# State of U.P v. Ram Gopal Saini

- **Citation:** (2020) 6 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** Capital Sentence No. 1 of 2017
- **Bench:** Ritu Raj Awasthi, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ram-gopal-saini-45834
- **Pages:** 72

## Headnote

Section 302 IPC- Appeal against conviction.

Standard of Proof -
Deficiency
and
investigation-need
for
establishing chain of events to prove guilty of
accused.

Omission on part of investigation -
No FIR registered by police without any
satisfactory explanation which adversely affect
prosecution case and caused doubt.

Delay in recording-the statement of
witnesses -
Caused serious doubt as to genuineness of
prosecution
case
and
rendering
the
investigation defective.

Section 173 (2) Cr.P.C.-Submission of
charge sheet -
In absence of direct evidence or insufflated
circumstantial evidence submission of charge
sheet against the accused illegal. (Para 51 &
52 )

Credibility of evidence -
Inimical and interested witness - Testimony -
to be considered concisely by the trial.

Motive -
Death by pesticide poison - prosecution failed
to prove the motive any evidence or procuring
pesticide by accused.

Circumstantial evidence -
The accused were not last seen with the
deceased.

Hostile witnesses -
And failure to prove other circumstances -
failure to discharge initial burden of proof.

The failure of prosecution to prove it's
case beyond reasonable doubt-
The conviction by trial court based only on
speculation, inferences and suspicion.

Appeal allowed.

List of cases cited:-

## Text

_Characters 0–39,872 of 227,780. This is a partial read: ask again with offset=39872 for what follows._

952 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Office is directed to transmit the
lower court record along with copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2020)06ILR A952
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2020

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Capital Sentence No. 1 of 2017
&
Criminal Appeal No. 358 of 2017

State of U.P. ...Appellant
Versus
Ram Gopal Saini ...Respondent

Counsel for the Appellant:
Govt. Advocate, Nagendra Mohan

Counsel for the Respondent:
-----

Section 302 IPC- Appeal against conviction.

Standard of Proof -
Deficiency
and
investigation-need
for
establishing chain of events to prove guilty of
accused.

Omission on part of investigation -
No FIR registered by police without any
satisfactory explanation which adversely affect
prosecution case and caused doubt.

Delay in recording-the statement of
witnesses -
Caused serious doubt as to genuineness of
prosecution
case
and
rendering
the
investigation defective.

Section 173 (2) Cr.P.C.-Submission of
charge sheet -
In absence of direct evidence or insufflated
circumstantial evidence submission of charge
sheet against the accused illegal. (Para 51 &
52 )

Credibility of evidence -
Inimical and interested witness - Testimony -
to be considered concisely by the trial.

Motive -
Death by pesticide poison - prosecution failed
to prove the motive any evidence or procuring
pesticide by accused.

Circumstantial evidence -
The accused were not last seen with the
deceased.

Hostile witnesses -
And failure to prove other circumstances -
failure to discharge initial burden of proof.

The failure of prosecution to prove it's
case beyond reasonable doubt-
The conviction by trial court based only on
speculation, inferences and suspicion.

Appeal allowed.

List of cases cited:-

1. Sharad Birdhchand Sarda Vs. St. of Maha.
[(1984) 4 SSC 116]
6 All. State of U.P. Vs. Ram Gopal Saini
953
2. Dhan Raj @ Dhand Vs. St. of Haryana
[(2014) 6 SSC 745]

