaint nor in his deposition before the Court as to how he came to know the above material information relevant to the fact in issue or who informed him the said fact. He does not claim himself eye witness of the fact. In cross-examination made by Learned Defence Counsel when he turned hostile, he stated the said fact came to his knowledge from the people of the nearby locality. Our Courts have held that outright rejection of the evidence of such witnesses is not permissible. The parties entitled to rely on such part of their evidence which assist their case. We would refer the following para from the judgment of Hon'ble the Supreme Court in T. Shankar Prasad Vs. State of A.P.27, being relevant on the point:-
24. "The fact that PW 1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in criminal prosecution when a witness is cross-examined and contradicted with the leave of court by the party calling him, his evidence cannot as a matter of law be treated as washed off record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the said witness, accept in the light of the other evidence on record that part of his testimony which he found to be creditworthy and act upon it........."
In State of U.P. Vs. Ramesh Prasad Misra & Anr.28, Hon'ble the Apex Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of prosecution or defence may be accepted.
In Himanshu @ Chintu Vs. State (NCT of Delhi)29, it is held :-
30. In Prithi v. State of Haryana [(2010) 8 SCC 536 : (2010) 3 SCC (Cri) 960] decided recently, one of us (R.M. Lodha, J.) noticed the legal position with regard to a hostile witness in the light of Section 154 of the Evidence Act, 1872 and few decisions of this Court as under: (SCC pp. 544-45, paras 25-27) "25. Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However this view has not found acceptance in later decisions. As a matter of fact, the decisions of this Court are to the contrary. In Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916] , a three-Judge Bench of this Court relying upon earlier decisions of this Court in Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 : 1976 SCC (Cri) 7] , Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566] and Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59] reiterated the legal position that: (Khujji case [(1991) 3 SCC 627 : 1991 SCC (Cri) 916] , SCC p. 635, para 6) ''6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof.'
26. In Koli Lakhmanbhai Chanabhai v. State of Gujarat [(1999) 8 SCC 624 : 2000 SCC (Cri) 13] this Court again reiterated that testimony of a hostile witness is useful to the extent to which it supports the prosecution case. It is worth noticing that in Bhagwan Singh [(1976) 1 SCC 389 : 1976 SCC (Cri) 7] this Court held that when a witness is declared hostile and cross-examined with the permission of the court, his evidence remains admissible and there is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.
27. The submission of the learned Senior Counsel for the appellant that the testimony of PW 6 should be either accepted as it is or rejected in its entirety, thus, cannot be accepted in view of the settled legal position as noticed above."
87. The crux of the prosecution case is appellant has administered poison to the victims namely Kama Devi (his mother), Kanchan (wife) and Dhairya (his 4 years' son) and thus committed their murder. In light of the law laid down by Hon'ble the Apex Court in various cases when the prosecution witness turned hostile with regard to evidentiary value of the deposition made before the Court. In the instant case, the prosecution has not produced any such person of nearby locality who had personal knowledge of the said fact either directly or by observing surrounding circumstances leading to an inference as to the guilt of the appellant. The other witnesses of the fact PW-2 to PW-5 are the members of the PW-1's family, they from the very inception of their deposition before the Court have stated about Kanchan (deceased) had no visiting terms with them after the incident of her elopement and marriage with appellant and also about their want of knowledge as to appellant whether was present in Tanda on the date and time of incident or not. Therefore, we did not find any part of evidence of the PW-1 having corroboration from the deposition of other prosecution witness or finding support from their evidence with regard to the fact in issue. Even they had not corroborated the statement of PW-1 with regard to the illicit relations of the appellant with another woman as alleged by the PW-1.
88. To the contrary, the PW-1 in his cross-examination before the trial Court stated, "in the instant case he (PW-1), his wife, sons and daughter are witnesses and none else is independent witness. He did not have knowledge prior to the incident as to the fact of appellant whether will be in home on the relevant day, date and time of incident. In continuation of the cross-examination on 28.01.2016, he deposed that he (PW-1) and his family members had no usual visiting terms with Kanchan (deceased) at her home. Since before a day from the date of incident i.e. 18.04.2013, the appellant was in his sister's house at Delhi. He further stated about appellant that he had no illicit relation with any other woman and his daughter Kanchan was happily cohabiting with appellant without any complaint. He firmly stated that he came to know about the incident on 19.04.2013. On having been cross-examined with the leave of the Court by the public prosecutor, he assertively stated that on the date of incident, the appellant was in Delhi and his statement contrary to this, written in his examination-in-chief is wrong. He stated, I never seen the appellant personally on the date of incident and saw him only after the incident in post mortem house. All the PWs from PW-1 to PW-5 have stated that they did not attend the funeral and last rites of the deceased which was done by the appellant. Thus, the evidence of PW-1 deposed in his cross-examination as to the appellant's absence on the date of incident in Tanda, his being in Delhi. at his sister's house and presence in 'Tanda' only on 19.04.2013 finds support and corroboration with the deposition on the same fact by PW-8, the investigating officer and also from the evidence of PW-2 to PW-5. The part of his evidence as observed above by us deserve to be read in evidence and to be taken into consideration while deciding the fact in issue, as to the "administering poison" and whether the appellant committed murder of the victims by administering them poison.
