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TMI Blog2022 (10) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In SHANKARLAL GYARASILAL DIXIT VERSUS STATE OF MAHARASHTRA [ 1980 (12) TMI 194 - SUPREME COURT] , this Court cautioned human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions . This Court has held time and again that between may be true and must be true there is 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. It is by far now well settled for a legal proposition that it is the duty of the court to see and ensure that an accused put on a criminal trial is effectively represented by a defence counsel, and in the event on account of indigence, poverty or illiteracy or any other disabling factor, he is not able to engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the present appeals. CASE OF THE PROSECUTION 5. According to the case of the prosecution, the accused appellant Ramanand was married to Sangeeta (deceased) for the past 12 years before the incident in question. In the wedlock, five children were born one son and four daughters, by name Gaurav Ambedkar aged 10 years, Tulsi aged 7 years, Lakshmi aged 5 years, Kajal aged 3 years and Guddi aged one and a half month. 6. On the fateful night of the incident i.e. the intervening night between 21st 22nd of January, 2010 while the wife and four children were sleeping in the house situated at the village Basdhiya, the accused appellant is said to have merciless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 month had been killed and the dead bodies were burning. Then I and Pratap started extinguishing the fire by pouring water with the aid of a bucket. Behind us Ramanand too came to his house home, sat in the courtyard and started warming himself in front of the fire (Aag Taapne laga). On seeing this, both of us scolded him that, Your wife daughters have been killed and you are sitting in the courtyard and warming yourself before fire . On this Ramanand got annoyed and went outside the house. The dead bodies are lying at the spot. I came to inform. Lodge the case and take legal action. Thumb Impression (T.I.) Shambhu Raidas, Applicant, Shambhu Raidas son of Late Shyam Lal Raidas, Resident of village Naamdar Purwa, Hamlet Amethi, Police Station Dhaurahara, District Khera. Date 22.01.2010. [Emphasis supplied] 8. Thus, it is the case of the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. PW 1 Shambhu Raidas 2. PW 2 Chhatrapal Raidas 3. PW 3 Babu Ram Hans 4. PW 4 Ram Kumar 5. PW 5 Dr. A.K. Sharma 6. PW 6 S.I. Uma Shankar Mishra 7. PW 7 Inspector Yogendra Singh 8. PW 8 Dr. S.P. Singh 9. PW 9 Dr. Ankit Kumar Singh 10. PW 10 H.M. Dhani Ram Verma 14. The prosecution also adduced the following documentary evidence: S.No. Documentary Evidence 1. Tahreer /Written Complaint [Ex. Ka 1] 2. Post mortem report of deceased Laxmi [Ex. Ka 2] 3. Post mortem report of deceased Kajal [Ex. Ka 3] 4. Post mortem report of deceased Chhoti @ Guddi [Ex. Ka 4] 5. Discovery memorandum of murder weapon and clothes [Ex. Ka 5] 6. Site plan of crime scene [Ex. Ka 6] 7. Site plan of discovery of murder weapon [Ex. Ka 7] 8. Charge sheet [Ex. Ka 8] 9. Seizure memo of ash mixed and plain soil [Ex. Ka 9] 10. Inquest Report of deceased Sangeeta Devi [Ex. Ka 10] 11. Photo lash of deceased Sangeeta [Ex. Ka 11] 12. Police Paper No. 13 of deceased Sangeeta [Ex. Ka 12] 13. Specimen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who had killed the brother of the accused appellant was pending at that point of time. The rival party wanted to terminate Sangeeta and for that reason, four individuals came to his house at about 1 o clock in the night of 22nd of January, 2010 and mercilessly killed all his five family members and thereafter set the bodies on fire. The trial court disbelieved such defence of the accused appellant. 16. At the conclusion of the trial, the Trial Judge convicted the accused appellant for the offence under Section 302 of the IPC and sentenced him to death relying upon the following incriminating circumstances: (i) Discovery of weapon of offence and blood stained clothes at the instance of the accused appellant. (ii) Extra Judicial confession of the accused appellant before two prosecution witnesses. (iii) Strong motive to commit the crime. (iv) False explanation at the instance of the accused appellant and his unnatural conduct. 17. The appeal filed by the accused appellant in the High Court also failed and was ordered to be dismissed. 18. Being dissatisfied, the accused appellant has come up with the present appeals. SUBMISSIONS ON BEHALF OF THE ACCUSED APPELLANT 19. Mr. S. Niranjan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit that on the contrary, it is the accused who has been able to explain how he suffered the injuries on his head and chest while putting forward his defence before the High Court in his statement recorded under Section 313 of the CrPC. Having noticed that the accused appellant had suffered injuries on his head and was bleeding, the accused appellant along with one police constable was sent for medical examination at the District Hospital, District Kheri. The accused appellant was taken to the hospital by a constable viz. Brij Mohan Singh, Dhaurhara, District Kheri. The PW 9, Dr. Ankit Kumar Singh has issued a medical certificate Ext. 44 stating the nature of the injuries noticed on the body of the accused appellant. 