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Sunday, April 12, 2015

In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of Andhra Pradesh[10]]. In the case at hand, it had come in the evidence that the accused-appellant was suspicious of the illicit relationship between the deceased and his wife. The accused has taken the plea that he was never married. It is noteworthy that the materials brought on record go a long way to show that after the death of his brother he had entered into the wedlock with his sister-in-law as per the tradition of the community, that is, 'Kareva' marriage. The said facet of evidence has really not been assailed or shaken. Thus, it has been established that there was suspicion by the accused that the deceased was having relationship with his brother's wife and that had aroused his anger. The said motive further strengthens the case of the prosecution.

                       CRIMINAL APPEAL NO. 486 OF 2010

Raja @ Rajinder                              ... Appellant
State of Haryana                             ... Respondent

                               J U D G M E N T

Dipak Misra, J.

      The present appeal is directed against the judgment  and  order  dated
7.09.2009 of the High Court of Punjab and Haryana at Chandigarh in  Criminal
Appeal No. 770-DB of 2006, whereby the  Division  Bench  has  confirmed  the
judgment  of  conviction  and  order  of  sentence  passed  by  the  learned
Additional  Sessions  Judge,  Sirsa  in  Sessions  Case  No.  357  of   2003
convicting the present appellant for the offences punishable under  Sections
302 and Section 201 read with Section 34 of the Indian Penal Code (IPC)  and
sentencing him to suffer rigorous imprisonment for life and payment of  fine
of Rs.5000/- under Section 302 and rigorous imprisonment of three years  and
fine of Rs.1000/- under Section 201 read with Section 34  IPC  with  default
clause for the fine  amount  in  respect  of  both  the  offences  with  the
stipulation that both the sentences would be concurrent.
2.    Bereft of unnecessary details,  the  prosecution  case,  as  has  been
unfurled is that on 18.1.2003 about 6.30 p.m., Het Ram,  the  deceased,  had
left his home with  the  accused-appellant  and  did  not  return  till  the
morning of 19.1.2003.  The family members of the deceased searched  for  him
at various places and made enquiries from the relations  but  despite  their
best efforts, he could not be found.  In  course  of  that  enquiry  it  was
revealed by the owner of a tea-stall that on 18.01.2003 about 8.30 p.m.  the
appellant and the deceased had taken tea together and  thereafter  they  had
left that place.  Being so informed by the tea stall owner,  Subhash,  PW-8,
brother of the deceased along with Pala Ram and Ramesh went to the house  of
the accused-appellant, and came to learn from his father Krishan Kumar,  the
co-accused, that Raja had gone to village Kharia but could not be  contacted
as the telephone number of village Kharia was  out  of  order.   Thereafter,
Subhash, PW-8, the informant returned to his house  and  waited  till  night
for the return of Het Ram.  When the  deceased  did  not  come  till  night,
Subhash along with his  relations  again  proceeded  to  the  house  of  the
appellant who was present in the house, and informed them that in the  night
of 18.01.2003 he and the deceased had taken tea together but when they  were
returning to their houses, a Sikh boy met them and Het Ram  went  with  that
boy on his motor cycle.   After  getting  the  said  information,  when  the
informant and others were returning from the  house  of  the  accused,  they
noticed blood stains in the street in front  of  the  houses  of  Mohan  and
Mahender Singh. It aroused suspicion  of  the  informant  that  his  brother
might have been murdered by the appellant and the dead body could have  been
disposed of.  The motive behind the incident, as  mentioned,  was  that  the
appellant was indulged in  consuming  poppy  husk  and  the  father  of  the
appellant had a suspicion that the deceased was instrumental in  making  his
son a drug addict.  On the basis of the aforesaid allegations,  an  FIR  No.
45 dated 20.1.2003 was lodged  at  the  police  station  Rania.   After  the
criminal law was set in motion, the investigating agency went to  the  place
where blood stains were found and prepared the  site  plan  and  seized  the
bloodstained earth.  On the  next  day,  police  went  to  village  Bani  in
connection with the  investigation  and  blood  stains  were  found  on  the
stairs, platform and wall of a  well  situated  in  the  old  Abadi  of  the
village.  The police  collected  the  bloodstained  bricks  from  there  and
noticed a bundle inside the well and eventually recovered the dead  body  of
Het Ram which was found inside the said bundle.   The  investigating  agency
sent the dead body for  post-mortem  to  the  General  Hospital,  Sirsa  and
arrested the accused on 22.1.2003.  During the investigation  the  appellant
suffered disclosure statement, Exh. P. EE, to the effect that he  had  taken
Het Ram to the tea stall and thereafter to his 'Nohra' on a  false  pretext,
