Criminal Law – Murder – Interested and related witnesses – Deceased had four sonsincluding the appellant--accused No.1 and P.W.1-–Six persons were murdered at different places in thehouse, witnessed by P.W.1- and P.W.2- (P.W.1-’s brother-in-law) – One was killed in angan, two in verandah, two inroom and one was killed in a room upstairs –Appellants--accused Nos. 1, 3 and 4 convicted for offence punishable u/ss.302/34 IPC and sentenced to death – Accused No.2 was acquitted– On appeal, held: Both P.W.1- and P.W.2- are witnesses, who are closely related to the deceased as well as the accused No.1–These two witnesses cannot be considered to be wholly reliable to base an order of conviction solely on their testimonies –However, they cannot be said to be wholly unreliable either – They would fall in the category of ‘neither wholly reliable nor wholly unreliable’– A greater degree of care and caution would be required and a corroboration in material particulars by reliable testimony, direct or circumstantial, would be necessary to pass an order of conviction – Even if the evidence of P.W.1 and P.W.2- is taken at its face value, the accused have murdered six deceased at different places andif their version is compared with the site-plans, it is difficult to believe that they could have also seen the accused assaulting the deceased who were killed in the rooms which are in the middle portion of the house or in the room upstairs –P.W-9 (IO) admitted that P.W.1- and P.W.2- had not told him about their hideouts and that is why it was not mentioned in the site- plan – Prosecution failed to prove the case beyond reasonable doubt–Conviction and death sentence imposed on the accused is unsustainable in law, to be released– Appeal filed against acquittal of Accused No.2 is also sans any merit –Penal Code, 1860 – ss.302/34 – Arms Act – s.25/4– Evidence Act, 1872 – Code of Criminal Procedure, 1973 – s.313. Evidence – Murder – Related witnesses – Credit worthiness of – Held: Merely because the witnesses are interested and related witnesses, it cannot be a ground to disbelieve their testimony – However, the testimony of such witnesses has to be scrutinised with due care and caution – Upon scrutiny of the evidence of such witnesses, if the Court is satisfied that the evidence is creditworthy, then there is no bar on the court in relying on such evidence. Evidence – Murder – Non-examination of independent witnesses – Held: A large number of villagers had gathered at the spot after the incident – However, none of the independent witnesses were examined by the prosecution – Since the witnesses examined on behalf of the prosecution are interested witnesses, non-examination of independent witnesses, though available, would make the prosecution version doubtful.
Evidence – Other circumstances – Murder of six persons at different places in the house – Eye-witnesses were related witnesses and were found not wholly reliable – Other circumstances relied on by the prosecution – Discussed.
Evidence Act, 1872 – s.27– Murder –Recovery of bloodstained clothes allegedly worn by the accused while committing the crime – Held: Said clothes were not recovered on the memorandum of the accused u/s.27 and as such, the said circumstance could not have been used against the accused.
Evidence Act, 1872 – s.27 – Held: Only such information, which distinctly relates to the discovery of facts will be admissible u/s.27 – In the present case, one of the alleged recoveries is from the room where one of the deceased used to sleep –Other two recoveries are from open field, just behind the house of other deceased, i.e., the place of incident –The recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries.
Criminal Law – Motive – Proof of – Held: In case of direct evidence and the ocular testimony of the eye-witness being found to be reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime – However, in the present case, the testimony of the eye-witnesses could not be said to be wholly reliable, thus the motive would be a relevant factor.
Criminal Law – Criminal Jurisprudence –Prosecution failed to prove guilt of accused beyond reasonable doubt – Death penalty awarded by Trial Court, confirmed by High Court – Deprecation by Supreme Court.
