TaxTMI 
TaxTMI 
2022 (10) TMI 1231
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.... established their case." 2. These appeals, by special leave, arise out of the judgment and order dated 09.07.2021 passed by the High Court of Judicature at Allahabad, Bench at Lucknow confirming the death sentence awarded to the accused appellant herein. 3. The accused appellant has been held guilty of the offence punishable under Section 302 of the Indian Penal Code (for short, "the IPC"). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced the accused appellant to death under Section 302 of the IPC and pay fine of Rs. 20,000/­ and in default of payment of fine to undergo further rigorous imprisonment for one year. While the Sessions Judge, Lakhimpur Kheri made a reference to the High Court for confirmation of death sentence under Section 366 of the Code of Criminal Procedure (for short, "the CrPC"), the accused appellant preferred Criminal Appeal No. 1959 of 2016 putting in issue his conviction and sentence. The High Court dismissed the Criminal Appeal No. 1959 of 2016 filed by the accused appellant thereby confirming the death reference under Section 366 of the CrPC. 4. In such circumstances referred to above, the accused appellant is here before this Court with....
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....eri came and told that, "Last night I was sleeping with my wife & children. Then at about 1.00 o'clock in the night someone knocked at my door, I woke up and asked who was there but none replied. Then I went to the roof of my house and saw that four persons were standing outside the house. I switched on the torch. I saw that that one person who was resident of village­ Basadiha, Police Station Ishanaga and known to Ramanand fired on me by gun; I escaped and jumped and came down. Then one miscreant hit on my head by the butt of a gun. I ran away and hid in the fields and saw that the miscreants climbed into my home. I saw, smoke coming out of my home. Then I ran to Behnan Purwa and told about the incident at Crusher of Khaliq and to the people at Ramnagar Lahbadi but none came ahead. I came running here". Then I alongwith my nephew Pratap reached the house of Ramanand and saw that the wife of Ramanand namely Sangita, aged about 35 years, daughters Tulsi aged about 7 years, Laxmi aged about 5 years, Kajal aged about 3 years and a girl child of about 1½ month had been killed and the dead bodies were burning. Then I and Pratap started extinguishing the fire by pouring water ....
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....s son of Ramcharan and PW­4, Ram Kumar son of Paanchoo before whom the accused appellant is said to have made extra judicial confession. The investigating officer also recorded the statement of the PW­1, Shambhu Raidas, the first informant and PW­2, Chhatrajpal Raidas (brother of the deceased Sangeeta). 11. At the end of the investigation, charge sheet came to be filed for the offence of murder punishable under Section 302 of the IPC. The Magistrate committed the case to the Court of Sessions Judge, Lakhimpur Kheri under Section 209 of the CrPC. Upon committal, the Sessions Trial No. 379 of 2010 came to be registered. 12. On 06.07.2010 the Additional District and Sessions Judge, Fast Track Court, Lakhimpur Kheri framed charge against the accused appellant. The statement of the accused appellant was recorded. The appellant did not admit the charge and claimed to be tried. 13. The prosecution adduced the following oral evidence in support of its case: S. No. Oral Evidence - Witness 1. PW­1 Shambhu Raidas 2. PW­2 Chhatrapal Raidas 3. PW­3 Babu Ram Hans 4. PW­4 Ram Kumar 5. PW­5 Dr. A.K. Sharma 6. PW­6 S.I. Uma Shankar Mishra ....
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....4] 35. Photo lash of deceased Km. Chhoti @ Guddi [Ex. Ka­35] 36. Police Paper No. 13 of deceased Km. Chhoti @ Guddi [Ex. Ka­36] 37. Specimen seal regarding deceased Km. Chhoti @ Guddi [Ex. Ka­37] 38. Letter to Reserve Inspector regarding deceased Km. Chhoti @ Guddi [Ex. Ka­38] 39. Letter to C.M.O. regarding deceased Km. Chhoti @ Guddi [Ex. Ka­39] 40. Chik FIR [Ex. Ka­40] 41. Copy of general diary [Ex. Ka­41] 42. Post­mortem report of deceased Tulsi [Ex. Ka­42] 43. Post­mortem report of deceased Sangeeta [Ex. Ka­43] 44. Medical examination report of the accused [Ex. Ka­44] 15. After completion of the oral as well as documentary evidence, the statements of the accused appellant under Section 313 of the CrPC were recorded in which the accused appellant stated that he was innocent and had been falsely implicated in the alleged crime. The accused appellant took the defence that few individuals of a rival party had committed the murder of his wife and daughters as Sangeeta (deceased) was the sole eye witness to the murder of the brother of the accused appellant. The trial against the accused persons who had k....