3. Gargi Vs. St. of Haryana [(2019) 9 SSC 738]

4. State of Kerala Vs. Anilachandran @ Madhu
& ors. [(2009) 13 SSC 565]

5. Jose @ Pappachan Vs. Sub Inspector of
Police Koyilandy & Another[(2016) 10 SSC
519]

6. Kalu @ Laxminarayan Vs. St. of M.P.
[(2019) 10 SSC 211]

7.
Trimukh
Maroti
Kirkan
Vs.
St.
of
Maharashtra [(2006) 10 SSC 681]

8. Mulakh Raj etc. Vs. Satish Kumar and
others [AIR 1992 SC 1175]

9. Phula Singh Vs. St. of H.P., [(2014) 4 SSC
9]

10. Jai Narain and others Vs. St. of U.P.,
[(2003) Criminal Law Journal 168]

11. Vijay Pal Vs. St. (Government of NCT of
Delhi [(2015) 4 SSC 749]

12. Mukesh and another Vs. St. (NCT of Delhi)
& others [(2017) 6 SSC 1]

13. Swamy Shraddananda @ Murli Manohar
Mishra Vs. St. of Karnataka [(2007) 12 SSC
288]

14. Jahira Habibulla H. Sheikh and another Vs.
St. of Gujarat & others [(2004) 4 SSC 158]

15. Ramesh Kumari Vs. St. (NCT of Delhi)
& other [(2006) 2 SSC 677]

16. Ram Das & Ors. Vs. St.of Maharashtra
[(2007) 2 SSC 170]

17. Ganesh Bhavan Patel Vs. St. of
Maharashtra [(1978) 4 SSC 371]

18. K. Veeraswami Vs. Union of India and
others [(1991) 3 SSC 655]

19. State of Rajasthan Vs. Kalki [(1981) 2
SSC 752]

20. Raju Vs. St. of T.N. [(2012) 12 SSC
701]

21. Vijendra Singh Vs. St. of U.P. [(2017)
11 SSC 129]

22. Ramashish Rai Vs. Jagdish Singh [AIR
2005 SC 335, (2005) 10 SSC 498]

23. Kirti Pal Vs. St. of W.B. with Durga
Sutradhar Vs. St. of West Bengal & ors
[(2015) 11 SSC 178]

24. Virendra @ Buddhu and ors. Vs. St. of
U.P. [(2008) 16 SSC 582]

25. Bodhraj @ Bodha and ors. Vs. St. of J
& K [(2002) 8 SSC 45]

26. T. Shankar Prasad Vs. St. of A.P.
[(2004) 3 SSC 753]

27. St. of U.P. Vs. Ramesh Prasad Misra &
Anr. [(1996) 10 SSC 360]

28. Himanshu @ Chintu Vs. St. (NCT of
Delhi) [(2011) 2 SSC 36]

29. R. Shaji Vs. St. of Kerala [(2013) 14
SSC 266]

30. Suresh Vs. St. of Haryana [(2018)18
SSC 654]

31. Binay Kumar Singh Vs. St. of Bihar
[(1997) 1 SSC 283]

32. Jumni and others Vs. St. of Haryana,
[(2014) 11 SSC 355]

33. Prem Kumar Gulati Vs. St. of Haryana
[(2014) 14 SSC 646]

34. Sheo Shankar Singh Vs. St. of Jharkhand
and another [(2011) 3 SSC 654]

35. Surajit Sarkar Vs. St. of W.B. [(2013) 2
SSC 146]
954 INDIAN LAW REPORTS ALLAHABAD SERIES
36. Dharam Deo Yadav Vs. St. U.P. [(2014) 5
SSC 509]

37. Tanviben Pankajkumar Divetia Vs. St. of
Gujarat [(1997) 7 SSC 156]

38. Main Pal and another Vs. St. of Haryana
and others, [(2004) 10 SSC 692]

39. Machhi Singh and others Vs. St. of Punjab
[(1983) 3 SSC 470]

40. Bachan Singh Vs. St. of Punjab [(1980) 2
SSC 684]

41. Shivaji Vs. St. of Maharashtra alias Dadya
Shankar Alhat Vs. State of Maharashtra
[(2008) 15 SSC 269]

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. Since the Sessions Trial based on
circumstantial
evidences
only,
was
culminated into conviction of the sole
accused for the offence of murder
punishable under Section 302 of the IPC
and
accordingly
death
sentence
is
awarded to him, therefore this Capital
Sentence No.1 of 2017 is before us for
confirmation
of
the
sentence.
The
reference is admitted vide order of a
Division bench of this Court dated
02.03.2017. Simultaneously a Jail Appeal
on behalf of the convict detained in
District Jail Faizabad sent by Jail
Superintendent, is also pending before
this Court bearing no. 358 of 2017.

2. The Court of third Additional
Sessions Judge, Ambedkar Nagar tried the
Sessions Trial no.213 of 2013 under
Section 302 IPC, arisen from the case crime
no.61 of 2013, registered in Police Station,
'Kotwali Tanda', District Ambedkar Nagar,
against the sole accused 'Ram Gopal Saini'
arraigning him for the murder of his
mother, wife and a son of tender age
approximately 4 years. The trial ended with
the conviction and sentence of Death
punishment under Section 302 IPC vide
judgment and order dated 15.02.2017.