where he had caused a blow with a knife on the neck of Het Ram  about  10.00
P.M. on 18.01.2003.  Het Ram tried to escape but he chased him and when  the
deceased fell down in front of the house of  Mahender  Singh,  he  inflicted
several blows with the knife on the  chest  and  the  waist  region  of  the
deceased. Being unable to drag the dead body back to his courtyard, he  took
the help of his father for the disposal of the body.  The  blanket  worn  by
the deceased was burnt in the courtyard of the appellant.   Thereafter,  the
bloodstained clothes of the appellant and the knife were  recovered  by  the
police from the pit of latrine on the basis of the statement of the accused-
appellant. The parcels of bloodstained earth, bloodstained  clothes  of  the
accused and the deceased, the seized knife and other materials were sent  to
the Forensic Science Laboratory, Madhuban, for examination and  the  report,
Exhibit P.RR, was received by the prosecution.   During  the  investigation,
statement of Sukha, PW-7, was recorded on 21.1.2003 wherein  he  had  stated
that the deceased was  murdered  by  the  appellant  as  the  appellant  was
suspicious that  the  deceased  had  illicit  relationship  with  his  wife.
Similar statement was also made by Nanak, PW-9.  The  investigating  officer
recorded  statement  of  number  of  witnesses  and  after  completing   the
investigation, placed the chargesheet against the accused-appellant for  the
offences punishable under Sections 302 and 201 read  with  Section  34  IPC.
The co-accused, Krishan Kumar,  was  chargesheeted  for  the  offence  under
Sections 201 read with Section 34 IPC.   After  the  chargesheet  was  laid,
the competent court committed the matter to the court of Session for  trial.
 The accused pleaded not guilty and claimed to be tried.
3.    The prosecution in order to substantiate the charges levelled  against
the accused persons  examined  as  many  as  13  witnesses.   The  principal
witnesses are Dr. N.K. Mittal, PW-1, who had conducted  the  post-mortem  on
the dead body of the deceased, Sukha, PW-7, Subhash, PW-8,  the  brother  of
the deceased and the informant, Nanak, PW-9, Mahender, PW-10, who  had  seen
the deceased and the appellant having tea together  in  the  tea  stall  and
Kalawati, PW-11, mother of the  deceased  who  had  witnessed  the  deceased
leaving the house in the company of the accused-appellant.
4.    The accused persons in  their  statements  u/s  313  of  the  Code  of
Criminal  Procedure  (CrPC)  denied  the  allegations  and   pleaded   false
implication.  They claimed that accused-Raja was neither married  to  anyone
nor addicted to opium and, therefore,  the  alleged  motive  to  commit  the
murder of Het Ram was totally baseless.  They  further  denied  having  made
any disclosure statements to the police  and  stated  that  the  police  had
planted articles to  create  evidence  against  the  accused.   The  accused
persons chose not to adduce any evidence in their defence.
5.    The learned trial Judge, on the  basis  of  the  material  brought  on
record, came to hold that the whole case rested on  circumstantial  evidence
and the prosecution had been able to establish  the  chain  in  completeness
against the accused persons and accordingly convicted the appellant and  his
father  and  sentenced  them,  as  has  been  stated  hereinbefore.    Being
dissatisfied, the appellant  and  his  father  had  preferred  the  criminal
appeal wherein the High Court had affirmed the conviction  and  sentence  of
the appellant but as far as his father, Krishan Kumar, is  concerned,  while
maintaining the conviction, modified the sentence of Krishan  Kumar  imposed
by the trial Judge  and  restricted  it  to  the  period  already  undergone
without interfering with the quantum of fine.  The present appeal  has  been
preferred by Raja assailing his conviction and sentence.
6.    We have heard Mr. M.M. Kashyap, learned counsel for the appellant  and
Mr. Vikas Sharma, learned counsel for the State.
7.    As the  factual  matrix  would  show,  the  case  of  the  prosecution
entirely  hinges  on  circumstantial  evidence.   When  a  case   rests   on
circumstantial  evidence,  the  Court  has  to   be   satisfied   that   the
circumstances from which an inference of guilt is sought to be  drawn,  must
be cogently and firmly established;  those  circumstances  should  be  of  a
definite tendency unerringly pointing towards  guilt  of  the  accused;  the
circumstances, taken cumulatively, should form  a  chain  so  complete  that
there is no escape from the conclusion that  within  all  human  probability
the  crime  was  committed  by  the  accused  and   none   else;   and   the
circumstantial evidence in order to sustain conviction must be complete  and
incapable of explanation of any other hypothesis than that of the  guilt  of
the accused and such evidence should not only be consistent with  the  guilt
of the accused but should be inconsistent with his  innocence.  [See  Padala
Veera Reddy v. State of A.P.[1]]
8.    In Balwinder Singh v. State of Punjab[2], it has been laid down  that:

      "..... the circumstances from which the conclusion of guilt is  to  be
      drawn  should  be  fully  proved  and  those  circumstances  must   be
      conclusive in nature to connect the accused with the  crime.  All  the
      links in the chain of events must be established beyond  a  reasonable
      doubt and the established circumstances should be consistent only with
      the hypothesis of the guilt of the accused  and  totally  inconsistent
      with his innocence. In a case based on  circumstantial  evidence,  the
      court has to be on its guard to avoid the danger of allowing suspicion
      to take the place of legal proof and has to be watchful to  avoid  the
      danger of being swayed by emotional considerations,  howsoever  strong
      they may be, to take the place of proof."

9.    From the aforesaid it is clear as day that the Court  is  required  to
evaluate the circumstantial evidence to see that the chain  of  events  have
been  established  clearly  and  completely  to  rule  out  any   reasonable
likelihood of the innocence of the accused.  Needless  to  say  whether  the
chain is complete or not would depend on the facts of  each  case  emanating
from the evidence and no universal yardstick should ever be  attempted  [See
Ujjagar Singh v. State of Punjab[3]].
10.   In the instant case, the circumstances that have been  established  by
the  prosecution  are  that  the  deceased  had  accompanied  the   accused-
appellant, being called by him, from his house in  the  early  part  of  the
evening on the date of occurrence.  The mother of  the  deceased,  Kalawati,
PW-11, has deposed in that regard.  Thereafter, from  the  material  brought
on record, it is clearly revealed that the appellant was  seen  at  the  tea
stall with the deceased.  The said fact has been deposed  by  Mahender,  PW-
10.  Thus, from the aforesaid evidence, two facts are  established,  namely,
the accused and the deceased had left the house of  the  deceased  and  were
seen taking tea together at the tea stall.  It is submitted by  the  learned
counsel for the appellant that the last  seen  theory  as  advanced  by  the
prosecution is not acceptable inasmuch as the owner of  the  tea  stall  has
not been examined.  When  the  testimony  of  the  aforesaid  two  witnesses
deserve acceptance and receive corroboration from the other evidence on  the
record, no adverse inference should be drawn because of  non-examination  of
the tea stall owner, who, as has been submitted by the learned  counsel  for
the appellant, is a material witness.  It is well settled in law  that  non-
examination of  a  material  witness  is  not  a  mathematical  formula  for
discarding the weight of the testimony available on record, if the  same  is
natural, trustworthy and convincing [See State of H.P.  v.  Gian  Chand[4]].
That apart, he was not such a witness who alone was  the  competent  witness
to depose about a fact and his  non-examination  would  really  destroy  the
version of the prosecution.
11.   Another reason for acceptance of the last  seen  theory  is  that  the
brother of the deceased, Subhash, PW-8, has testified that he  had  enquired
from the accused as  regards  the  whereabouts  of  the  deceased,  for  the
deceased had accompanied the accused and at that juncture  the  accused  had
replied that at the tea stall a Sikh boy came and  the  deceased  went  with
him.  As per the prosecution case, the deceased  and  the  accused  are  co-
villagers.  In his statement recorded under Section 313 CrPC,  the  accused-
appellant totally denied to have accompanied the  deceased.   Learned  trial
Judge and the High Court  have  placed  reliance  on  the  evidence  of  the
mother, Kalawati, PW-11, the brother, Subhash,  PW-8  and  Mahender,  PW-10.
The cumulative reading  and  apposite  appreciation  of  the  said  evidence
proves beyond reasonable doubt that the deceased  was  last  seen  with  the
12.   Another circumstance that has been proven is  about  the  recovery  of
knife, blood-stained clothes and  the  ashes  of  the  burnt  blanket.   The
seizure witnesses Sukha, PW-7 and Nanak, PW-9 have proven the  seizure.   It
is submitted by the learned  counsel  for  the  appellant  that  police  had
recorded the confessional statement of the accused-appellant at  the  police
custody and thereafter, as  alleged,  had  recovered  certain  things  which
really do not render any assistance to the prosecution, for  the  confession
recorded before  the  police  officer  is  inadmissible.   That  apart,  the
accused had advanced the plea that the articles and the weapon were  planted
by the investigating agency.  To appreciate the said  submission  in  proper
perspective, we may profitably reproduce a passage from  State  of  U.P.  v.
Deoman Upadhyaya[5]:
      "The expression, 'accused of any offence' in Section 27, as in Section
      25, is also descriptive of the person concerned i.e. against a  person
      who is accused of an offence,  Section  27  renders  provable  certain
      statements made by him while  he  was  in  the  custody  of  a  police
      officer. Section 27 is founded on the principle that even  though  the
      evidence relating to  confessional  or  other  statements  made  by  a
      person, whilst he is in the custody of a police  officer,  is  tainted
      and therefore inadmissible, if the truth of the information  given  by
      him is assured by the discovery of a fact, it may be  presumed  to  be
      untainted and is therefore declared provable insofar as it  distinctly
      relates to the fact thereby discovered. Even though Section 27  is  in
      the form of  a  proviso  to  Section  26,  the  two  sections  do  not
      necessarily deal with the evidence of  the  same  character.  The  ban
      imposed by Section 26 is against the proof of confessional statements.
      Section 27 is concerned with  the  proof  of  information  whether  it
      amounts to a confession or not, which leads to discovery of facts.  By
      Section 27, even if a fact is deposed to as discovered in  consequence
      of  information  received,  only  that  much  of  the  information  is
      admissible as distinctly relates to the fact discovered."