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....ith the possibility of any other hypothesis compatible with the innocence of the accused. 20. Mr. Reddy vociferously submitted that the PW­3 and PW­4 resply are 'got up' witnesses. The evidence in the form of extra judicial confession is nothing but a fabricated piece of evidence at the instance of the investigating officer just with a view to bolster up the case of the prosecution in the absence of any direct evidence. He would submit that both these prosecution witnesses are absolutely unreliable. 21. Mr. Reddy submitted that in a case which is based on circumstantial evidence, motive plays an important role. He would submit that the prosecution has not been able to prove the motive behind the crime. The extra marital affair of the accused appellant with Manju and the desire of the accused appellant to marry Manju at any cost has been put forward as the motive behind the crime. However, there is no cogent and credible evidence in that regard. He would submit that even otherwise an accused cannot be convicted and sentenced to death only on the circumstance of motive. 22. Mr. Reddy would submit that the prosecution has not been able to explain the injuries suffered by th....
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....t that over and above the two incriminating circumstances in the form of extra judicial confession and the discovery of weapon of offence, there was a strong motive for the accused appellant to commit the crime. 26. Mr. Upadhyay vehemently submitted that the accused appellant desperately wanted to get married to Manju and his wife Sangeeta (deceased) was coming in his way. The accused appellant decided not only to terminate his own wife but also mercilessly killed four of his innocent minor daughters so that he may not have to take care of them after marrying Manju. He would submit that it is one of the most heinous and gruesome crimes committed by the accused appellant. 27. He further submitted that the prosecution is not obliged to explain the injuries suffered by the accused appellant as those injuries were found to be superfluous in nature. The prosecution is obliged to explain the injuries suffered by an accused, if any, only if such injuries are grievous in nature which may throw a considerable doubt on the very genesis or the origin of the case of the prosecution. He would submit that the defence of the accused appellant that four unidentified persons were the assailants s....
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....s house. The accused appellant went to Behnanpurwa, Khalikpurwa and Lahki for help but he was not able to procure any help. PW­1 has deposed that after the accused appellant narrated the entire incident, he himself along with one Pratap reached the house of the accused appellant. The accused appellant also accompanied the PW­1, Shambhu Raidas and Pratap. When the PW1 reached the house of the accused appellant, he saw the dead bodies of Sangeeta and the four daughters burning. PW­1 with the help of Pratap started to douse the fire with water. PW­1 has deposed that while he himself and Pratap were trying to douse the fire, the accused appellant took out his blood stained baniyaan (vest) and threw it in the fire. The accused appellant thereafter started warming his body. On seeing this, the PW­1 got annoyed and told the accused appellant that how could he sit beside the fire when his wife and children had been killed. The PW­1, Shambhu Raidas thereafter went to the Dhaurhara Police Station and lodged the FIR. In the FIR, he named four unidentified persons as the suspects. The PW­1 has further deposed about the illicit relationship of the accused appellant w....
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....amination in chief, he has deposed about the extra marital affair of the accused appellant with Manju. He has also deposed that ten days before the incident, Sangeeta had visited his house and had narrated about the harassment that was meted towards her by the accused appellant. In his cross examination, he has deposed that he came to know about the incident at 7 o'clock in the morning through Ramanand. According to the PW­2, Ramanand had visited his house and was informed that his wife and four children were burning in the house. According to the PW­2, the accused appellant saying so left his house. The PW­2 has further deposed in his cross examination that Pratap and PW­1, Shambhu Raidas were to be seen at the house of the accused appellant dousing the fire with water. He has deposed that villagers were standing outside the house of the accused appellant. He has deposed that the clothes of Ramanand were soaked with blood. After sometime, the Police Inspector reached the place of incident. The PW­2 has deposed that between 8 A.M. and 9 A.M. the police took the accused appellant to the police station. He has deposed that within no time, it was confirmed that non....
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....ted and set on fire. The PW­4 told the accused appellant that he would help him provided he would tell the truth. According to the PW­4, thereafter the accused appellant confessed before him that he had killed his wife and children as he wanted to marry Manju and his wife Sangeeta was opposing him to get married. He has further deposed in his examination in chief that when he reached the village of the accused appellant, he saw that the son of Ramanand was sitting on Ramanand's lap and Ramanand was crying and talking to his son saying that he had killed his mother and sisters. In his cross examination, he has deposed that when the accused appellant visited his house at 6:30 in the morning, he noticed that there was blood on his shirt and pant. He has further deposed in his cross examination that he had informed the police officers that the accused appellant had visited his house at 6:30 in the morning. 37. What emerges from the evidence of the PW­4 is that on 22.01.2010, the accused appellant had visited the house of the witness at 6:30 in the morning and made an extra judicial confession about the alleged crime before him. We are not prepared to even believe the testi....