3. Sri Nagendra Mohan, Advocate
has put his appearance for and on behalf
of
the
accused
appellant.
Learned
Government Advocate, Sri Vimal Prakash
assisted by Sri Pankaj Kumar Tewari,
A.G.A. represents the 'State' to contest the
appeal and defend the reference case of
confirmation of Death sentence awarded
to the accused appellant. The Session
Judge of Ambedkar Nagar District
Judgeship has already sent with reference
the entire record of trial Court under
Section 366 of CH. XXVIII of Criminal
Procedure Code 1973 for perusal. Since
both, the criminal appeal and the capital
sentence reference would have common
questions of law and fact to be decided,
therefore we think it necessary to hear
and decide them simultaneously through a
common judgment.

1. Facts of the case

4. Before we proceed further with
the pleas for and against the impugned
judgment
and
sentence
of
capital
punishment or 'the Death Penalty', it
would be relevant to have a brief
introduction of the facts involved in the
case. The facts as emerged out from
perusal of the materials and evidences on
record are that one 'Sunil Mali' son of the
sister of the accused appellant approached
the Police Station at 06:45 A.M. on
19.04.2013 to inform that his maternal
grand mother Kama Devi (mother of
appellant), sister in law Kanchan (wife of
appellant) and their son Dhairya are lying
dead on the floor in the house of the
6 All. State of U.P. Vs. Ram Gopal Saini
955
appellant situated at Mohalla Hayatganj,
P.S. Kotwali Tanda, District Ambedkar
Nagar, in the absence of appellant as he
went to attend a feast on the occasion of
house warming (Grih Pravesh) of his
sister's
house
in
Delhi.
On
this
information Police of Tanda Kotwali
Police Station reached at the place of
incident at 07:30 A.M. instantly started
inquest proceeding in the presence of
Tehsildar and made necessary inquiries
and seizure of materials from the spot.
The inquest witnesses reported to had not
given any opinion as to cause of death as
there was no obvious and external mark
of injury on the dead bodies. However,
the dead bodies were lying on the
different places of the house on floor with
vomits etc. In the presence of relatives,
neighbours and police officers on duty the
inquest of all the three dead bodies was
completed by 09:45 A.M. and body was
sent for postmortem. In postmortem
house 'viscera' of the dead bodies was
extracted and sent to Forensic Science
Lab for examination. The report of FSL
was received on 23.11.2013 disclosing
the use of a pesticide named Aluminum
Phosphate (ALP) in the incident. It is
notable here that the proceeding of
inquiry on spot and that of the inquest and
thereafter the postmortem of the dead
bodies all were done without lodging first
information report (FIR) though Sunil
Mali had informed the incident at earliest
on 19.04.2013 in morning at 06:45 A.M.
The father of Kanchan (deceased wife of
the appellant) namely, "Ram Gopal
Verma" was throughout remained present
on the spot since the very beginning in the
morning when inquest started but he
neither expressed any opinion as to cause
of death nor suspected any one to be
culprit. He did not lodge even a
complaint. On 06.05.2013, the said Ram
Gopal Verma moved a written complaint
to the police to the effect that Ram Gopal
Saini (appellant) developed relations with
his daughter Kanchan (deceased) and
entered into love marriage with her about
four years ago and since then they were
cohabiting as husband and wife in the
house of accused appellant with his
mother Kama Devi (deceased). Out of
their wedlock, a son was begotten namely
'Dhairya'. Accused appellant since before
the marriage with Kanchan had illicit
relation with wife of one Ved Prakash
Gupta
r/o
Hanuman
Garhi,
kept
maintained the same even after the
marriage with Kanchan. In order to
cherish his illicit relation and to make the
same smooth and unrestrained, the
appellant conspired to murder his mother,
wife and son and fulfilled the same. An
F.I.R.
was
registered
on
the
said
complaint dated 06.05.2013 and the
police investigated the matter, arrested the
accused
appellant
on
06.05.2013.
Appellant
had
already
returned
on
19.04.2013 by the time of postmortem
from
Delhi
and
was
present
in
postmortem house. It is also notable that
the evidence shows the accused appellant
prior to incident dated 19.04.2013 was
facing a criminal prosecution on the
complaint of Ram Gopal Verma with
regard to alleged elopement in the year
2008, of his daughter Kanchan (deceased)
on instigation of the appellant to marry
with him. His daughter Kanchan had also
filed a criminal writ in the High Court
wherein she got stay of arrest of accused
appellant. However, in the investigation
of the case founded on complaint dated
06.05.2013 with regard to incident of
alleged murder of Kama Devi, Kanchan
and Dhairya (mother, wife and son of the
appellant) on the basis of evidence of
complainant and other circumstantial
956 INDIAN LAW REPORTS ALLAHABAD SERIES
evidences charge sheet in the Court was
submitted against the appellant. When
after examining the viscera F.S.L. gave
it's report, it was disclosed that a common
pesticide known as Aluminum Phosphate
was the cause of death of all the three
victim of the incident.

