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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 94-95 of 2011
Sanaullah Khan …… Appellant
Versus
State of Bihar …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal against the judgment dated
16.12.2009 of the Patna High Court in Death Reference
Case No. 1 of 2007 and Criminal Appeal (DB) No. 379 of
2007.
FACTS:
2. The facts very briefly are that a fardbeyan was
lodged on 17.12.2002 by one Sanju Kumar (hereinafter
referred to as Informant), resident of Village Mathura, P.S.Page 2
Bidupur, District Vaishali. In the fardbeyan, it was stated:
Father of the informant, namely Ravindra Prasad, was
running a tea stall near the Eastern gate of the GPO. For
the tea stall he required about 25 Litres of milk everyday
and this milk was being supplied by Sanaullah Khan, the
appellant herein, for about a month. Sanaullah Khan
started mixing water with the milk and the customers of
the tea stall started making complaints about the quality
of tea. On 02.12.2002 at about 2.00 p.m. Sanaullah Khan
along with Md. Hamid and Arvind came to the tea stall and
demanded the dues for the supply of milk. After
calculation it was found that the dues amounted to Rs.
1,000/- and Ravindra Prasad gave Sanauallah Khan Rs.
500/- and told him that the rest of the amount will be paid
later. Ravindra Prasad, however, informed Sanaullah Khan
that the milk supplied by him was not up to the mark and
therefore he will no longer purchase milk from his Khatal.
Sanaullah Khan got annoyed and told him that he will not
allow him to run the tea stall. Ravindra Prasad retorted
that he had seen many persons like him at his tea stall.
Sanaullah Khan said that he will have to face serious
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consequences and that he will teach him a lesson within
two to four days. Thereafter, Sanaullah Khan, Hamid and
Arvind went away. On 16.12.2002 at about 8.00 p.m.
Arvind, who was working with Sanaullah Khan came and
told Ravindra Prasad that his master was calling him for
some urgent work and Ravindra Prasad went along with
Arvind and did not return for an hour. Arvind again came
and told his brother Sunny Kumar, who was in the tea
stall, that his master was calling him and that Ravindra
Prasad was in the Khatal. Sunny Kumar also accompanied
Arvind. Ravindra Prasad and Sunny Kumar, however, did
not return till the next morning. The Informant became
suspicious and started searching for his father and his
brother. He went to the Khatal of the appellant, but found
it to be closed. He suspected that the appellant, Hamid
and Arvind had kidnapped his father and younger brother.
3. The fardbeyan given by the Informant was registered
as FIR No.451 of 2002 at Kotwali, P.S. for the offence of
kidnapping under Section 364 read with Section 34 of the
Indian Penal Code, 1860, (for short ‘the IPC’). When
investigation was done by the police, three dead bodies
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were found concealed in husk in a room on the eastern
verandah of Pearl Cinema and the dead bodies were
seized and a seizure list was prepared in which Parimal
Kumar and Baleshwar Ram signed as witnesses. Two of
the dead bodies were identified by the informant as those
of Ravindra Prasad and Sunny Kumar. Inquest reports and
postmortem reports of the dead bodies were prepared.
Later the third body was identified to be that of Arvind by
Ramanand Ram, father of Arvind. The appellant was
arrested and pursuant to the confession of the appellant,
the shoes, sandal and gamchha of the three deceased
persons, a rope, a small plastic bag and a knife were
recovered from the garbage situated in north-east of
Khatal and were seized and Parimal Kumar and Baleshwar
Ram signed the seizure list. Offences under Sections 302,
120B and 201 IPC were added and a charge-sheet was
filed against the appellant and Hamid and the case was
committed to the Court of Sessions.