Allowing the appeals filed by accused persons while dismissing that of the P.W-1, the Court
HELD: 1.1 Both P.W.1- and P.W.2 are witnesses, who are closely related to the deceased as well as the accused No.1. Merely because the witnesses are interested and related witnesses, it cannot be a ground to disbelieve their testimony. However, the testimony of such witnesses has to be scrutinised with due care and caution. Upon scrutiny of the evidence of such witnesses, if the Court is satisfied that the evidence is creditworthy, then there is no bar on the court in relying on such evidence. Both P.W.1- and P.W.2- are witnesses, who are closely related to the deceased and the accused No.1-. Therefore, it will be necessary to scrutinise their evidence with more care, caution and circumspection. Even if the evidence of P.W.1 and P.W.2 is taken at its face value, the accused have murdered six deceased at different places. As per the admission given by P.W.1-, the house of the accused No.1- is 15 steps away from the place where he was hiding in the compound. According to him, there are a total of 5 rooms in the house where the incident took place. He has stated in his cross-examination that Shaukeen Khan (brother) was murdered in the Angan of the house and his father Mausam Khan was murdered in the veranda. His niece Muskan was also murdered in the veranda. His mother-Asgari and nephew Samad were murdered in the room which is 15 steps away from the kitchen, whereas deceased Shanno (sister-in-law) was murdered in a room upstairs. He has further admitted that the aforesaid room cannot be seen from the kitchen and the door of the aforesaid room opens towards south. [Paras 28, 31 and 32] [785-A-B; 786-E, F-H; 787-A]
1.2 A perusal of the evidence of the P.W.1 and the evidence of P.W.9- would reveal that the first site-plan (Exhibit Ka-51) was prepared by P.W.9 on P.W.1-’s pointing out the details. All the three site-plans (Exhibits Ka-51, Ka-52 and Ka-45) have been prepared by P.W.9-, the I.O. The first site-plan (Exhibit Ka-51) shows the places where the dead bodies of the deceased were found. Serial No.1 in the said site--plan is the place where the dead body of deceased Shaukeen Khan was found. Serial No.2 is the spot where the dead body of deceased Mausam Khan was found. Serial No.3 is the spot where the dead body of deceased Shanno Begam was found. Serial No.4 is the spot where the dead body of deceased Muskan was found. Serial No.5 is the spot where the dead body of deceased Asgari was found. Serial No.6 is the spot where the dead body of deceased Samad was found. The arrow marks in the said site-plan show the direction in which the accused fled away from the rear gate. It is to be seen that in the said site-plan, the room on the southern side is not shown. The second site-plan (Exhibit Ka-52) is with regard to the recovery of weapons made at the instance of the accused from the field of the deceased Shaukeen Khan. The third site-plan (Exhibit Ka-45), which is drawn in connection with Case Crime No.26 of 2014 under Section 25/4 of the Arms Act, also shows the places from where the weapons alleged to have been used in the crime, were recovered at the instance of the accused. In the last two site-plans at Exhibit Ka--52 and Exhibit Ka-45, a room has been shown on the southern side. According to the evidence of P.W.1, the room in which he hid himself in the south, is the Kitchen. As per his evidence, the door of the kitchen opens to the north, whereas as per the third site-plan (Exhibit Ka-45), the gate of the said room on southern side, opens towards west. As per the version of P.W.2, he has witnessed the incident from the place where the buffaloes are tethered, which is adjacent to the bathroom. Though the bathroom is not shown in the site-plan, believing it to be adjacent to the place where buffaloes are tethered, it will be in the south-west corner. [Paras 35, 37-43] [787-F-G; 791-A-H]