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....y drawn under Section 27 of the Evidence Act, 1872. We do not propose to look into the cross examination of the PW­6 as there is hardly anything in the cross examination and not relevant for our purpose. 41. The prosecution has examined the PW­7, Inspector Yogendra Singh as the investigating officer. The PW­7 in his examination in chief has deposed that he had recorded the statements of the PW­2, Chhatrapal Raidas and others on 23.01.2010. He has deposed that he arrested the accused appellant on 24.01.2010. He has deposed that he recorded the statements of the PW­3 and PW­4 resply on 25.01.2010. Nothing turns around in the cross examination of the PW­7, Yogendra Singh. 42. It is not necessary for us to discuss the evidence of the PW­8 Dr. S.P. Singh. Dr. Singh had performed the post mortems of the deceased Tulsi and Sangeeta. 43. The prosecution has examined the PW­9, Dr. Ankit Kumar Singh. According to the PW­9, the accused appellant was brought at the C.H.C. Dhaurhara on 22.01.2010 at 10:30 in the morning for medical examination. He has deposed that on 22.01.2010 he was in­charge Medical Officer at the C.H.C. Dhaurhara. He has depose....
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....nces from which an inference of guilt is sought to be drawn must be cogently and firmly established; 2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature; 3. The circumstances, if 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 4. 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 but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved. 47. There cannot be any dispute to the fact that the case on hand is one of the circumstantial evidence as there was no eye witness of the occurrence. It is settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt the complete chain of events and circumstances which definitely points to....
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.... 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 Cri LJ 1783] where the following 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 ha....
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....are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. ANALYSIS OF THE INCRIMINATING CIRCUMSTANCES RELIED UPON BY THE TRIAL COURT AND THE HIGH COURT DISCOVERY OF WEAPON OF OFFENCE AND BLOOD­STAINED CLOTHES 51. It is the case of the prosecution that on 24.01.2010 the accused appellant was picked up by the investigating officer from nearby a bus stand and was arrested in connection with the alleged crime. After the arrest of the accused appellant and while he being in the custody at the police station, he is said to have on his own free will and volition made a statement that he would like to point out the place where he had hidden the weapon of offence (Banka) and his blood­stained clothes after the commission of the alleged crime. According to him, after such statement was made by the accused appellant, he along with his subordinates set forth for the place as led by the accused. There is something very unusual, that we have noticed in the ....
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....sses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Ev....
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....s deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW­7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not suppor....
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....elf had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka­6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his statement and when he expressed that ­ he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealed­stamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka­5...." [Emphasis supplied] 59. We shall also look into the oral evidence of the PW­6, Uma Shankar Mishra who at the relevant point of time was serving as a Sub­Inspector Chowki In­charge Bahjam, Police Station....
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....v. State of Rajasthan reported in (2009) 9 SCC 417, held as under: "34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......." [Emphasis supplied] 63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon. 64. The conditions necessary for the applicability of Section 27 of the Act are broadly as under: (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483 Two conditions for application - (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered ­ Earabhadrappa v. State of Karnataka: AIR (1983) SC 446" 65. We may refer t....
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....to the discovery of the knife in the house of the informant." 67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this ....
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....esses to the drawing of the discovery panchnama, then why the PW­2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW­6 and PW­7 respectively. 72. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under: "18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states th....
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....ould be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis supplied] 73. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714: "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whe....
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....n to themselves before believing the extra judicial confession whether the accused appellant was a free man on 23.01.2010 so as to reach the house of PW­3, Babu Ram Hans at 9:00 o'clock in the morning and make an extra judicial confession. This is one of the basic infirmities we have noticed in the judgment of both the Courts. There is cogent evidence on record to indicate that on 22.01.2010, the accused appellant first visited the house of PW­1, Shambhu Raidas (first informant) and narrated about the incident. The PW­1, Shambhu Raidas thereafter lodged the First Information Report (FIR) at the police station and as deposed by him, the accused appellant all throughout was at the police station. If on 22.01.2010 the accused is sent for medical examination along with a police yadi accompanied by a police constable to the hospital then how does it lie in the mouth of the prosecution to say that after the medical examination the accused appellant was allowed to go home and move around freely. The witnesses have said in their oral evidence that the accused appellant was picked up by the police on 22.01.2010 in the early morning itself. This entire case put up by the prosecut....