13.    In  State  of  Maharashtra  v.  Damu[6],  while  dealing   with   the
fundamental facet of Section 27 of the  Evidence  Act,  the  Court  observed
that the basic idea embedded in  the  said  provision  is  the  doctrine  of
confession by subsequent events, which is founded on the principle  that  if
any fact is discovered in a search made on the strength of  any  information
obtained from  a  prisoner,  such  a  discovery  is  a  guarantee  that  the
information supplied by the prisoner is true. It  further  stated  that  the
information might be confessional or non-inculpatory in nature,  but  if  it
results in discovery of a  fact  it  becomes  a  reliable  information  and,
therefore,  the  legislature  permitted  such  information  to  be  used  as
evidence by restricting the admissible portion to the minimum.
14.   Thus, if an accused person gives  a  statement  that  relates  to  the
discovery of a fact in consequence  of  information  received  from  him  is
admissible.   The  rest  part  of  the  statement  has  to  be  treated   as
inadmissible.   In view of the same, the recovery made at  the  instance  of
the accused-appellant has been rightly accepted by the trial Court  as  well
as by the High Court, and we perceive no flaw in it.
15.   Another circumstance which has been taken note of by  the  High  Court
is that the blood-stained clothes and the weapon, the knife,  were  sent  to
the Forensic Science Laboratory.  The report obtained  from  the  Laboratory
clearly shows that blood stains were found on the  clothes  and  the  knife.
True it is, there has been no matching of the blood  group.   However,  that
would not make a difference in the facts of the present case.   The  accused
has not offered any explanation  how  the  human  blood  was  found  on  the
clothes and the knife.  In this regard,  a  passage  from  John  Pandian  v.
State[7] is worth reproducing:
      "The discovery appears to be credible. It has been  accepted  by  both
      the courts below and we find no reason to discard it.  This  is  apart
      [pic]from the fact that this weapon was sent to the  forensic  science
      laboratory (FSL) and it has  been  found  stained  with  human  blood.
      Though the blood group could not be ascertained, as the  results  were
      inconclusive, the accused had to give some explanation as to  how  the
      human blood came on this weapon. He gave none.  This  discovery  would
      very positively further the prosecution case."