4. At the trial, altogether eight witnesses were
examined. The Trial Court held that the chain of
circumstances is complete and does not leave any
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reasonable ground for conclusion consistent with the
innocence of the appellant and it goes to show that in all
human probabilities, the offences must have been
committed by the appellant. The trial court, however,
acquitted Hamid of the charges. After hearing on the
question of sentence, the trial court took the view that the
appellant should be hanged by the neck till death as he
had killed three helpless persons brutally after
premeditation and if he is allowed to continue to live in the
present society, he will be a threat to his co-human beings
and this was one of those rarest of rare cases in which the
appellant deserves the capital punishment of death. The
trial court accordingly referred the sentence of death to
the High Court.
5. The appellant also filed a criminal appeal against the
judgment of the trial court. On 03.07.2006, the High Court
directed recording of additional evidence on two points in
exercise of its powers under Section 391 of the Criminal
Procedure Code, 1973 (for short ‘the Cr.P.C.’). Pursuant to
the direction of the High Court the confessional statement
of the appellant was marked as an exhibit through the
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investigating officer (PW-8) after his recall by the trial
court and the knife which was seized and listed as item 10
in the seizure list was also marked as an exhibit.
Thereafter, the High Court heard the appeal and held that
the prosecution has been able to bring home the guilt of
the appellant with regard to the murder of the 3 deceased
persons by exhibiting four circumstances and these are (i)
that the appellant was selling milk to the deceased
Ravindra Prasad and Ravindra Prasad stopped buying the
milk (ii) the appellant summoned the deceased Ravindra
Prasad and deceased Sunny Kumar through the deceased
Arvind who was working with the appellant (iii) the dead
bodies of the three deceased persons were recovered
from the room belonging to the appellant and (iv) the
weapons used in the murder of three deceased persons
were recovered pursuant to the confession of the
appellant. The High Court also confirmed the death
sentence of the appellant saying that the tests laid down
by this Court in Macchhi Singh vs. State of Punjab [(1983)
3 SCC 470] regarding the cases in which death penalty
should be imposed were present in the facts and
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circumstances of the present case. Aggrieved by the
judgment of the High Court, the appellant has filed this
appeal.
CONTENTIONS OF THE LEARNED COUNSEL FOR THE
PARTIES:
6. Mr. Amarendra Sharan, learned senior counsel
appearing for the appellant, submitted that there is no eye
witness to the murder of the three deceased persons and
the finding of the High Court that the prosecution has
been able to establish the guilt of the appellant beyond
reasonable doubt are based on 4 circumstances is not
correct.
7. Mr. Sharan relied on the evidence of PW-3 to the
effect that Arvind had a dairy (khatal) at Old Bakri Bazar
and also on the evidence of PW-4 that the appellant never
had any business of milk but had a business of bakri
(goat). He submitted that the first circumstance which
was the motive for the appellant to kill the deceased
Ravindra Prasad and Sunny Kumar is itself not established
in this case.
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8. Mr. Sharan submitted that there is absolutely no
evidence to establish the second circumstance that the
appellant summoned the deceased persons Ravindra
Prasad and Sunny Kumar. He submitted that the trial
court and the High Court has relied on the evidence of PW-
6 to hold that the appellant summoned the deceased
persons Ravindra Prasad and Sunny Kumar through his
servant Arvind but PW-6 was not present at the tea stall.
He submitted that the evidence of PW-7 would show that
PW-6 was in the house of PW-7 on 16.12.2002 and
remained there till the morning of 17.12.2002 and thus
PW-6 was not present at the tea stall on 16.12.2002 when
Arvind is alleged to have told Ravindra Prasad and Sunny
Kumar that they have been summoned by the appellant.
9. Mr. Sharan next submitted that the third
circumstance that dead bodies were recovered from the
room belonging to the appellant is also not proved in as
much as PW-7 has said in his evidence that the dead
bodies were in fact recovered in front of the Pearl Cinema.