5. "Ram Gopal Verma", father of
the deceased wife (Kanchan) of the
accused appellant by moving complaint
with
regard
to
incident
dated
19.04.2013 in writing on 06.05.2013 for
the first time blamed his son in law Ram
Gopal Saini to have committed the
murder of Smt. Kama Devi, Kanchan
and Dhairya. Though the police got first
information of the incident from Sunil
Mali on 19.04.2013 at 06:45 A.M.
moved
for
the
spot
of
incident
informing the area Tehsildar and started
inquest and inquiries there, but did not
register the F.I.R. thereupon. F.I.R. was
registered on the version of complaint
by Ram Gopal Verma on 06.05.2013
only. On investigation, the investigating
officer
arrested
the
accused,
got
recorded his confessional statement as
to his guilt and on his pointing out,
prepared a sitemap on 06.05.2013
indicating the places where the dead
bodies of victims of incident reported
on 19.04.2013 were lying on floor of
the house. Purportedly on the basis of
statements given by witnesses and
confessional statement of the accused
appellant
the
investigating
officer
submitted chargesheet against him in
the concerned court of Magistrate on
31.07.2013. The Magistrate perused the
chargesheet submitted in Crime Case
No.61 of 2013 aforesaid under Sections
302/120B of the IPC, finding the same
exclusively triable by a Court of
sessions passed order of committal to
the court of sessions on 30.08.2013.

2. Charge and evidences in trial

6. The Court of sessions framed the
following charge against the accused on
11.07.2014.

";g fd vki vfHk;qDr us fnukad
le; vKkr LFkku ogn eksgYyk g;krxat Fkkuk
dksrokyh Vk.Mk tuin vEcsndj uxj esa oknh
eqdnek jke xksiy oekZ dh iq=h dapu oekZ
ftlls vkius o"kZ 2008 esa izse fookg fd;k Fkk]
osn izdk'k dh vkSjr ls voS/k lEcU/k gksus ds
dkj.k dapu oekZ (iRuh)] /kS;Z (iq=) dkek nsoh
(ekWa) dh e`R;qdj gR;k dkfjr fd;kA bl izdkj
vkius ,slk dk;Z fd;k gS] tks Hkk0n0l0 dh
/kkjk 302 ds vUrxZr n.Muh; vijk/k gS] vkSj
bl U;k;ky; ds izlaKku esa gSA"

For the easy reference the said
charge as framed above is reproduced by
translator in english.

"That you, the accused on date
and time not known the place in
Mohalla 'Hayatganj' District Ambedkar
Nagar by causing death committed
murder of your wife 'Kanchan' with
whom in the year 2003 you entered into
love marriage, of your mother Kama
Devi and son Dhairya, for the reason of
your illicit relations with wife of one Ved
Prakash Gupta. As such you committed
an offence under Section 300 of the
I.P.C. which is within cognizance of this
Court".

7. Since the accused did not plead
guilty and claimed trial. The prosecution
produced materials and witnesses in
evidence against the accused shown for
6 All. State of U.P. Vs. Ram Gopal Saini
957
the purpose of easy reference in the chart
appended below:-

Sl
No
.
Name
of
Witnes
s
Produ
ced in
Court
as
Mat
erial
prov
ed
by
the
witn
ess
Exhib
it
Rem
ark
1.
Ram
Gopal
Verma
PW-1
Compl
ainant
(father
of
deceas
ed
Kanch
an)
Com
plain
t
date
d
06.0
5.20
19
Ex.
Ka 1