22. Conviction based on circumstantial evidence
89. As in the instant case, learned trial court has recorded conviction of the appellant purportedly on the basis of circumstantial evidence, therefore we have to find out the circumstances carved out by the learned trial judge from the evidences on record which if taken in their totality lead to the inference exclusively suggesting the guilt of the accused and none else. In a catena of judgments Hon'ble the Apex Court has elaborately reiterated the principles governing the appreciation of circumstantial evidence and when it can be made basis of the conviction. Before proceeding further with discussion over this aspect in the instant case, we think it would be relevant to quote one of such judgment of Hon'ble the Apex Court in R. Shaji Vs. State of Kerala30. Para 40 of the judgment is quoted hereunder:-
40. "It is a settled legal proposition that the conviction of a person accused of committing an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances, such conviction may also be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice only to lend assurance to the court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability the said offence must have been committed by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] and Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98] .)"
90. The prosecution in the context of the charge of 'murder by poisoning' had to prove certain facts relevant to the fact in issue and surrounding circumstances thereto, which can be enumerated in the instant case as under:-
(i) The accused/appellant had a clear motive to commit murder of his mother, wife and the four years' son.
(ii) That the appellant was in extramarital illicit relation with one Sunita Gupta wife of Ved Prakash Gupta.
(iii) The wife or/and the mother had tense relation with the accused/appellant due to any dispute and in connection thereto there persisted strong acrimony between them.
(iv) The mother and/or wife had complained to their relatives or law enforcing authorities with regard to their threat perception as to life at the end of accused appellant.
(v) The victims of the incident used to reside in same dwelling house alongwith the appellant without intervention of sharing of anyone else.
(vi) Victims died due to poisoning.
(vii) The accused appellant procured the pesticide named 'Aluminum Phosphide' which is a scheduled pesticide poison from any shop or otherwise and he was in possession of the poison at the relevant date and time of the incident.
(viii) The accused appellant had reason to ordinarily possess the pesticide ALP in connection with any business and therefore he may be supposed to possess in home such poison on the date and time of the incident.
(ix) That on or soon before the relevant date and time of the incident, any altercation took place between the victims of the incident and the appellant.
(x) The appellant was seen by any one in his house alongwith the victims on the relevant date and time, more exactly to say in the night of 18/19 April, 2013.
(xi) The appellant was seen by any one leaving his house in the night of 18/19 April 2013.
(xii) The appellant was seen in perturbed and perplexed physical and mental condition in or out of his house in the night of 18/19 April 2013.
(xiii) That after the incident the appellant was absconding and hiding himself from police and other persons of the locality.
(xiv) That none else except the appellant has opportunity or chance to access to the victims in house (spot of incident).
(xv) That no one else met the victim in their house since 17th April till any time in the night of 18/19 April 2013 when the incident took place.
91. Out from the circumstances enumerated here in above, the prosecution by it's positive evidence has succeeded in providing circumstances mentioned at serial no. (v) and (vi) only, that is to say, the victims ordinarily used to reside in the same dwelling house with the appellant where the incident was committed and that the victims died by reason of administration of pesticide poison (Aluminum Phosphide). No positive and direct evidences were adduced by the prosecution before the trial court to prove other circumstances enumerated in the preceding para, though the same were quite possible to be proved and evidences thereto were within reach of the prosecution. The first informant Sunil Kumar Mali who reported the incident on 19.04.2013 instantly in the morning at 06:45 A.M. was not produced for examination before the trial Court. He being a near relative of the victims and appellant was the best person to state about the cause of death, mutual relations between the victims interse as well as with the appellant. He would have been a material witness as to when and how he came to know about the incident. This probable witness was signatory as witness of inquest and also a witness whose pre-trial statement under Section 161 Cr.P.C. the PW-8 (I.O.) had recorded during investigation.
92. We have noticed and carved out in earlier part of this judgment, several material omissions, defects and skipping in procedure during investigation which has emerged from evidence on record, which have adversely affected the case of prosecution. The defective investigation has created vast gaps in prosecution story. The lack of evidence as to tense relations between appellant and his deceased wife and / or also with his mother (deceased), the lack of evidence as to conversation / communication with any relative by the deceased Kanchan (Appellant's wife) as to any acrimony or threat perception of life from appellant, the lack of evidence as to the extra marital illicit relationship of appellant with another woman and the appellant causing usual altercation with his deceased wife, all have caused failure of prosecution in proving a clear motive on the part of appellant to kill not only his wife but also his mother and a four years' old innocent son. Likewise, no positive evidence as to the procurement and possession of poison with appellant is adduced by the prosecution so as to link him with the incident of poisoning. Moreover, prosecution seems uninterested in producing last seen evidence so as to prove the relevant fact as to the appellant, lastly seen alongwith the victims in his house on 18 April, 2013 before the incident or of his leaving the house at any time thereafter. The prosecution evidence tend to establish the appellant being out from his house since 17 April, 2013 and he was seen thereafter on 19.04.2013 at post mortem house at 03:00 P.M. In this large gap of time, no evidence to over rule the possibility of access to the victims by any one else, was adduced, rather there is admission of the PW-1 himself that he was in usual visiting term with his deceased daughter though we have held the same unbelievable in the circumstances of the case. The evidence of neighbouring people would have been helpful in proving the said fact.