23. Mr. Reddy further submitted that once the extra judicial confession alleged to have been made before the two prosecution witnesses i.e. the PW 3 and PW 4 resply and the evidence of the discovery of the weapon of offence is discarded and eschewed from consideration, then nothing remains in the case of the prosecution. 24. Lastly, Mr. Reddy would submit that howsoever unnatural one may find the conduct of the accused after the alleged crime, the same, by itself, is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit that the accused appellant has not been able to explain in what circumstances the smell of kerosene was coming from his clothes as deposed by the witnesses and the doctor. He would argue that if out of fear he had escaped from his house and ran away, then how he came in contact with kerosene. He would submit that the case of the accused appellant that one of the unidentified persons fired a shot from a firearm is also falsified as no cartridge or any pellets were recovered from the place of occurrence. 28. Mr. Upadhyay would submit that the scope of the present appeals filed under Article 136 of the Constitution is very limited. It is only in exceptional circumstances that this Court may disturb the concurrent findings of guilt recorded by the trial court and High Court respectively. He would submit that the view taken by the trial court and the High Court is correct and in no manner the appreciation of evidence could be termed as perverse. 29. In such circumstances referred to above, Mr. Upadhyay prays that there being no merit in the appeals filed by the accused appellant, those may be dismissed. ORAL EVIDENCE ON RECORD 30. The PW 1, Shambhu Raidas is the first informant. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u. The engagement ceremony of Manju with accused appellant Ramanand was also performed. However, before the accused appellant could get married to Manju, he came to be arrested in connection with one offence registered against him under Section 307 of the IPC. He has deposed that Sangeeta (deceased) was highly opposed to the idea of her husband Ramanand getting married to Manju. He has further deposed that the accused appellant killed his wife and four children in the hope that he may receive some monetary compensation from the Government. In his cross examination, the PW 1 has deposed that his house is at a distance of one kilometre from the house of the accused appellant. When the accused appellant reached his house at 6:30 in the morning on the day of the incident, the PW 1 found the accused appellant in lot of tension. In his cross examination, he has categorically deposed that he was at the police station up to 2 o clock in the night i.e. upto 23rd of January, 2010 at 2 A.M. He has deposed in so many words that the accused appellant Ramanand was also with him at the police station all throughout. He has deposed that while he left the police station, Ramanand accused appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and desperately wanted to get married to Manju. Because of the extra marital affair, Sangeeta was being harassed by the accused appellant. However, what is important to note in the evidence of the PW 2 is that Ramanand had visited his house also at 7 o clock in the morning. The PW 2 also saw Pratap and PW 1, Shambhu Raidas at the house of the accused appellant trying to douse the fire with water. One important feature of the deposition of the PW 2 is that the accused appellant was taken away by the police between 8 A.M. and 9 A.M. on the day of the incident. 34. The prosecution has examined the PW 3, Babu Ram Hans to prove the extra judicial confession. The PW 3 in his examination in chief has deposed that on 23.01.2010 while he was at his house, the accused appellant came about 9 o clock in the morning and informed about the incident. According to the PW 3, the accused appellant is said to have confessed before him of having brutally killed his wife and four minor children. According to the PW 3, the accused appellant sought his help as the PW 3 was a leader of the BSP ruling party at the relevant point of time. However, the PW 3 declined to help the accused appellant in any manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sply. Dr. Sharma in his examination in chief has deposed that on 23.01.2010, he was posted as a radiologist at the District Mahila Chikitsalaya, Lakhimpur. On that day, three dead bodies were brought to the hospital for post mortem. He has deposed that he had performed the post mortems of all the three dead bodies. He has recorded the injuries noticed by him in the post mortem reports of each of the three deceased persons. According to Dr. Sharma, the cause of death of all the three deceased persons was shock and haemorrhage as a result of the ante mortem injuries. He has deposed that he also noticed post mortem burn injuries on all the three dead bodies. He has deposed that the injuries could have been caused by a sharp edged weapon like Banka. 39. Nothing turns around so far as the evidence of the PW 5, Dr. A.K. Sharma is concerned. 40. The prosecution has examined the PW 6, Uma Shankar Mishra. At the relevant time, the PW 6, Uma Shankar Mishra was serving as the Sub Inspector, Chowki in charge Bahjam, Police Station Neem Gaon, District Lakhimpur Kheri. He has deposed that on 24th of November, 2010, he was posted at the Dhaurhara Police Station. According to him, the accused appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acerated wound 5 cm x 0.5 cm on middle of the head; 2 cm away from Injury 1. 3. Lacerated wound 4.5 cm x 0.5 cm on middle of the head; 1 cm away from Injury No. 2. 