2.
Vinay
Kumar
Verma
PW-2
Brothe
r
of
deceas
ed
Kanch
an

3.
Diksha
Verma
PW-3
Sister
of
deceas
ed
Kanch
an

4.
Dhanan
jay
Verma
PW-4
Brothe
r
of
deceas
ed
Kanch
an

5.
Chhaya PW-5

Verma
Mothe
r
of
deceas
ed
Kanch
an
6.
Shiv
Kant
Pandey
PW-6
Const
able
P.S.
Tanda
Kotwa
li then
Head
Moher
rir
FIR
date
d
06.0
5.20
13

GD
entry
of
FIR
Ex.
Ka 3

Ex.
Ka 4

7.
Sunil
Kumar
Mishra
PW-7
the
Sub
Inspec
tor
posted
on
19.04.
2013
in P.S.
Tanda
Kotwa
li,
Investi
gating
Office
r
Inqu
est
repo
rt of
Dhai
rya

Pape
rs
relati
ng to
hand
ing
over
the
dead
body
of
Dhai
ryato
cons
table
and
letter
with
phot
o of
Ex.
Ka 6

Ex.
Ka 7,
8,
9,
10

Ex.
Ka 11,
12,
13, 14
958 INDIAN LAW REPORTS ALLAHABAD SERIES
dead
body
of
Dhai
rya

Afor
esaid
pape
rs
relati
ng to
dead
body
of
Kam
a
Devi

Afor
esaid
pape
rs
relati
ng to
dead
body
of
Kan
chan

Seiz
ure
Me
mo
of
two
meta
l
glass
es
and
bed
sheet
s
Ex.
Ka 15,
16,
17, 18

Ex.
Ka 18,
19, 20
8.
Om
Veer
Singh
PW-8
Posted
as
SHO,
Tanda
Kotwa
li
on
06.05.
2013
and
took
charge
of
investi
gation
over
then
Site
map
insp
ecte
d the
spot
of
incid
ent
and
prep
ared
site
map
on
point
ing
out
of
com
plain
t
prov
ed.

Char
ge
Shee
t

Mate
rial
Exhi
bits
beds
heets
and
two
meta
l
glass
es
Ex.
Ka 21

Ex.
Ka 22

Materi
al Ex.
1,
2
and 3
6 All. State of U.P. Vs. Ram Gopal Saini
959
9.
Dr. Lal
Chand
PW-9
Posted
as
medic
al
officer
in
Distric
t
Hospit
al,
Distric
t
Ambe
dkar
Nagar
on
19.04.
2013
Post
mort
em
repo
rt of
dece
ased
Kam
a
Devi
.

Post
mort
em
repo
rt of
dece
ased
Kan
chan

Post
mort
em
repo
rt of
Dhai
rya

Four
fore
nsic
repo
rts
of
FSL
Ex.
Ka 27

Ex.
Ka 31

Code
No.14
82 to
1485
of
2013
dated
27.11.
2013

8. The prosecution witnesses
PW-1 to PW-5 turned hostile during
examination before the Court. The rest of
the witnesses from PW-6 to PW-9 being
formal police witnesses involved in doing
investigation and the doctor who did
atrophy on dead bodies, proved their
respective documents in evidence like
memos of seizure of materials collected
from the spot and post mortem report
respectively.
The
trial
court
after
recording of evidence carved out the
incriminating circumstances and facts
therefrom against the accused and called
him to explain those under Section 313 of
the Cr.P.C. The accused submitted the
incriminating evidence against him led by
prosecution witnesses false due to the
enmity and claimed himself absent from
home (the spot of evidence) since before
the date of incident, as he gone Delhi to
join the feast held by his sister on the
occasion of Grih Pravesh Ceremony.

3. A summary of the impugned
judgment

9. The trial judge after hearing the
prosecution and defence counsel in the
light of evidence available on record
framed three points of determination for
it's decision over them, namely-

A) Whether the prosecution has
been successful in proving the charge
under Section 302 of the I.P.C.

B) Whether the accused is
entitled to get benefit of prosecution
witnesses PW-2 to PW-5 having been
hostile against prosecution.

C) Whether the accused has
been successful in giving satisfactory
explanation of his absence from the spot
of incident under Section 106 of the
Indian Evidence Act, 1872.