He submitted that the two seizure witnesses PW-1 and
PW-2 have clearly said that recovery of the dead bodies
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and the weapon with which the offence was committed
and other incriminating materials were not made in their
presence. He argued that Rajender Tiwari, the officer who
made the recoveries has also not been examined. He
submitted that the recoveries were made from the pile of
the garbage and not from the drain by the side of Sona
Medical Hall as is alleged to have been stated by the
appellant in his confession. He submitted that, therefore,
the fourth circumstance that the incriminating materials
were recovered pursuant to the confession of the
appellant is also not established.
10. Mr. Sharan relied on Sharad Birdhichand Sarda vs.
State of Maharashtra [(1984) 4 SCC 116] in which this
Court has laid down the tests to be satisfied before the
court convicts an accused on the basis of only
circumstantial evidence. He argued that in this case these
tests are not satisfied and therefore the conviction of the
appellant by the trial court as maintained by the High
Court should be set aside. He also cited the decision of
this Court in Javed Masood and Another vs. State of
Rajasthan [(2010) 3 SCC 538] to argue that the evidence
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of prosecution witnesses was binding on the prosecution.
He submitted that the evidence of PW3, PW4 and PW7
relied upon by the appellant to establish his innocence,
therefore, is binding on the prosecution.
11. Mr. Samir Ali Khan, learned counsel appearing for
the State, on the other hand, submitted that the evidence
of PW-6 is consistent and if the evidence of PW-6 is
considered along with the recovery of the dead bodies
from the room belonging to the appellant as well as the
recovery of the weapons and other incriminating materials
pursuant to the confessional statement of the appellant
marked Ex.1, the Court will arrive at the only conclusion
that it is the appellant who has committed the murder of
three deceased persons. He submitted that though the
appellant retracted his confession before the trial court
when his statement under Section 313 of the Cr.P.C. was
recorded, the appellant has not led any evidence to
establish his innocence. He submitted that the trial court
and the High Court, therefore, have rightly held that the
prosecution has been able to prove the guilt of the
appellant beyond reasonable doubt.
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FINDINGS OF THE COURT:
12. The evidence of PW-6 on which both the trial court
and the High Court have relied on is clear that on
16.12.2002 at about 8.00 p.m. when he was present at the
tea stall, Arvind, servant of the appellant came and called
Ravindra Prasad saying that the appellant wanted to talk
to him on certain issues and that Ravindra Prasad left with
Arvind. PW-6 has also stated in his evidence that after
about an hour Arvind came again and told that the
appellant was calling Sunny also and Sunny went along
with Arvind and thereafter PW-6 closed the shop and went
to his house. No suggestion has also been made to PW-6
in his cross-examination by the defence that PW-6 was not
present at the tea stall on 16.12.2002. Mr. Sharan,
however, referred to the evidence of PW-7 that PW-6 has
come to his house on 16.12.2002 and stayed at his house
at Patna itself in the night and left in the morning but PW-
7 has not stated the time when PW-6 had come to his
house on 16.12.2002. Hence, the evidence of PW-7 does
not contradict the evidence of PW-6 that he was at the tea
stall at 8.00 p.m. on 16.12.2002 when Arvind told
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Ravindra Prasad and Sunny Kumar that they were being
called by the appellant.
13. There is also evidence to show that the dead bodies
of Ravindra Prasad, Sunny Kumar and Arvind were
recovered from the Khatal of the appellant. Though, the
seizure witnesses PW-1 and PW-2 stated that nothing was
seized in their presence, PW-6 has stated that when the
Khatal (cattle shed) of the appellant was opened, he saw
some splashes of blood and the dead bodies were found
in another room and these dead bodies were of Ravindra
Prasad, Sunny Kumar and Arvind. He has also stated that
the inquest reports of all the three dead bodies were
prepared at the place of occurrence itself and he put his
signature on it and all the three signatures are his and
these have been marked as Ex.1/5, 1/6 and 1/7. In cross
examination by the defence, PW-6 has denied the
suggestion that the dead bodies had not been recovered
in his presence and that the inquest reports were not
prepared in his presence and that he had not put his
signatures on the inquest reports.