93. We have also noticed that the aforesaid circumstances and fact which, if would have been proved by evidence of prosecution, certainly they on being taken in totality would have formed a complete unbreakable sequence of circumstances leading to suggest the guilt of accused exclusively.
94. The learned Government Advocate harangued justifying the impugned judgment of learned Trial Court recording conviction on the basis of circumstantial evidence and the adverse inference drawn against the accused. According to him, there were sufficient evidence to prove the aforesaid circumstances forming chain of circumstances so as to suggest guilt of the accused, as on case diary the investigator (PW-8) has recorded Pre-trial evidence of witnesses under Section 161 Cr.P.C. which tend to prove the last seen evidence and appellant's leaving the house after incident in perplexed condition etc. We again noticed that no witness of pre-trial statements under Section 161 Cr.P.C. is produced before the trial Court to prove such fact. The statements recorded under Section 161 Cr.P.C. are not substantial evidence to be taken into reliance unless they are deposed by the maker their of in trial before the judge so as to testify and subjected to cross-examination for judging the veracity. Hon'ble the Supreme Court in R. Shaji Vs. State of Kerala(Supra) has held about the evidentiary value of such statements:-
26. "Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 CrPC, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 CrPC. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case."
In view of the above we do not have any reason to look into the Pre-trial recorded evidence of witnesses who are not produced before the trial court for examination on oath in evidence.
95. In a case of defective investigation before Hon'ble the Supreme Court, namely Suresh Vs. State of Haryana31 where the circumstantial evidence which was led had gaps in between, it was held :-
54. "From the aforesaid circumstances, we may note that the hypothesis canvassed by the prosecution cannot be said to have been proved beyond reasonable doubt as there exist apparent gaps in the prosecution story, which are left incomplete or insufficiently proved. In Latesh v. State of Maharashtra [Latesh v. State of Maharashtra, (2018) 3 SCC 66 : (2018) 2 SCC (Cri) 235 : AIR 2018 SC 659] , this Court had observed that: (SCC p. 83, para 46) "46. ... When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt."
56. We may note that every acquittal in a criminal case has to be taken with some seriousness by the investigating and prosecuting authorities, when a case of this nature is concerned. We are aware of the fact that there has been a death of a person in this incident and there is no finality to the aforesaid episode as it ends with various unanswered questions, which point fingers at the lack of disciplined investigation and prosecution. Although courts cannot give benefit of doubt to the accused for small errors committed during the investigation, we cannot however, turn a blind eye towards the investigative deficiencies which goes to the root of the matter."
96. We considered the reasoning given by learned trial judge for holding the accused-appellant guilty of committing murder on the basis of medical evidence, the testimonies of the complainant alongwith other prosecution witnesses and the adverse inference drawn from the absence of accused after the incident, not acceptable. The case is totally of circumstantial evidence but is foisted by the learned trial court as if a case of direct evidence, giving too much reliance on the evidence of PW-1, the complainant to whom we have held, 'not credible', in our earlier part of the judgment. It would be relevant to refer the golden rules of evidence that 'men may tell a lie, but the circumstances may not' which is squarely applicable in the instant case, therefore, we are unable to accept the narrative of the prosecution which stands on the complaint of Ram Gopal Verma as a gospel fruit. Thus the question no. (iii) & (iv) framed by us as point of determination in the appeal stand answered from the above discussion. Prosecution failed to prove it's case by producing best evidences without any justification. Further, the trial judge has misread the evidence on record and even omitted to read the evidence available on record. The impugned judgment is therefore suffering from material errors.
23. Examination of accused under Section 313 Cr.P.C., the Defence taken by the accused and explanation.
97. After recording the statements of prosecution witness the learned trial judge, in due discharge of it's mandatory duty, called the accused in person on 24.10.2016 under Section 313 (1) (b) of the Cr.P.C. to put before him every such pieces of evidence, which appears incriminatory and to seek his reply. The examination under this provision of the Cr.P.C. is a facultative examination which is done only after the cross-examination of witness is over. The outcome of the examination-in-chief and cross-examination of the prosecution witness with regard to a fact in issue or facts relevant thereto or as to surrounding circumstances relevant to the fact in issue are helpful not only for prosecution in proof of it's case as substantive evidence, but also for the accused, when any piece of such evidence lends support to his defence.
98. The appellant when was put the questions as to the evidence led in the trial with regard to his committing by administering poison, murder of his wife, son and mother for his alleged illicit relations with another woman, replied the same to be false implication made against him due to enimity. Likewise, he pleaded want of knowledge, when was asked about the evidence as to the death of the victims by poison and with regard to postmortem and viscera report. He answered to the questions relating to the FIR lodged by PW-1 registered by PW-6, investigation by PW-8, by saying that all are fictitious and fabricated for false implication. Lastly, when asked whether he want to say anything more, he replied 'yes' and stated in defence that he is falsely implicated by his father in law due to enimity. He further stated that on the relevant time of incident, he was in Delhi at the residence of his sister.