      In view of the aforesaid,  there  is  no  substantial  reason  not  to
accept the recovery of the weapon used in the crime.   It  is  also  apt  to
note here that Dr. N.K. Mittal, PW-1, has clearly opined that  the  injuries
on the person of the deceased could be caused by  the  knife  and  the  said
opinion has gone unrebutted.
16.   Another circumstance which needs to be noted is that  Sukha,  PW-7,  a
taxi driver, has deposed that on 18.1.2003 about 11.00  p.m.  while  he  was
going to Fatehabad for taking passengers, he saw a bullock  cart  parked  in
front of the house of the accused and certain persons were  tying  a  bundle
in a "palli".  On query being made by him,  the  accused  persons  told  him
that they are carrying manure to  the  fields.   Though,  this  witness  has
given an exaggerated version  and  stated  differently  about  the  time  of
arrest, yet his testimony to the effect that he had seen the accused with  a
bundle in "palli" at a particular place cannot be  disbelieved.   The  maxim
"falsus in uno, falsus in omnibus", is not applicable in India.  In  Krishna
Mochi v. State of Bihar[8], it has been held thus:
      "The maxim falsus in uno, falsus in  omnibus  has  no  application  in
      India and the witnesses cannot be branded as liars. The  maxim  falsus
      in uno, falsus in omnibus (false in one thing,  false  in  everything)
      has not received general acceptance ... nor has  this  maxim  come  to
      occupy the status of the rule of law. It is merely a rule of  caution.
      All that it amounts to,  is  that  in  such  cases  testimony  may  be
      disregarded, and not that it must be disregarded."

17.   In Yogendera v. State of Rajasthan[9], it  has  been  ruled  that  the
Court must assess the extent to which the deposition of  a  witness  can  be
relied upon.  The court must make every attempt to separate falsehoods  from
the truth, and it must only be in  exceptional  circumstances,  when  it  is
entirely impossible to separate the grain from the chaff, for the  same  are
so inextricably intertwined, that the entire  evidence  of  such  a  witness
must be discarded.  Thus viewed, the version of PW-7 to the extent that  has
been stated hereinabove is totally acceptable and credible.
18.   In a case based on circumstantial evidence,  motive  assumes     great
significance as its existence is an enlightening  factor  in  a  process  of
presumptive reasoning [See Kundula Bala Subrahmanyam and Anr.  v.  State  of
Andhra Pradesh[10]].  In the case at hand, it had come in the evidence  that
the accused-appellant was suspicious of  the  illicit  relationship  between
the deceased and his wife.  The accused has  taken  the  plea  that  he  was
never married.  It is noteworthy that the materials brought on record  go  a
long way to show that after the death of his brother  he  had  entered  into
the wedlock with his sister-in-law as per the tradition  of  the  community,
that is, 'Kareva' marriage.  The said facet of evidence has really not  been
assailed or shaken.  Thus, it has been established that there was  suspicion
by the accused that the deceased was having relationship with his  brother's
wife and that had aroused his anger.  The said  motive  further  strengthens
the case of the prosecution.
19.    In view of the aforesaid analysis, we are of the  considered  opinion
that the appeal preferred by the appellant is totally devoid  of  merit  and
is accordingly dismissed.

                                                               (Dipak Misra)

                                             ..........................., J.
                                                     (N.V. Ramana)
New Delhi
April 10, 2015
[1]  1989 Supp (2) SCC 706
[2]  1995 Supp (4 SCC 259
[3]  (2007) 13 SCC 90
[4]  (2001) 6 SCC 71
[5]  AIR 1960 SC 1125
[6]  (2000) 6 SCC 269
[7]  (2010) 14 SCC 129
[8]  (2002) 6 SCC 81
[9]  (2013) 12 SCC 399
[10]  (1993) 2 SCC 684

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