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....IR in the morning till 02:00 o'clock in the night and Ramanand also stayed with me at the police station. The police official had challaned Ramanand on the third day. Till then Ramanand was continuously staying at the police station. [Emphasis supplied] 78. The PW­2, Chhatrapal Raidas in his evidence has deposed, "I came to know about the incident at 07:00 o'clock in the morning. I came to know through Ramanand. Ramanand had come to my house at 07:00 o'clock. Ramanand was alone then. Ramanand told me that his wife and children were burning in the house; someone had killed and set them on fire. Saying this Ramanand left for his home. Thereafter, Pratap and Shambhu reached the place of Ramanand on a bicycle and I reached walking. When I reached the house of Ramanand, Pratap and Shambhu were dousing the fire at the house with water. Ramanand was warming his body sitting over here and villagers were standing outside. The clothes of Ramanand were soaked with blood. The Inspector reached sometime thereafter. Thereafter, I, Shambhu and Pratap went with the inspector to the police station in a jeep. It took half an hour for the inspector to arrive at the spot. It was about 8­9 o'c....
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....confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person, or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Evidence Act. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may r....
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....nducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words 'appear to him' in the last part of the section refer to the mentality of the accused. (See State of Rajasthan v. Raja Ram, (2003) 8 SCC 180) 81. An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. T....
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....ng the dimensions of the principles governing the admissibility and evidentiary value of an extra­judicial confession, this Court in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] stated the principle that: (SCC p. 192, para 19) "19. An extra­judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." The Court further expressed the view that: (SCC p. 192, para 19) "19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...." x x x x 15.6. Accepting the admissibility of the extra­judicial confession, the Court in Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604 : (2011) ....
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....eceased Sangeeta. It also appears that the engagement ceremony was celebrated with pomp and show. However, before the accused appellant could get married to Manju, he got arrested in one offence under Section 307 of the IPC. According to the prosecution thereafter, although the accused appellant tried his best to get married to Manju, more particularly, after being released on bail yet as there was lot of opposition at the end of his wife deceased Sangeeta, he was not able to marry her. In such circumstances, it is the case of the prosecution that the accused appellant decided to terminate his wife Sangeeta as well his four minor daughters on the fateful night of the incident. 87. It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in c....
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....585] where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai v. UT, Chandigarh [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] . This Court explained the legal position as follows: (Sunil Rai case [(2011) 12 SCC 258 : (2012) 1 SCC (Cri) 543 : AIR 2011 SC 2545] , SCC p. 266, paras 31­32) "31. ... In any event, motive alone can hardly be a ground for conviction. 32. On the materials on record, there may be some suspicion against the accused, but as is often said, suspicion, howsoever strong, cannot take the place of proof." 31. Suffice it to say although, according to the appellants the question of the appellant Velu having the motive to harm the deceased Senthil for falling in love with his sister, Usha did not survive once the family had decided to offer Usha in matrimony to the deceased Senthil. Yet even assuming that the appellant Velu had not reconciled to the idea of Usha getting married to the deceased Senthil, all that can be said was that the appellant Velu had a motive for physically harming ....
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....ction 313 of the CrPC. This is one another unusual feature of this matter. Ordinarily and more particularly having regard to the language of Section 313 of the CrPC, the further statement of an accused is to be recorded once the prosecution closes its evidence and before the accused enters his defence. In the case on hand, it appears that on 19.07.2013, in all eight prosecution witnesses were examined. At the end of the day, the trial court recorded the further statement of the accused appellant. The Question No. 12 reads thus: "Question 12: ­ Do you want to submit anything else? Answer: ­ Manua alias Ramakant, Kamlkant and Ramakant had killed my elder brother Siyaram, & for that I had lodged F.I.R. My wife Sangita and Siyaram's daughter Gudiya were the eye witnesses of this case. The accused persons, with intention to erase evidence, had assaulted me and my wife Sangita, and burnt her by pouring kerosene oil. They wanted to kill me too. That's why they poured kerosene oil on me as well. The daughter of Siyaram died of sickness. This incident had been caused by Ramakant, Kamlakant and Ramakant." 94. On 14.11.2013, the second further statement of the accused a....