99. So far as the plea of the accused to be in Delhi at the time of incident is concerned it amounts 'plea of alibi'. The defence of false implication on the ground of enimity hatched by the complainant Ram Gopal Verma, as we have discussed earlier is proved by prosecution evidence itself. The evidence of PW-8 and PW-1 both tend to show that since a day back from the date of incident the appellant was not in 'Tanda' as he gone to Delhi. Therefore, both the defences taken by the accused has sufficiently been established from the prosecution evidence on record. The prosecution was heavily burdened to prove that the appellant was present in Tanda particularly in his house at the relevant date and time of the incident, which it could not prove by it's witnesses. This is a fact inconsistent with the fact in issue i.e. murder of victims by the accused committed in his house by giving them poison.
100. In the case of Binay Kumar Singh Vs. State of Bihar32, Hon'ble the Supreme Court observed with regard to plea of alibi as under:-
22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 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. Illustration (a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But 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 scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v.State of U.P. [(1981) 2 SCC 166 : 1981 SCC (Cri) 379] ; State of Maharashtrav. Narsingrao Gangaram Pimple [(1984) 1 SCC 446 : 1984 SCC (Cri) 109 : AIR 1984 SC 63] .
101. In Jumni and others Vs. State of Haryana33, Hon'ble the Supreme Court held that it is not as if the accused person is required to prove his innocence, in fact, it is for the prosecution to prove his guilt. It was further held in this case that:-
20. "It is no doubt true that when an alibi is set up, the burden is on the accused to lend credence to the defence put up by him or her. However, the approach of the court should not be such as to pick holes in the case of the accused person. The defence evidence has to be tested like any other testimony, always keeping in mind that a person is presumed innocent until he or she is found guilty."
102. In State of Kerala Vs. Anilachandran @ Madhu & Ors.(Supra), Hon'ble the Supreme Court held that:-
15. "The High Court has noticed that the crime was not committed in the manner as suggested by the prosecution and the genesis of the incident is not established. Even if a plea of alibi is set up by the accused and is discarded, that does not take away the duty of the prosecution to prove beyond reasonable doubt that the accused persons were guilty. It is certainly the duty of the persons who plead an alibi to prove it beyond reasonable doubt. Merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him."
The learned trial Court has recorded it's observation in the judgment as to the failure of accused to prove that he was in Delhi at the relevant time of incident. On the basis of discussions made hereinabove, we hold the said observation in the light of evidences on record and facts of the case absolutely wrong and absurd, because it was the prosecution who had strict burden to prove the presence of accused in the house of incident on the relevant date and time of incident. The prosecution failed to discharge it's primary burden of proof under Section 101 of the Evidence Act, 1872.
103. The learned trial judge in the context of two proved facts, namely the death of the victims in dwelling house and cause of death being the administration of poison, has put the burden of explanation as to how the incident took place, on the appellant, by applying Section 106 of the Evidence Act, 1872. In doing so, learned trial judge failed to appreciate the evidence led by the prosecution that it has not discharged it's primary burden to prove the fact that the appellant was present at the relevant day and time of incident in the house of incident alongwith the deceased when they were alive. The learned trial judge though relied on the judgment delivered by Hon'ble the Apex Court in Trimukh Maroti Kirkan Vs. State of Maharashtra (Supra) but did not go through the rule of last seen evidence enshrined in it's para (22) which is as under:-
22. "Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of H.P. [(1972) 2 SCC 80 : 1972 SCC (Cri) 635 : AIR 1972 SC 2077] it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v.State of Maharashtra [(1992) 3 SCC 106 : 1993 SCC (Cri) 435] the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v.Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 : AIR 1992 SC 2045] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran [(1999) 8 SCC 679 : 2000 SCC (Cri) 40] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."
104. There are three cardinal principles of criminal jurisprudence:-
(I) Right to fair trial as enshrined in Article 21 of Constitution of India.
(II) Presumption of innocence of the accused.
(III) Standard of proof which is beyond reasonable doubt in a criminal case.
Much has been discussed by us in the earlier part of the judgment about the right to fair trial and standard of proof beyond reasonable doubt in a criminal case. The general principle regarding the presumption of innocence of accused is reiterated by Hon'ble the Supreme Court in the case of Prem Kumar Gulati Vs. State of Haryana34, it is held that:-
15. "In Kali Ram v. State of H.P. [(1973) 2 SCC 808 : 1973 SCC (Cri) 1048 : AIR 1973 SC 2773], a three-Judge Bench of this Court elaborately discussed the mode of appreciation of evidence and the general principles regarding presumption of innocence of the accused. The Bench observed: (SCC pp. 820 & 821, paras 25 & 27) "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As mentioned by us recently in State of Punjab v. Jagir Singh [(1974) 3 SCC 277 : 1973 SCC (Cri) 886] a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
* * *
27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether.