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14. Mr. Sharan relied on the evidence of PW-7 to submit
that the three dead bodies were not recovered from the
Khatal but we find that PW-7 has also stated that the three
dead bodies were recovered from the room of Pearl
Cinema where the Khatals of the appellant were situated.
PW-7 has, however, admitted in cross-examination on
behalf of the defence that he had not seen with his own
eyes as to from which place the dead bodies were
recovered. Thus the evidence of PW-7 may not establish
the place from which the dead bodies were recovered but
the evidence of PW-6 clearly proves that the bodies were
recovered from a room in the verandah of Pearl Cinema,
which was in occupation of the appellant and this
evidence of PW-6 has not been contradicted by the
evidence of PW-7.
15. PW-8, the I.O. who inspected the place of occurrence
has stated in his deposition that Pearl Cinema is situated
to the east of the tea stall in Budh Marg and was closed
for a long period and there is a verandah to the east of the
cinema hall which is divided into many rooms and the
rooms situated to the north is in possession of the
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appellant. He has further stated in his evidence that in
the western portion of the floor of this room, blood was
found in huge quantity which had already clotted and the
stains of blood were found on the western wall also. PW-8
has further stated that to the north of this room and near
the door there is a vacant place which is fitted with the
grill gate and to the north of this place there is another
room in which there is heap of straw and the three dead
bodies were found concealed in this very heap of husk
which were recovered and the husk was found sticking to
the injuries on the dead bodies of the deceased persons.
PW-8 has further stated that the three dead bodies were
recovered from the place of occurrence itself. He has also
stated that Rajender Tiwari, the SI of Police prepared the
inquest reports of all the three dead bodies and he put his
signatures on all the three inquest reports which have
been marked as Ex.5, 5/1 and 5/2 respectively.
16. PW-8 has also stated in his evidence that in course of
investigation, after the appellant had surrendered in court,
he took him on police remand and in course of
investigation he gave his confessional statement, and
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pursuant to information the appellant divulged, he seized
two pair of blood stained plastic shoes, a blood stained
white gamcha (towel of Indian type), a blood stained
chequerred gamcha, a plastic rope of green colour, a
blood stained piece of plastic, a blood stained old sack, a
small sack of blood, a blood stained green small plastic
sack, a blood stained small container made of plastic, a
knife of 16 inches used for slaughtering goat. PW-8 has
also stated that a seizure list of all these articles which
were recovered were prepared by Rajender Tiwari and he
had identified the writing and signature of Rajender Tiwari
and the seizure list is marked as Ex.6/1. Section 27 of the
Indian Evidence Act, 1872, states that when any fact is
deposed to as discovered in consequence of information
received from a person accused of any offence, in the
custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
Hence, the information received from the appellant
pursuant to which the aforesaid incriminating materials
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were recovered is not only admissible but also has been
proved.
17. Thus, three circumstances have been established by
the prosecution. The first circumstance established by the
prosecution is that Arvind came to the tea stall on
16.12.2002 at about 8.00 p.m. and told Ravindra Prasad
that he was being called by the appellant and Ravindra
Prasad went with Arvind and within an hour thereafter
Arvind again came to the tea stall and told Sunny Kumar
that he was being called by the appellant and Sunny
Kumar went along with Arvind. The second circumstance
that has been established by the prosecution is that on
17.12.2002 the dead bodies of Ravindra Prasad, Sunny
Kumar and Arvind were recovered from a room in
occupation of the appellant in the verandah of Pearl
Cinema. The third circumstance which has been
established by the prosecution is that pursuant to the
information divulged by the appellant the incriminating
materials were recovered by the I.O. These three chain of
circumstances establish beyond reasonable doubt that it
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was the appellant who had eliminated the three deceased
persons.
