Asar Mohammad and Ors. vs The State of U.P.

Dismissing the appeal of appellant No.1 and partly allowing the appeal of appellant Nos. 2 and 3, the Court HELD: 1. No direct evidence has been produced by the prosecution regarding the involvement of the appellants in the commission of the crime. The prosecution rests its case solely on circumstantial evidence. The fact that PW-1, PW-2 and PW-3 became hostile and the prosecution could not establish the factum of motive cannot be the basis to doubt the correctness of the finding of guilt recorded by the two courts against the accused on the basis of other proved circumstances including the confession of the accused No.1 about the murder of the deceased persons and more importantly, having dumped the dead bodies in the septic tank in the backyard of their house and to have led the police to that place from where the two dead bodies, whose identity also has not been disputed, came to be recovered, coupled with the medical evidence that the cause of death of the two dead persons was due to the ante-mortem injury caused on the neck resulting in their death due to asphyxia and is a homicidal death. [Paras 8 and 11][257-F]

Padala Veera Reddy v. State of Andhra Pradesh and Ors. (1989) Supp. (2) SCC 706; Mulakh Raj & Ors. v. Satish Kumar & Ors. (1992) 3 SCC 43 : [1992] 2 SCR 484; Nika Ram v. State of Himachal Pradesh (1972) 2 SCC 80 : [1973] 1 SCR 428 – relied on.

2. After perusing the entire evidence and taking the totality of the proved circumstances into account, the Court is in agreement with the conclusion reached by the trial court, which came to be affirmed by the High Court, regarding finding of guilt against appellant No.1, who had confessed to the police and also led the police party to the place where the dead bodies were dumped. [Para 12][261-H; 262-A]

3. If an offence takes place inside the privacy of a house where the accused have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, is insisted upon. [Para 12][262-C-D] Trimukh Moroti Kirkan v. State of Maharashtra (2006)

10 SCC 681 : [2006] 7 Suppl. SCR 156 – relied on.

4. The facts need not be self-probatory and the word “fact” as contemplated in Section 27 of the Evidence Act is not limited to “actual physical material object”. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Applying this principle the Court has no hesitation in affirming the finding of guilt recorded against appellant No.1.[Paras 13 and 14][265-C-D; 270-F]

Vasanta Sampat Dupare v. State of Maharashtra (2015)

1 SCC 253 – relied on.

5. Except the confession of the co-accused appellant No.1, the prosecution has not produced any independent substantive evidence to even remotely suggest that appellant Nos.2 and 3 were involved in committing the murder. It is well settled that confession of the co-accused by itself cannot be the basis to proceed against the other accused unless something more is produced to indicate their involvement in the commission of the crime. [Para 15][270-G-H]

Kashmira Singh v. State of Madhya Pradesh [1952] SCR 526; Bhuboni Sahu v. R. (1948-49) 76 IA 147;

Periaswami Moopan, In re ILR (1931) 54 Mad 75; Emperor v. Lalit Mohan Chuckerbutty ILR (1911) 38 Cal 559 – relied on.

Haricharan Kurmi v. State of Bihar [1964] 6 SCR 623 – followed.

6. It is not permissible to proceed against appellant nos.2 and 3 solely on the basis of the confession of appellant No.1 made before the police, even if the relevant part of the confession is admissible and has been duly proved. As no substantive evidence is forthcoming to show the involvement of appellant nos.2 and 3 for having caused the murder, it is not open to convict them for offence punishable under Section 302, IPC. This is also because the charge, as has been framed, is simpliciter for offence under Section 302 and not for offence punishable under Section 302 read with Section 34 of IPC or Section 302 read with Section 120-B of IPC. No evidence has been produced by the prosecution in this regard. These appellants, therefore, will have to be acquitted in connection with offence punishable under Section

302 IPC. [Para 16][272-H; 273-A-C]

7. However, the fact that appellant Nos.2 and 3 cannot be convicted for offence punishable under Section 302 IPC does not extricate them from the offence under Section 201 IPC. The proved circumstances discerned from the record leave no manner of doubt that the deceased were residing along with the appellants in the same house. Further deceased was the second wife of appellant No.3 and deceased ‘I’ was none other than the son of appellant No.3 born in wedlock with deceased ‘Z’. Deceased ‘Z’ was the step mother of appellant Nos.1 and 2 and deceased ‘I’ was their step brother. This relationship has not been disputed. It is also an established fact that the deceased persons had suddenly gone missing for over two months. Obviously, no efforts were made by appellant nos.2 and 3 to trace them nor did they think it necessary to report that fact to the local police. This indeed cannot be a natural behavior or conduct of appellant No.3, the husband of deceased ‘Z’ and father of minor son deceased ‘I’. Further, appellant nos.2 and 3 have not challenged the identity of two dead bodies found from the septic tank in the backyard of their house at the instance of appellant No.1. No explanation whatsoever has been offered by them as to why they did not report about the sudden disappearance of the deceased persons (until their bodies were recovered from the septic tank in the backyard of their house after two months). The concomitant is that appellant Nos.2 and 3 had knowledge that the deceased persons had been murdered and their dead bodies were dumped in the septic tank in the backyard of their house and yet, they did not disclose that fact with an intention to screen appellant No.1, the offender, from legal punishment. In other words, even though they cannot be made liable for the murder for want of legal evidence in that regard, they would certainly be guilty of having committed offence under Section 201 IPC as established from the proved circumstances coupled with their abject failure to offer any explanation, much less cogent explanation, about their conduct. The inevitable and legitimate conclusion to be deduced is that they are guilty of offence punishable under Section 201 IPC. [Para 17][273-D-H; 274-A]