105. On the basis of discussions made above, we are of considered opinion that in the instant case when the prosecution has failed to discharge it's initial burden to prove the fact primarily required to be proved necessarily for the application of Section 106 of the Evidence Act, 1872, the trial judge has erred in seeking explanation with regard to the fact how the victims died in the dwelling house by administration of poison. On the failure of prosecution to prove it's case beyond all reasonable doubt, the trial judge was in error to record conviction only on speculation, inferences and suspicion. At this juncture of discussions, it would be relevant to refer the judgment of Hon'ble the Supreme Court in the case of Jose @ Pappachan Vs. Sub Inspector of Police, Koyilandy and another(Supra). Where in the trial for murder, the wife was strangulated to death by husband and then hanged in his house. However, in the absence of any persuasive evidence to hold, that at the relevant time, appellant was present in his house, it is impermissible to cast any burden on him under Section 106 of the Evidence Act. It is held:-
52. "The evidence of the eyewitnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to accompany DW 1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW 1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant."
Further, it is held that how so ever strong may be the suspicion it can not take place of proof:-
56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.
58. inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise The Law of Evidence, 5th Edn. by Ian Dennis at p. 445:
"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt."
59. The above quote thus seemingly concedes a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction.
61. Addressing this aspect, however, is the following extract also from the same treatise The Law of Evidence, 5th Edn. by Ian Dennis at p. 483:
"Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not "merely fanciful", it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure.
The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the factfinder believes is "probably" guilty, or "likely" to be guilty will be acquitted, since these judgements of probability necessarily admit that the factfinder is not "sure". It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the "beyond reasonable doubt" standard against wrongful conviction."
63. As recent as in Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] , this Court also in the contextual facts constituting circumstantial evidence ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.
106. In the backdrop of above discussions we once again revert to the argument of learned Government Advocate justifying the order of conviction despite of the fact the same is passed in utter ignorance of the lapses, skipping of procedure and defective investigation done by the investigating agency in the instant case which created such large vacuums and holes in the prosecution case which become unrepairable. Though in Sheo Shankar Singh Vs. State of Jharkhand and anothers35, it is held:-
54. "..........Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case."
Hon'ble the Supreme Court has again in the case of Surajit Sarkar Vs. State of West Bengal36, has addressed the issue and held that:-
49. "We are not prepared to accept as a broad proposition of law that in no case can defective or shoddy investigations lead to an acquittal. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said."
107. The aforesaid view of Hon'ble the Supreme Court has again reflected in the case of Suresh Vs. State of Haryana(Supra), it is held that:-
54. From the aforesaid circumstances, we may note that the hypothesis canvassed by the prosecution cannot be said to have been proved beyond reasonable doubt as there exist apparent gaps in the prosecution story, which are left incomplete or insufficiently proved. In Latesh v. State of Maharashtra [Latesh v. State of Maharashtra, (2018) 3 SCC 66 : (2018) 2 SCC (Cri) 235 : AIR 2018 SC 659] , this Court had observed that: (SCC p. 83, para 46) "46. ... When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense. The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis. Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt."
55. In view of this proposition, we accept that there is no direct evidence which led the prosecution to clearly prove that the deceased was shot at Adarsh Nagar in Hisar. Even the circumstantial evidence which is led, has gaps in between. In the narration above, there is a big hiatus between the time the accused left the village and the appellant-accused were seen in the hospital, at Hisar. Neither the intermediate facts are established with certainty, nor is the case as a whole established beyond reasonable doubt.
56. We may note that every acquittal in a criminal case has to be taken with some seriousness by the investigating and prosecuting authorities, when a case of this nature is concerned. We are aware of the fact that there has been a death of a person in this incident and there is no finality to the aforesaid episode as it ends with various unanswered questions, which point fingers at the lack of disciplined investigation and prosecution. Although courts cannot give benefit of doubt to the accused for small errors committed during the investigation, we cannot however, turn a blind eye towards the investigative deficiencies which goes to the root of the matter.
58. We have considered the reasoning of the court below in this case, which we accept. Although this case was foisted to be a case of direct evidence, there is no credibility in the statements of the appellant-accused as the surrounding circumstances have shown, as already indicated in the earlier parts of the judgment, to be against them. We may note the golden rule of evidence that "men may tell a lie, but the circumstances do not", which is squarely applicable in this case at hand. Therefore, we cannot also accept the narrative of the appellant-accused in the other appeals, as a gospel truth.
108. We would not refrain ourselves from referring the decision of Hon'ble the Supreme Court which provides guidance as to the standard required when circumstantial evidence is made basis of the conviction and the approach required in appreciation of evidence by trial court. In the case of R. Shaji Vs. State of Kerala(Supra). It is held that:-
40. It is a settled legal proposition that the conviction of a person accused of committing an offence is generally based solely on evidence that is either oral or documentary, but in exceptional circumstances, such conviction may also be based solely on circumstantial evidence. For this to happen, the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice only to lend assurance to the court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability the said offence must have been committed by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] and Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : (2011) 1 SCC (Cri) 98] .)