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....efault to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. In the American Jurisprudence, 2nd Edition, Vol. 30, the expression "preponderance of evidence" has been defined in Article 1164. In America the term means "the weight, credit and value of the aggregate evidence on either side, and is usually considered to be synonymous with the term greater weight of the evidence", or "greater weight of the credible evidence". It is a phrase which, in the last analysis, means probability of the truth. To be satisfied, certain, or convinced is a much higher test than the test of "preponderance of evidence". The phrase "preponderance of probability" appears to have been taken from Charles R. Cooper v. F. W. Slade, (1857­59) 6 HLC 746. The observations made therein make it clear that what "preponderance of probability" means "more probable and rational view of the case", not necessarily as certain as the pleading should be. 100. Again, at the cost of repetition, we may state that it is not necessary for us to go into the issue of false explanation, said to have been offered by the accused appellant as at th....
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....idence 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 judgments 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." [Emphasis supplied] 105. We must remind ourselves of what this C....
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....e well­settled law is that if the injuries are superfluous or minor in nature then the prosecution need not explain such injuries. In the case on hand, the accused appellant has offered some explanation which could be said to be compatible with the defence he has put forward. As explained earlier, the accused has to establish his defence on preponderance of probability and not beyond reasonable doubt. The accused in his statement recorded under Section 313 of the CrPC has said that he suffered the head injuries as one of the assailants out of the four had hit him on his head with the butt of the gun. PW­9, Dr. Ankit Kumar Singh in his evidence has said that the injurie Nos. 1, 2 and 3 resply could have been caused by the butt of the gun. PW­9, Dr. Ankit Kumar Singh has not said that the injuries suffered by the accused appellant were self­inflicted injuries. 108. The prosecution wants us to accept the other side of the story. What the prosecution wants to convey is that the accused appellant suffered the injuries while committing the crime. This is suggestive of the fact that the accused appellant might have suffered the injuries only if one of the deceased persons....
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.... the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." [Emphasis supplied] 113. In another important case Lakshmi Singh and Others v. State of Bihar, (1976) 4 SCC 394, after referring to the ratio laid down in Mohar Rai (supra), this Court observed: "12. .....where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants....." 114. It was further observed that: "12. .....in a murder case, the non­explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is ....
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....s a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict. [See Ashish Batham v. State of M.P., (2002) 7 SCC 31]. 117. Before parting with the case, we would like to place on record an observation of ours, touching an important aspect of the case. Without any hesitation and with disappointment, we state that the case on hand is one of most perfunctory investigation. It appears that the accused herein was provided with a legal aid. He might not have been able to afford a good and experienced trial side lawyer to defend himself. We have noticed that the cross­examination of each and every witness is below average. Questions, which the defence counsel was not supposed to put to the prosecution witnesses were put without realising or understanding the legal implications of the answers to such questions, more particularly, when they were not necessary. The defence counsel remained oblivious of the position of law that suggestions made to the witnesses by the defence the answers to those are binding to the accused. 118. Any defence counsel with a reasonable standing at the Bar is expecte....
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....e of the State. (2) The High Court may, with the previous approval of the State Government, make rule providing for- (a) the mode of selecting pleaders for defence under subsection (1); (b) the facilities to be allowed to such pleaders by the Courts; (c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of subsection (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification the provisions of sub­sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session." 122. Under Section 9 of the Legal Services Authorities Act, 1987, the District Legal Services Authorities are constituted for every District in the State to exercise powers and perform functions conferred on, or assigned to, the District Authority under the said Act. 123. This Court in para 13 of the judgment reported in Kishore Chand v. State of Himachal Pradesh, (1991) 1 SCC 286, held thus: "13. Though Article 39­A of the Constitution provides fundamental rights to equal justice and free l....
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....law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. x x x x 38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may....
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....al intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo­American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer­power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said: What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee? 15. Gideon's trumpet has been heard across the Atlantic. Black, J. there observed: Not only those precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assur....
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....y (Free and Competent Legal Services) Regulations, 2010, more particularly, the Regulation­15, which reads thus: "15. Special engagement of senior advocates in appropriate cases.­ (1) If the Monitoring and Mentoring Committee or Executive Chairman or Chairman of the Legal Services Institution is of the opinion that services of senior advocate, though not included in the approved panel of lawyers, has to be provided in any particular case the Legal Services Institution may engage such senior advocate. (2) Notwithstanding anything contained in the State regulations, the Executive Chairman or Chairman of the Legal Services Institution may decide the honorarium of such senior advocate." 129. This Court in Subhash Chand v. State of Rajasthan reported in (2002) 1 SCC 702 in para 26, while allowing the appeal and acquitting the accused appellant therein under Sections 302 and 376(2)(f) of the IPC, observed as under: "26. Before parting with the case we would like to place on record, an observation of ours, touching an aspect of the case. There are clueless crimes committed. The factum of a cognizable crime having been committed is known but neither the identity of the ....