In determining the aforesaid points
as the discussion in judgment shows, the
trial judge placed reliance on evidence as
to the illicit relations of accused with the
wife of one Ved Prakash Gupta holding
the same a motive for the commission of
960 INDIAN LAW REPORTS ALLAHABAD SERIES
offence by him. He further relied on the
statement of PW-1 charging the accused
appellant that he administered poison to
his mother, wife and son for the aforesaid
motive and allegedly went therefrom to
his sister's house in Delhi. He also held
that the matter rests on the circumstantial
evidence therefore referred the judgments
of Hon'ble Apex Court in Sharad
Birdhchand
Sarda
Vs.
State
of
Maharashtra1 and Dhan Raj @ Dhand
Vs. State of Haryana2 to keep into
consideration while recording finding
over the questions framed by him for
determination. He has held that the First
Information Report Ex. Ka 1 was given in
the police station on 06.05.2013 itself
discloses the fact of accused having
entered into love marriage with his
daughter Kanchan in the year 2008. The
accused had been in illicit relationship
with wife of Ved Prakash Gupta since
before
his
marriage
with
Kanchan
(deceased) and kept maintained the same
even after his marriage. For the reason of
that
relationship,
the
accused
had
committed murder of Kanchan his wife,
Kama Devi his mother and Dhairya his
son. Ram Gopal Verma aforesaid is
examined as PW-1 who has proved in his
examination in chief the said exhibit ka 1.
The learned trial judge further took into
consideration the inquest proceeding done
at spot of incident wherein PW-1 himself
was a witness. Another circumstance
taken by him into consideration is that all
the three dead bodies were found inside
the house. The FSL report pursuant to the
examination of viscera contents gives the
finding as to the use of poison namely
Aluminum
Phosphate.
The
test
of
material exhibit, the two metallic glasses
and bed sheet stained with vomit also
gave presence of Aluminum Phosphate
over them. The learned trial Judge
considered
all
these
circumstances
cumulatively reached at a conclusion that
all the three victims of the incident died
due to administration of poison and dead
bodies were found inside the residential
house of the accused. He in his statement
shown unawareness about death by
poisoning of his family members and
explained that he was not at his house at
the time of incident. Under Section 106 of
Evidence Act, he had to explain the
reason of his absence from the house at
the relevant day, date and time. But he
failed to prove his absence satisfactorily.
Further his absence from the house after
the death of his three family members in
his house is also material as his 'conduct'
is relevant to the fact in issue under
Section 7 and 8 of the Evidence Act,
1872. In addition to the absence of
accused as a fact relevant to the fact in
issue which he need to satisfactorily
prove, the learned trial judge taken into
consideration the illustration (c) appended
with Section 7 of the Evidence Act, 1872
that the deceased being his close relative
as they were mother, wife and son of the
accused, he would have been well known
with their nature and habit. There was
sufficient
opportunity
for
him
to
administer them poison for committing
their murder. All the above reasons as
stated by learned trial judge were taken as
satisfactory to reach at an inference of
guilt on the part of accused that he
bearing a motive of securing his illicit
relations with another woman, killed his
wife Kanchan, son Dhairya and mother
Kama Devi.

So far as second question for
determination is concerned it relates with
the evidentiary value of testimony of a
hostile witness. The learned trial judge
referred the relevant judgment of Hon'ble
Apex Court. He stated in his finding to
6 All. State of U.P. Vs. Ram Gopal Saini
961
the effect that the hostile witnesses have
proved absence of accused on spot after
incident, the love marriage of accused
with Kanchan (deceased) as well as the
death of Kanchan, Dhairya and Kama
Devi by poisoning, therefore, the fact of
the witnesses turned hostile would not
benefit the accused.

Likely, the third question for
determination as to the appended of
Section 106 Evidence Act, 1872 is
decided by trial judge referring relevant
judgments of Hon'ble Apex Court. It is
held by trial judge that in the present case,
the fact of the death of the victim in the
house of accused is proved by medical
evidence and the testimony of PW-1 and
other prosecution witness that all the three
victim died for the reason of poisoning.
Under the said circumstances, the accused
is
burdened
to
furnish
satisfactory
explanation. But the accused though
stated in his statement recorded under
Section 313 Cr.P.C. as to the fact that he
went to Delhi at the relevant date and
time of incident could not be proved by
solid evidence. As such, the failure to
furnish satisfactory explanation would be
sufficient to draw adverse inference of
guilt against the accused. The conviction
of the accused and sentence of capital
punishment thus rest upon the aforesaid
presumption and inferences drawn by the
Court against him.