4. Superficial burn injury on left side of neck in length 8 cm x 6 cm. 5. Superficial burn injury on right side of neck in length 10 cm x 7 cm. 44. Dr. Singh has further deposed that all the injuries were simple in nature and fresh. During the medical examination, the clothes of the accused appellant were smelling of kerosene oil. In the cross examination of Dr. Singh, he has deposed that the injuries Nos. 1, 2 and 3 resply noted during the medical examination of the accused appellant could have been caused with the butt of a gun. He has deposed that the injury Nos. 4 and 5 resply could have been suffered by the accused appellant while trying to rescue. He has deposed that at the time of medical examination of the accused appellant, there was no fresh bleeding from the wounds. At the time of cleaning the wounds with cotton, the blood started to ooze. He has deposed that the injuries could not have been 12 hours old. PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANTIAL EVIDENCE 45. In A Treatise on Judicial Eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Maharashtra, (1984) 4 SCC 116, held as under: 152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followed and applied by this Court in a large number of later decisions up to date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] : It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. ?∙ The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word presumption, ex vi termini, imports an inference from facts; and the adjunct presumptive, as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iander field and from a bush he took out the weapon of offence (Banka) and the blood stained clothes. The weapon of offence and the blood stained clothes were collected in the presence of the two panch witnesses and the panchnama Exh. 5 was accordingly drawn. The weapon of offence and the blood stained clothes thereafter were sent for the Serological Test to the Forensic Science laboratory. We are of the view that the Courts below committed a serious error in relying upon this piece of evidence of discovery of a fact, i.e., the weapon clothes at the instance of the accused as one of the incriminating circumstances in the chain of other circumstances. We shall explain here below why we are saying so. 52. Section 27 of the Evidence Act, 1872 reads thus: 27. How much of information received from accused may be proved. Provided 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. 53. If, it is say of the investigating officer that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PW 2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under: Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of Naamdar Purwa, Hamlet Amethi, original resident of villageBasadhiya, Police Station Isanagar, District Lakhimpur Kheri has been taken out of the lock up, taken in confidence and then interrogated by me the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station Tambaur, District Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pant shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pant shirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet Amethi for the purpose of recovery. [Emphasis supplied] 60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW 7, investigating officer PW 6, Sub Inspector the exact statement has not been deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence. 61. Further, the examination in chief of the PW 6, Sub Inspector and PW 7, investigating officer does not indicate tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: I pushed him down such and such mineshaft , and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft. [Emphasis supplied] 66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words: 10. .It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence. 69. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out of the weapon may, at the best, prove the appellant s knowledge as to where the weapon was kept. 70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as 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. The information might be confessional or non inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. 75. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same. EXTRA JUDICIAL CONFESSION 76. It is the case of the prosecution that on 23.01.2010 the accused appellant is said to have visited the house of the PW 3, Babu Ram Hans at about 9:00 o clock in the morning and sought his help. While seeking help from the PW 3, Babu Ram Hans, the accused appellant is said to have made an extra judicial confession that he had brutally killed his wife Sangeeta for not giving consent to him to marry Manju. The accused appellant is also said to have made an extra judicial confession to the PW 3, Babu Ram Hans that he had also killed his four daughters viz. Tulsi, Lakshmi, Kajal and Guddi and thereby had com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect us to believe that the accused appellant was present at three different places on or about the same time. Either we believe PW 1, Shambhu Raidas (first informant) that the accused appellant visited his house at 06:30 in morning or we believe the PW2, Chhatrapal Raidas, who has deposed that the accused appellant had visited his house at 07:00 o clock in the morning or we believe the PW 4, Ram Kumar that the accused appellant had visited his house at 06:30 in the morning. How is it possible for the accused appellant to be present at three different places in or around between 06:30 A.M. to 07:30 A.M. One another aspect that makes the oral evidence of the