1.3 As per the testimonies of P.W.1 and P.W.2, firstly Mausam Khan was assaulted and done away with in veranda, whereas deceased Shaukeen Khan was done away with in the court- yard. Deceased Muskan, Asgari and Samad were assaulted in the rooms, which are in the middle portion of the house. According to these witnesses, Shanno Begam was assaulted upstairs. If the version of these two witnesses is compared with the site--plans, then the position that emerges would reveal that P.W.1-, at the most, could have witnessed the assault on deceased Shaukeen Khan, whereas P.W.2 could have witnessed the assault on deceased Mausam Khan and deceased Shaukeen Khan. However, since from the perusal of the first site -plan (Exhibit Ka--51), it could be seen that the dead -bodies of deceased Muskan, Samad, and Asgari were inside the house, and the dead -body of deceased Shanno Begam was upstairs, it is difficult to believe that these two witnesses could have also seen the accused assaulting Shanno Begam, Muskan, Asgari and Samad. It is further to be noted that P.W.9- in his cross- examination has admitted that P.W.1 and P.W.2- had not told him about their hideouts and that is why it was not mentioned in the site- plan. These two witnesses cannot be considered to be wholly reliable to base an order of conviction solely on their testimonies.As already discussed, though P.W.1- could have witnessed the assault on deceased Shaukeen Khan and P.W.2- could have witnessed the assault on deceased Shaukeen Khan and deceased Mausam Khan, it is difficult to believe that they could have witnessed the assault on the other four deceased persons. The said witnesses cannot be said to be wholly unreliable. They would fall in the category of ‘neither wholly reliable nor wholly unreliable’ and as such, a greater degree of care and caution would be required and acorroboration in material particulars by reliable testimony, direct or circumstantial, would be necessary to pass an order of conviction. [Paras 44,45 and 47][792-A-E; 793-C-D]
Vadivelu Thevar & another v. The State of Madras (1957) SCR 981 – relied on.
2.1 The other circumstances relied on by the prosecutionArrest of the accused immediately after the incident: It is difficult to believe that accused Nos. 1, 3 and 4 were waiting at Rajghat square, which is at a distance of hardly half a kilometre from the place of occurrence, waiting for the Police to come and arrest them. The alleged informer has neither been named nor has he been examined. It is further difficult to believe that accused No.2- was wandering in the village and coincidently at 6.40 a.m., crossed paths with P.W.9-(I.O.), when he was returning to the police station along with other accused. It is clear admission of P.W.2 -that when he and P.W.1 had gone to the police station to give the written report, (A-1), (A-2), (A-3) and (A-4) were already present there in the police station. According to the prosecution, the crime is registered on 23rd January, 2014 at 10.00 p.m. when both P.W.1 and P.W.2 were present. If the version of P.W.2-, that all the four accused were present at the police station when they had gone to lodge the FIR, is to be believed, then the arrest of the accused Nos. 1, 3 and 4 at 2.00 a.m. on 24th January, 2014 and arrest of accused No.2 at 6.40 a.m. on the same day is mysterious. [Paras 52, 53][794-G-H; 795-A-D]