4. Rival contentions in appeal

Arguments by learned counsel for
appellant
Sri
Nagendra
Mohan,
Advocate

10. Learned Counsel Sri Nagendra
Mohan, Advocate opened his argument
assailing the judgment on the ground that
in despite of the prosecution remained
unsuccessful in proving it's case against
the accused appellant beyond reasonable
doubts,
the
trial
judge
doing
misinterpretation and misconstruction of
the provision of Sections 7, 8, 9 and 10 of
the Indian Evidence Act, 1872 drawn
adverse inference and presumption of
guilt against the accused.

11. The prosecution had in express
words set a motive on the part of
appellant for the commission of murder of
his mother, wife and son so as to keep
continued
smoothly
his
"illicit
relationship"
with
another
married
woman. The prosecution could not prove
the motive by direct evidence or by
statement of the deceased if any, made
prior to her death to any of her near
relative oral/written or her complaint to
that effect if made to the law enforcement
officers with regard to torture or cruelty
exerted upon her by the appellant in
connection with alleged illicit relationship
.

12. It is argued further that the entire
investigation suffers from several material
irregularity
and defects
the
benefit
whereof could have not been given to the
prosecution. He drew attention towards
material facts in the case that though the
information as to the three dead bodies
lying in the house of appellant has already
been given to the police early in the
morning at 06:45 A.M. on 19.04.2013
with complete identity and introduction of
the victim by Sunil Kumar Mali, the son
of
accused
appellant's
sister,
first
information report was not registered
thereupon. When the Cr.P.C. mandatorily
requires to register F.I.R. on information
disclosing a cognizable offence and does
not preclude from registering FIR under
the circumstance of the instant case, non
962 INDIAN LAW REPORTS ALLAHABAD SERIES
registration of F.I.R. on 19.04.2013
makes a doubt as to the genuineness of
the FIR registered on 06.05.2013 after a
considerable lapse of time of more than
fifteen days. He further drew attention
towards the complainant Ram Gopal
Verma of complaint dated 06.05.2013
upon which the FIR was registered that
when the inquest of the dead bodies were
done from 07:30 A.M. to 09:30 A.M. on
spot of incident on 19.04.2013, Ram
Gopal Verma was present there and he is
one of the signatory as witness of the
inquest proceeding but he did not
complained suspicion as to the death of
the victims. In the context of above,
learned counsel argued that the trial court
ignored as to why the complainant has not
moved the complaint against appellant if
the guilt on the part of accused was
known to him.

13. Learned counsel submitted that
prosecution has not offered to prove it's
case through direct evidences and rests it
solely on the circumstantial evidences. In
the present case where admittedly there
were 4 inmates of the house exclusively
owned and possessed by the appellant
where he used to reside alongwith the
victims of incident dated 19.04.2013 and
in his absence, rest of them were found
dead, then in the given circumstances
there might have been three hypothesis as
to the cause of the occurrence namely 1)
Suicidal death or Suicide, 2) Accidental
death or 3) Homicidal death. The
prosecution was therefore burdened to
prove such sequence of circumstances
which completely exclude the possibility
of two other hypothesis namely of
suicidal or accidental death of the victims
trio. Further, if the prosecution rests on
the hypothesis of homicidal death of the
victims then to arraign therefore the
appellant, the prosecution had strict
burden to prove such sequence of
circumstances which necessarily suggest
the guilt of appellant only and no one
else. In despite of that there is no such
continuous
chain
of
sequences
of
circumstances proved by the prosecution
evidences
which
would
have
been
sufficient to record conviction, learned
trial judge convicted the appellant.

14. Learned counsel argued the
strong possibility of false implication by
the complainant for the reason of his
proved enmity with the appellant. He
drew attention towards the evidence of
admitted fact as to the appellant's love
marriage
with
Kanchan
(deceased)
against the consent and wish of the
complainant.
The
complainant
had
prosecuted the appellant in that regard;
whereas Kanchan (his deceased daughter)
had also filed a writ petition in the High
Court seeking stay and quashing of that
prosecution and protection of life and
liberty against her father, the present
complainant. The death of three members
of the family of the appellant including
the
complainant's
daughter
Kanchan
given him a fresh cause to implicate him
falsely.