PW 4, Ram Kumar very doubtful is that his house is situated at a distance of 6 7 kilometers from Dhaurhara and according to the PW 4, the accused appellant visited his house all the way walking from his own house. The PW 4, Ram Kumar also appears to be a got up witness only for the purpose of creating evidence in the form of extra judicial confession. At this stage, we may once again go back to the oral evidence of the PW 1, Shambhu Raidas (Exh.1). In his evidence, he has said, the inspector had not interrogated me at the police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions may be divided into two classes, i.e. judicial and extra judicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extra judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the CrPC or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra judicial confessions, two questions arise: (i) were they made voluntarily? And (ii) are they true? As the Section enacts, a confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So, where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe Evidence, 9th Edn. Page 284). A promise is always attached to the confession, alternative while a threat is always attached to the silence alternative; thus, in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 82. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction. 83. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments, in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under: 15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10) 10. An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Others v. State of Punjab, (1977) 4 SCC 452, held that the law does not require that the evidence of an extra judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated. 85. The sum and substance of the aforesaid is that an extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession. MOTIVE 86. The Courts below have relied upon the strong motive for the accused appellant to commit the crime as one of the incriminating circumstances. It is the case of the prosecution that the accused appellant desperately wanted to get married to Manju. Manju herself at the relevant point of time was a married lady. It appears from the evidence on record that the accused appellant had e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused appellant with Manju, then it is possible that the deceased Sangeeta might be an absolutely helpless lady and could not have done anything in that regard. However, the moot question is should this motive by alone be held sufficient to convict the accused appellant for the alleged crime and sentence him to death. 89. In the case of Sampath Kumar v. Inspector of Police Krishnagiri, (2012) 4 SCC 124, decided on 02.03.2012, this Court held as under: 29. In N.J. Suraj v. State [(2004) 11 SCC 346 : 2004 SCC (Cri) Supp 85] the prosecution case was based entirely upon circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected the motive which was the only remaining circumstance relied upon by the prosecution stating that the presence of a motive was not enough for supporting a conviction, for it is well settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused. 30. To the same effect is the decision of this Court in Santosh Kumar Singh v. State [(2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469] and Rukia Begum v. State of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the weapon of offence as not having been established, the chain of circumstantial evidence snaps so badly that to consider any other circumstance, even like motive, would not be necessary. FALSE EXPLANATION OFFERED BY THE ACCUSED APPELLANT AS AN ADDITIONAL LINK 92. It is the case of the prosecution all throughout that the accused appellant offered false explanation in his defence. To put it in other words, according to the courts below the say of the accused appellant that on the fateful night of the incident four unidentified persons killed his wife and daughters mercilessly and thereafter, set their dead bodies on fire stood falsified, in view of the incriminating circumstances pointing towards the guilt of the accused. According to the trial court and the High Court, the explanation offered by the accused appellant in regard to the injuries suffered by him on his head is established to be false. In such circumstances, both the courts took the view that the false explanation offered by the accused appellant is an additional link in the chain of circumstances. 93. It appears from the materials on record that in all, three further statements of the accused appellant were recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court. 97. Before a false explanation can be used as an additional link, the following essential conditions must be satisfied: (i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved. (ii) Such circumstances points to the guilt of the accused as reasonable defence. (iii) The circumstance is in proximity to the time and situation. 98. If the aforesaid conditions are fulfilled only then a Court use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. [see Sharad Biridhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622] 99. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is innocent therefore requires the state to prove the defendant's guilt. [Emphasis supplied] 102. The above quote thus seemingly concedes a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction. 