61. Be that as it may, when a statement is recorded in court, and the witness speaks under oath, after he understands the sanctity of the oath taken by him either in the name of God or religion, it is then left to the court to appreciate his evidence under Section 3 of the Evidence Act. The Judge must consider whether a prudent man would appreciate such evidence, and not appreciate the same in accordance with his own perception. The basis for appreciating evidence in a civil or criminal case remains the same. However, in view of the fact that in a criminal case, the life and liberty of a person is involved, by way of judicial interpretation, courts have created the requirement of a high degree of proof."
109. Again in Dharam Deo Yadav Vs. State of Uttar Pradesh37, Hon'ble the Supreme Court held that:-
15. "We have no eyewitness version in the instant case and the entire case rests upon the circumstantial evidence. Circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343 : 1953 Cri LJ 129] , this Court held as follows: (AIR pp. 345-46, para 10) "10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eyewitness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, the accused may be convicted on the basis of such circumstantial evidence."
110. In Tanviben Pankajkumar Divetia Vs. State of Gujarat38, Hon'ble the Supreme Court has held that:-
44. "The Court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of the Code of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In this connection, reference may be made to the decision of this Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35 : 1981 SCC (Cri) 315 : AIR 1981 SC 765] .
45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. (Jaharlal Das v. State of Orissa [(1991) 3 SCC 27 : 1991 SCC (Cri) 527] )
46. We may indicate here that more the suspicious circumstances, more care and caution is required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court."
24. Death Sentence
111. Amazing enough, the learned trial judge in the instant case which is based solely on circumstantial evidence and the prosecution remained unsuccessful in proving it's case beyond all reasonable doubt, instead of recording acquittal, not only recorded conviction on the basis of erroneously drawn adverse inference of guilt has also awarded him sentence of capital punishment "the Death Penalty". Before proceeding with discussion on the issue of justification of 'Death penalty', we would think it relevant to state what we noticed about the authoring of the impugned judgment. The arguments and rival contentions alongwith the reference of the judgments of Hon'ble the Supreme Court are cited, but so far as the conclusion is concerned that is recorded abruptly without recording logical and sound reasons. In Main Pal and another Vs. State of Haryana and others,39 it is held that:-
10. "On a bare perusal of the trial court's judgment one thing is patently noticeable. The trial court has merely referred to the arguments advanced and has then come to abrupt conclusions without even indicating any plausible or relevant reasons therefor. Merely coming to a conclusion without any objective analysis relating to acceptability or otherwise of the rival stands does not serve any useful purpose in adjudicating a case. The trial court was required to analyse the evidence, consider the submissions and then come to an independent decision after analysing the evidence, the submissions and the materials on record. Since the trial court had not pragmatically analysed the evidence, and had given abrupt conclusions, that itself made the judgment vulnerable. Further, several aspects which the trial court found to be of significance were really arrived at hypothetically and on surmises. Merely because the evidence of PW 2 shows that he acted in an unnatural manner, that per se would not be a determinative factor to throw out the otherwise cogent prosecution evidence. The High Court on the other hand has considered in great detail the evidence of the witnesses. It has come to a positive finding that PW 1 was in a position to identify the accused persons. Some of the pleas now advanced were also not taken up before the courts below, for example, non-examination of the pellets/wads by the Forensic Science Laboratory. On considering the evidence on record, pragmatically one thing is clear that the High Court after analysing the evidence in great detail, was justified in treating the trial court's judgment to be practically unreasoned.
25. Justification of Death Penalty
112. Hon'ble the Supreme Court considering the law laid down in Machhi Singh and others Vs. State of Punjab40 and in Bachan Singh Vs. State of Punjab41 has reiterated in the case of Shivaji Vs. State of Maharashtra alias Dadya Shankar Alhat Vs. State of Maharashtra42. Hon'ble the Supreme Court has discussed the proportionality object and considerations involved in awarding Death sentence in para 25 & 26, which are quoted as under:-
25. "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ''order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: ''State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Maheshv. State of M.P. [(1987) 3 SCC 80 : 1987 SCC (Cri) 379 : (1987) 2 SCR 710] , this Court while refusing to reduce the death sentence observed thus: (SCC p. 82, para 6) ''[I]t will be a mockery of justice to permit these appellants [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.'
10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471 : 1991 SCC (Cri) 724 : AIR 1991 SC 1463]
11. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.
12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
13. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated inDennis Councle McGautha v. State of California [402 US 183 : 28 L Ed 2d 711 (1970)] : that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
14. In Jashubha Bharatsinh Gohil v. State of Gujarat [(1994) 4 SCC 353 : 1994 SCC (Cri) 1193] it has been held by this Court that in the matter of death sentence, the courts are required to answer new challenges and mould the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Even though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.
15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
16. In Dhananjoy Chatterjee v. State of W.B. [(1994) 2 SCC 220 : 1994 SCC (Cri) 358] this Court has observed that a shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate, making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the court responds to the society's cry for justice against the criminal. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
17. Similar view has also been expressed in Ravji v. State of Rajasthan[(1996) 2 SCC 175 : 1996 SCC (Cri) 225] . It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ''respond to the society's cry for justice against the criminal'. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance."
These aspects have been elaborated in State of M.P. v. Munna Choubey [(2005) 2 SCC 710 : 2005 SCC (Cri) 559] , SCC pp. 714-17, paras 9-17.