18. In Sharad Birdhichand Sarda vs. State of
Maharashtra (supra), cited by Mr. Sharan, the following 5
golden principles were laid down for a proof of guilt on the
basis of circumstantial evidence (i) the circumstance from
which the conclusion of the guilt is to be drawn should be
fully established; (ii) the facts so established should be
consistent only with the hypothesis of the guilt of the
accused; (iii) the circumstances should be of a conclusive
nature and tendency; (iv) they should exclude every
possible hypothesis except the one to be proved, and (v)
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. Considering the chain of three circumstances
which have been fully established by the prosecution, the
5 golden principles laid down in Sharad Birdhichand Sarda
vs. State of Maharashtra (supra) apply in this case and the
only hypothesis that we can conclude from the chain of
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three circumstances is that it is the appellant who has
committed the murder of the three deceased persons.
19. In Javed Masood and Another vs. State of Rajasthan
(supra) cited by Mr. Sharan, this Court relying on its earlier
decision in Mukhtiar Ahmed Ansari vs. State [(2005) 5 SCC
258] has held that it was open to the defence to rely on
the evidence led by the prosecution. In this case, we have
found that the evidence of PW-7 does not contradict the
evidence of PW-6 and does not support the defence. It,
however, appears from the evidence of PW-3 that it was
Arvind who had a Khatal at Old Bakri Bazar. We have
perused the evidence of PW-3 and we do not find that PW-
3 has stated that the appellant did not have a Khatal on
the verandah of the Pearl Cinema. Of course, PW4 has
stated that the appellant runs business of bakri (sheep
goat) and never ran milk business but in the evidence of
PW-4 there is nothing to show that the room on the
verandah of Pearl Cinema was not in the occupation of the
appellant. At best the defence can rely on PW-4 to argue
that the appellant did not carry on milk business and
therefore the motive for committing the offence did not
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exist. The evidence of PW4 may thus create some doubt
with regard to the motive of the appellant to kill Ravindra
Prasad and Sunny Kumar. Where other circumstances
lead to the only hypothesis that the accused has
committed the offence, the Court cannot acquit the
accused of the offence merely because the motive for
committing the offence has not been established in the
case. In Ujjagar Singh v. State of Punjab [(2007) 13 SCC
90, this Court has held:
“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 cliche) the motive is in the
mind of the accused and can seldom
be fathomed with any degree of
accuracy”.
SENTENCE:
20. On the question of sentence, the trial court has
recorded special reasons under Section 354(3) Cr.P.C. for
awarding death sentence to the appellant. The trial court
has held that the appellant has killed Ravindra Prasad and
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Sunny Kumar on an issue of petty amount and the
appellant has also not spared his servant, Arvind. The trial
court has also found from the post mortem reports of the
three deceased persons that they have been brutally
murdered after premeditation. The trial court has further
held that if the appellant is allowed to continue to live in
society, he will be a great threat to his co-human beings.
For the aforesaid reasons, the trial court took the view
that the appellant should be awarded the death sentence.
21. While confirming the death sentence, the High
Court has held in the impugned judgment that the present
case clearly falls under the yardstick laid down in Machhi
Singh & Ors. v. State of Punjab [AIR 1983 SC 957]. The
reasons, which weighed with the High Court in confirming
the death sentence, are that the appellant did not hesitate
to take away three lives for petty monetary gain; the
tender age of Sunny was of no concern to him; either
Ravindra or Sunny had to undergo the trauma of watching
the father or the son being killed first in front of the other
and their hands and feet were tied and a butchering knife
was used to cause multiple murders and the nature of the
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assault upon the deceased Arvind to do away with all
evidence whatsoever was dastardly.