2.2 Recovery of the weapons alleged to have been used in the crime at the instance of the accused.
Insofar as the recovery of the weapons alleged to have been used in the crime at the instance of the accused is concerned, the prosecution has relied on the arrest-cum-recovery memo, which is at Exhibit Ka-49. Though the memo shows that the said recoveries were made in the presence of public witnesses, no public witness has been examined to support the same. Since no public witness has been examined to support the said memo, the statement made therein will have to be scrutinised with greater caution and circumspection. All the statements made therein with regard to the confession of committing the crime would not be admissible in evidence. Only such information, which distinctly relates to the discovery of facts will be admissible under Section
27 of the Indian Evidence Act, 1872. One of the alleged recoveries is from the room where deceased Asgari used to sleep. The other two recoveries are from open field, just behind the house of deceased Shaukeen Khan, i.e., the place of incident. It could thus be seen that the recoveries were made from the places, which were accessible to one and all and as such, no reliance could be placed on such recoveries. [Paras 54-56][795-D-E; 796-E-F; 797-C-F]
2.3 Recovery of the bloodstained clothes alleged to have been worn by the accused while committing the crime. As per the prosecution witnesses, the accused had run away from the rear gate of the compound, which is towards north. As per the evidence of P.W.1-, the house of (A-1) is at a distance of 10-15 steps away from the place of the incident. According to the prosecution witnesses, immediately after the incident occurred, many villagers had gathered at the spot. In these circumstances, it is again a mystery as to how all the four accused fled from the spot, came back at the said spot, changed their clothes and again went away. It is also a mystery as to how the accused Nos. 3 and 4, who are not residing in A-1’s house, had changed their clothes and kept them at A-1’s house. This coupled with the fact that the F.S.L. reports are inconclusive, creates a great shadow of doubt on the genuineness of the said recovery. In any case, the said clothes are not recovered on the memorandum of the accused under Section 27 of the Evidence Act and as such, the said circumstance could not have been used against the accused. [Para 58][798-C-E]
2.4 Motive
In case of direct evidence and the ocular testimony of the eye-witness being found to be trustworthy, reliable and cogent, it will not be necessary for the prosecution to prove the motive for the crime. However, in the present case,the testimony of the eye-witnesses could not be said to be wholly reliable, the motive aspect would be a relevant factor.As per the prosecution version, the main motive behind the crime was with regard to the dispute over the management of the brick-kiln between the accused No.1on one hand and deceased Mausam Khan, deceased Shaukeen Khan and P.W.1- on the other hand.In his cross-examination, P.W.1has clearly admitted that it is A-1 and family who had dispute with him over the property of brick-kiln. The said dispute was over details of accounts. He has admitted that accused Nos. 3 and
4 had nothing to do with regard to brick-kiln of his father deceased Mausam Khan. With regard to (A-3) and (A-4), the prosecution has utterly failed to prove any motive and has also failed to prove any strong motive insofar as (A-1) is concerned. There are various other inconsistencies and lacunae in the prosecution case. According to P.W.1 and P.W.2, a large number of villagers had gathered at the spot after the incident. However, none of the independent witnesses have been examined by the prosecution. Since the witnesses examined on behalf of the prosecution are interested witnesses, non-examination of independent witnesses, though available, would make the prosecution version doubtful. The evidence of P.W.9 (I.O.) would show that though fingerprints were taken at the spot, the fingerprint expert’s report is not placed on record. Similarly, his further evidence would reveal that though he had come to the spot with the dog squad, report of the dog squad is also not placed on record. This also casts a doubt with regard to the genuineness of the prosecution case. Apart from that, it could be seen that, though it is the assertion of P.W.1 and P.W.2 that they together had gone to the police station to lodge the report, the same has been contradicted by the evidence of P.W.4-, who was the Constable Clerk at the police station. Coupled with the fact that though P.W.1 and P.W.2, had mobile phones, they had not informed the Police on phone, also casts a serious doubt with regard to the genuineness of the prosecution case. The prosecution has utterly failed to prove the case beyond reasonable doubt. The conviction and death sentence imposed on the accused is totally unsustainable in law. To be released forthwith, if not required in any other offence.Theappeal filed by the P.W.1 with regard to acquittal of accused No.2 is sans any merit. [Paras 59-61, 65-70, 83 and 84][800-E-G; 801-D-E, F-G; 808-B-E] State of Rajasthan v. Teja Singh and others (2001) 3 SCC 147; Joydeb Patra and others v. State of West Bengal (2014) 12 SCC 444 : [2013] (4) SCR 192; The State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh (1974) 3 SCC 277 : [1974] (1) SCR 328; Anand Ramachandra Chougule v. Sidarai Laxman Chougala and others (2019) 8 SCC 50 : [2019] (11) SCR 14 – relied on.
Piara Singh and others v. State of Punjab (1977) 4 SCC
452 : [1978] (1) SCR 597; Anil Phukan v. State of Assam (1993) 3 SCC 282 : [1993] (2) SCR 389 – referred to. Pulukuri Kottayya and others v. King Emperor AIR 1947 PC 67 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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