26. "5. In Bachan Singh v. State of Punjab [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] a Constitution Bench of this Court at para 132 summed up the position as follows: (SCC p. 729) ''132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners' argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware--as we shall presently show they were--of the existence of death penalty as punishment for murder, under the Penal Code, if the thirty-fifth Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new Sections 235(2) and 354(3) in that Code providing for pre-sentence hearing and sentencing procedure on conviction for murder and other capital offences were before Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in Section 302, Penal Code is unreasonable and not in the public interest. We would, therefore, conclude that the impugned provision in Section 302, violates neither the letter nor the ethos of Article 19."
6. Similarly, in Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] in para 38 the position was summed up as follows: (SCC p. 489) ''38. In this background the guidelines indicated in Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] :
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the "offender" also require to be taken into consideration along with the circumstances of the "crime".
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.'
7. The position was again reiterated in Devender Pal Singh v. State of NCT of Delhi [(2002) 5 SCC 234 : 2002 SCC (Cri) 978] : (SCC p. 271, para 58) ''58. From Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] the principle culled out is that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, the same can be awarded. It was observed:
The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.' If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
8. What is culled out from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up." [Ed.: As observed in Union of India v. Devendra Nath Rai, (2006) 2 SCC 243 at pp. 247-49, paras 5-8.]
113. In the backdrop of the discussions made above, we are of considered opinion that the judgment regarding conviction of the accused, impugned in Criminal Appeal No.358 of 2017 is not sustainable in the eye of law and therefore, is liable to be set aside. Consequent thereupon, the sentence of death punishment awarded to the appellant is also liable to be reversed.
114. The prosecution has failed to prove it's case beyond all reasonable doubt, the appellant is entitled to be given benefit of doubt and as such, deserves to be acquitted of the charges leveled against him.
Order A) The Criminal Appeal No.358 of 2017 is allowed.
B) The judgment of the trial court passed in Sessions Trial No.213 of 2013 arising out of Case Crime No.61 of 2013 under Section 302 I.P.C. registered at Police Station Kotwali Tanda, District Ambedkar Nagar impugned in this Criminal Appeal No.358 of 2017 is set aside. The conviction is reversed. Consequent thereupon the appellant is acquitted of the charges leveled against him and the sentence of Death penalty awarded to him is reversed.
C) We have no occasion to confirm the death punishment as referred in the Capital Sentence reference case no.1 of 2017 because the judgment of conviction has already been ordered by us to be set aside. The move to get confirmation of Death sentence awarded to the appellant Ram Gopal Saini s/o Ram Naresh Saini r/o Mohalla Hayatganj, Police Station Kotwali Tanda, District Ambedkar Nagar in reference case no.1/2017 (Capital Sentence) is declined.
D) Copy of the order be sent to the Jail Superintendent of District Jail, Ambedkar Nagar for necessary compliance under intimation of the Court.
E) Copy of the order be also sent to the District Judge, Ambedkar Nagar for information and necessary action pursuant to the order passed by this Court in Criminal Appeal No. 358 of 2017 and Capital Punishment reference case No.1 of 2017 for necessary compliance under intimation to the Court.
F) The Deputy Registrar (Criminal) is directed to enter the judgment in compliance register maintained for the purpose in the Court and to intimate the compliance to the Court within a maximum period of 10 days.
Order Date : 02/06/2020 Saurabh [Vikas Kunvar Srivastav, J.] [Ritu Raj Awasthi, J.] Topical Index Sl. No. Topic Page No. 1. Facts of the case 02 2. Charge and evidences in trial 05 3. A summary of the impugned judgment 08 4. Rival contentions in appeal Arguments by learned counsel for appellant Sri Nagendra Mohan, Advocate 11 5. Arguments by learned Government Advocate Sri Vimal Prakash, Advocate. 14 6. Conspectus of circumstances 19 7. Deficiency, omissions and lapses on the investigation 23 8.
Delayed recording of Pre-trial statement of witness by the Investigating Officer 34
9. How the appellant is arraigned in the matter of murder of his own mother, wife and son by administering them poison 37
10.