22. We have, however, noticed that the motive for the
appellant to commit the murder of three persons has not
been established in this case. Hence, one of the reasons
given by the trial court and the High Court that the
murders were committed for petty monetary gain is not
substantiated by evidence. We have also found that there
is no eyewitness to the manner in which the appellant
committed the murder of three persons and the culpability
of the appellant has been established only by a chain of
three circumstances established by the prosecution. The
finding of the High Court, therefore, that either Ravindra
or Sunny had to undergo the trauma of watching the
father or the son being killed first in front of the other is a
pure surmise. Similarly, the finding of the High Court that
the hands and feet were tied and a butchering knife was
used to cause multiple murders is an inference drawn by
the High Court from the post mortem report. What exactly
happened leading to the murder of three persons by the
appellant is not known, but what appears from the post
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mortem reports is that the three deceased persons were
brutally killed by the appellant. It has, however, been held
by this Court in Subhash Ramkumar Bind @ Vakil & Anr. v.
State of Maharashtra [AIR 2003 SC 269] that brutality
would be a relevant factor but how the same did take
place is also a relevant and necessary material to be
considered while deciding whether to award life
imprisonment or death for the offence of murder.
Moreover, in Panchhi & Ors. v. State of U.P. [AIR 1998 SC
2726] a three-Judge Bench of this Court has held:
“Brutality of the manner in which a murder
was perpetrated may be a ground but not the
sole criterion for judging whether the case is
one of the “rarest of rare cases” as indicated
in, Bachan Singh’s case, (AIR 1980 SC 898),
in a way every murder is brutal, and the
difference between one from the other may
be on account of mitigating or aggravating
features surrounding the murder.”
23. The trial court, however, has held that as the
appellant has eliminated the three deceased, if the
appellant is allowed to continue to live in society, he will
be a great threat to his co-human beings. This reason for
awarding the extreme penalty of death is based on an
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apprehension and may not be enough to impose the
extreme penalty of death. As has been held by the
majority of four Judges in Bachan Singh’s case (supra), the
extreme penalty of death can be inflicted only in gravest
cases of extreme culpability and in making choice of the
sentence, in addition to the circumstances of the offence,
due regard must be paid to the circumstances of the
offender also. In the present case, we do not find
evidence to establish the gravest case of extreme
culpability of the appellant and we do not also have
evidence to establish the circumstances of the appellant.
24. We have, however, sufficient evidence to establish
the culpability of the appellant for three offences of
murder as defined in Section 300, IPC, and for each of the
three offences of murder, the appellant is liable under
Section 302, IPC for imprisonment for life if not the
extreme penalty of death. Section 31(1) of the Cr.P.C.
provides that when a person is convicted at one trial of
two or more offences, the Court may, subject to the
provisions of Section 71 of the Indian Penal Code,
sentence him for such offences, to the several
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punishments prescribed therefor which such Court is
competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of
the other in such order as the Court may direct, unless the
Court directs that such punishments shall run
concurrently. Thus, Section 31(1) of the Cr. P.C.
empowers the Court to inflict sentences of imprisonment
for more than one offence to run either consecutively or
concurrently. In Kamalanantha & Ors. vs. State of T.N.
[(2005) 5 SCC 194], this Court has held that the term
“imprisonment” in Section 31 of the Cr. P.C. includes the
sentence for imprisonment for life. Considering the facts
of this case, we are of the opinion that the appellant is
liable under Section 302, IPC for imprisonment for life for
each of three offences of murder under Section 300, IPC
and the imprisonments for life should not run concurrently
but consecutively and such punishment of consecutive
sentence of imprisonment for the triple murder committed
by the appellant will serve the interest of justice.
25. In the result, we maintain the conviction of the
appellant for three offences of murder under section 302,
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IPC, but convert the sentence from death to sentence for
rigorous imprisonment for life for each of the three
offences of murder and direct that the sentences of
imprisonment for life for the three offences will run
consecutively and not concurrently. Thus, the appeals are
allowed only on the question of sentence, and dismissed
as regards conviction.
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Madan B. Lokur)
New Delhi,
February 15, 2013.
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