103. This applies with full force particularly in fact situations like the one on hand where the charge is sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard. 104. Addressing this aspect, however, is the following extract also from the same treatise The Law of Evidence fifth edition by Ian Dennis at page 483: Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, fact finders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not merely fanciful , it must follow that there is a reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas the other two injuries as superfluous burn injuries. It was argued before us by the learned counsel appearing for the State that the injuries found on the body of the accused appellant points towards his complicity in the crime. It was also sought to be argued that the explanation offered by the accused appellant in regard to the injuries suffered by him is falsified by the circumstantial evidence on record. On the other hand, the defence also argued that the non explanation of the injuries suffered by the accused appellant at the end of the prosecution is fatal. Thus, both the sides want to make the most of the injuries which were found on the body of the accused appellant. 107. We are of the view that both the sides are wrong in their own way. The settled law is that if there are serious injuries or grievous injuries found on the body of the accused then the prosecution owes a duty to explain such injuries and the failure on the part of the prosecution to explain may point towards the innocence of the accused. At the same time, the well settled law is that if the injuries are superfluous or minor in nature then the prosecution need not explain such injuries. In the case on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are circumstances which makes prosecution case doubtful. For the relevant purpose, the relevant extract of paragraph 10 is extracted as below: 10. ....But non explanation of injuries assumes significance when there are material circumstances which make the prosecution case doubtful. Reference in this connection may be made to recent decisions of this Court in the cases of Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] and Kashiram v. State of M.P. [(2002) 1 SCC 71 : 2002 SCC (Cri) 68]. In the present case, non explanation of injuries on the appellant by the prosecution assumes significance as there are circumstances which make the prosecution case, showing the complicity of the appellant with the crime, highly doubtful. [Emphasis supplied] 112. In Mohar Rai and Bharath Rai v. State of Bihar, AIR 1968 SC 1281, it was observed: 6. ..In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of 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 imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal (supra), this Court cautioned human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions . This Court has held time and again that between may be true and must be true there is 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 120. Article 39A of the Constitution speaks about free legal aid which reads thus: 39A. Equal justice and free legal aid. The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 121. Section 304 of the CrPC refers to legal aid to the accused at State expenses in certain cases which reads thus: 304. Legal aid to accused at State expense in certain cases. (1)Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense 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 Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law . Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of 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 correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the undefended accused or at least provide good guidance to the advocate who is appointed as amicus curiae or an advocate from the legal aid panel to defend the case of the accused persons. Then only the effective and meaningful legal aid would be said to have been provided to the accused. 127. This Court, in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra, reported in (1978) 3 SCC 544, had emphasized upon the need of securing the competent and efficient legal services for a prisoner who is standing trial in a criminal case or for the commission of alleged offence. This Court, in paragraphs 14,15 and 18 of the above judgment, held as under: 14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural 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 Anglo American models and our judicial process, engineered by kindred legal technology, compel the collaboration of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more serious class of cases which threaten a person with imprisonment is regarded as an essential component of the administration of criminal justice and as part of procedural fair play. This is so without regard to the sixth amendment because lawyer participation is ordinarily an assurance that deprivation of liberty will not be in violation of procedure established by law. In short, it is the warp and woof of fair procedure in a sophisticated, legalistic system plus lay illiterate indigents aplenty. The Indian socio legal milieu makes free legal service, at trial and higher levels, an imperative processual piece of criminal justice where deprivation of life or personal liberty hangs in the judicial balance. 128. In the aforesaid context, we may refer to the National Legal Services Authority (Free and Competent Legal Services) Regulations, 2010, more particularly, the Regulation 15, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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