"Ram Gopal Verma the Complainant"41
11. Conduct of the witness PW-1 45
12. Ram Gopal Verma (PW-1) and other witnesses of fact (PW-2 to PW-5) 46
13. Motive 48
14. Death by poison 52
15. Post mortem report and viscera case report 54
16. Nature and general use of ALP 59
17. The time of death 64
18. Who administered the poison?
6719. Circumstantial evidences 67
20. Last seen evidence 68
21. Evidentiary value of witness who turned hostile 72
22. Conviction based on circumstantial evidence 76
23. Examination of accused under Section 313 Cr.P.C., the Defence taken by the accused and explanation.
8324. Death Sentence 99
25. Justification of Death penalty 100 Index of references and citations Sl. No. Ruling (Citation) Pg. No.
1. Sharad Birdhchand Sarda Vs. State of Maharashtra [(1984) 4 Supreme Court Cases 116] 09, 62, 68, 69
2. Dhan Raj @ Dhand Vs. State of Haryana [(2014) 6 Supreme Court Cases 745] 09
3. Gargi Vs. State of Haryana [(2019) 9 Supreme Court Cases 738] 13, 49
4. State of Kerala Vs. Anilachandran @ Madhu & ors. [(2009) 13 Supreme Court Cases 565] 14, 85
5. Jose @ Pappachan Vs. Sub Inspector of Police Koyilandy & Another [(2016) 10 Supreme Court Cases 519] 14, 91
6. Kalu @ Laxminarayan Vs. State of M.P. [(2019) 10 Supreme Court Cases 211] 17
7. Trimukh Maroti Kirkan Vs. State of Maharashtra [(2006) 10 Supreme Court Cases 681] 17, 86
8. Mulakh Raj etc. Vs. Satish Kumar and others [All India Reporter 1992 Supreme Court 1175] 17
9. Phula Singh Vs. State of Himachal Pradesh, [(2014) 4 Supreme Court Cases 9] 17
10. Jai Narain and others Vs. State of Uttar Pradesh, [(2003) Criminal Law Journal 168] 17
11. Vijay Pal Vs. State (Government of NCT of Delhi [(2015) 4 Supreme Court Cases 749] 18
12. Mukesh and another Vs. State (NCT of Delhi) & others [(2017) 6 Supreme Court Cases 1] 18
13. Swamy Shraddananda @ Murli Manohar Mishra Vs. State of Karnataka [(2007) 12 Supreme Court Cases 288] 21
14. Jahira Habibulla H. Sheikh and another Vs. State of Gujarat & others [(2004) 4 Supreme Court Cases 158] 24
15. Ramesh Kumari Vs. State (NCT of Delhi) & other [(2006) 2 Supreme Court Cases 677] 27
16. Ram Das & Ors. Vs. State of Maharashtra [(2007) 2 Supreme Court Cases 170] 33
17. Ganesh Bhavan Patel Vs. State of Maharashtra [(1978) 4 Supreme Court Cases 371] 37
18. K. Veeraswami Vs. Union of India and others [(1991) 3 Supreme Court Cases 655] 39, 41
19. State of Rajasthan Vs. Kalki [(1981) 2 Supreme Court Cases 752] 43
20. Raju Vs. State of T.N. [(2012) 12 Supreme Court Cases 701] 43
21. Vijendra Singh Vs. State of U.P. [(2017) 11 Supreme Court Cases 129] 44
22. Ramashish Rai Vs. Jagdish Singh [All India Reporter 2005 Supreme Court 335, (2005) 10 Supreme Court Cases 498] 44
23. Kirti Pal Vs. State of West Bengal with Durga Sutradhar Vs. State of West Bengal & ors [(2015) 11 Supreme Court Cases 178] 50
24. Treatment of Aluminum Phosphide Poisoning with a combination of Intravenous Glucaon, Digoxin and Antioxidant Agents" by 'Zohreh Oghabian' and 'Omid Mehrpour 59
25. Virendra @ Buddhu and ors. Vs. State of U.P. [(2008) 16 Supreme Court Cases 582] 65
26. Bodhraj @ Bodha and ors. Vs. State of Jammu & Kashmir [(2002) 8 Supreme Court Cases 45] 70
27. T. Shankar Prasad Vs. State of A.P. [(2004) 3 Supreme Court Cases 753] 73
28. State of U.P. Vs. Ramesh Prasad Misra & Anr. [(1996) 10 Supreme Court Cases 360] 73
29. Himanshu @ Chintu Vs. State (NCT of Delhi) [(2011) 2 Supreme Court Cases 36] 73
30. R. Shaji Vs. State of Kerala [(2013) 14 Supreme Court Cases 266] 76, 81, 96
31. Suresh Vs. State of Haryana [(2018)18 Supreme Court Cases 654] 81, 95
32. Binay Kumar Singh Vs. State of Bihar [(1997) 1 Supreme Court Cases 283] 84
33. Jumni and others Vs. State of Haryana, [(2014) 11 Supreme Court Cases 355] 85
34. Prem Kumar Gulati Vs. State of Haryana [(2014) 14 Supreme Court Cases 646] 88
35. Sheo Shankar Singh Vs. State of Jharkhand and anothers [(2011) 3 Supreme Court Cases 654] 94
36. Surajit Sarkar Vs. State of West Bengal [(2013) 2 Supreme Court Cases 146] 94
37. Dharam Deo Yadav Vs. State of Uttar Pradesh [(2014) 5 Supreme Court Cases 509] 97
38. Tanviben Pankajkumar Divetia Vs. State of Gujarat [(1997) 7 Supreme Court Cases 156] 98
39. Main Pal and another Vs. State of Haryana and others, [(2004) 10 Supreme Court Cases 692] 100
40. Machhi Singh and others Vs. State of Punjab [(1983) 3 Supreme Court Cases 470] 100
41. Bachan Singh Vs. State of Punjab [(1980) 2 Supreme Court Cases 684] 100
42. Shivaji Vs. State of Maharashtra alias Dadya Shankar Alhat Vs. State of Maharashtra [(2008) 15 Supreme Court Cases 269] 100