15. Learned counsel placed reliance
on the judgment of Hon'ble Apex Court in
Gargi Vs. State of Haryana3 to fortify
his
contention
as
to
defective
investigation where the very approach of
the
investigating
officer
has
been
shrouded in unexplained omission and
irregularities which raises doubt as to the
prosecution case therefore, appellant
would be entitled to benefit of doubt. He
also relied on the above judgment in
support as to the motive of his contention
as to the unproved motive that when the
6 All. State of U.P. Vs. Ram Gopal Saini
963
prosecution was not able to prove the
illicit relation of accused with another
woman and no particular of such illicit
relation was found in evidence on record,
possibility of leveling such imputations
on appellant for any malice can not be
relied upon. He further argued on the
point of circumstantial evidence which in
the context of the crime, essentially
means such facts and surrounding factors
which do point towards contemporary of
charged accused. Learned counsel further
relied
on
State
of
Kerala
Vs.
Anilachandran @ Madhu & ors.4 where
it is held that when the accused take in
defence plea of alibi, but the same is
discarded, does not take away the duty of
prosecution to prove it's case beyond all
reasonable doubt. Learned counsel further
relied on Jose @ Pappachan Vs. Sub
Inspector
of
Police
Koyilandy
&
Another5 on the point of burden over a
person of proving fact especially within
his knowledge under Section 106 of the
Evidence Act, 1872. In the aforesaid
matter, the accused was subjected to
murder trial with allegation, wife was first
strangulated to death by him and then
hanged in his house. Held it is impossible
to cast any burden upon the accused
husband under Section 106 Evidence Act,
1872 in absence of any persuasive
evidence to hold that at the relevant time,
accused was present in his house.

16. The learned counsel assailed the
judgment of conviction and order of
sentence that none of the objections raised
before the trial judge are considered and
conviction is solely based by him upon
presumption
and
adverse
inferences
without considering that the prosecution
even had not discharged it's primary
burden of proving the circumstances
whereupon such presumption could be
raised or adverse enforce could be drawn
against the accused. Therefore, the
impugned judgment of conviction is
liable to be rendered non sustainable and
consequently be set aside and appeal be
allowed with acquittal of the appellant.

5.
Arguments
by
learned
Government
Advocate
Sri
Vimal
Prakash, Advocate.

17. Learned G.A. in the context of
the fact of death of three inmates out of
four in a dwelling house, where the fourth
one (appellant) claims himself not present
there at the relevant date and time of the
occurrence, argued that such deaths might
have been caused either by accident or
suicide and if the first two possibilities
are ruled out then certainly it is homicide.
He contended that the prosecution case is
neither of suicide nor of accident, even
the appellant have not claimed the deaths
of victim accidental or suicidal. He
emphasized that the circumstances proved
by evidences during trial have not set an
alternative theory of suicidal death;
therefore the occurrence rests on theory of
homicidal death caused by the appellant
pursuant to a specific motive.

18. He further contended towards
the proved circumstances.

a) Kanchan (deceased) by virtue
of her love marriage with accused
appellant in 2008 was, since then, in
marital cohabitation with the appellant in
his house (spot of incidence) where his
mother Kama Devi (deceased) also
ordinarily used to reside.

b) During wedlock Kanchan
(deceased) and appellant, she begotten a
male child who was named 'Dhairya'. The
964 INDIAN LAW REPORTS ALLAHABAD SERIES
son was approximately 4 years in age, at
the relevant date and time of incident.

c) No one else was sharing the
dwelling house with accused appellant,
Kanchan (deceased wife), Kama Devi
(deceased mother) and Dhairya (deceased
son).

d) In the intervening night of
18/19 April, 2013, the three inmates of
the house namely Kama Devi, Kanchan
and Dhairya died in the house. The dead
bodies were lying here and there on the
floor of the house in perplexed state.

e) The report of Forensic
Science Laboratory given on examination
of 'Viscera' extracted from the dead
bodies and the metallic glasses, vomits on
bedsheet
etc.
confirmed
the
administration of poison "Aluminum
Phosphate" as cause of death.

Learned G.A. submitted further
that
aforesaid
are
the
proved
circumstances
wherein
the
accused
appellant shall be presumed being fourth
inmate of the house who have been in
position to know very well the habits and
nature of victims as well as to have full
opportunity so as to administer poison to
them to commit their murder.

19. Learned G.A. argued that the
evidence of PW-1 is sufficient to establish
motive, a persuasive factor for the
commission of murder of the victims by
poisoning, that is illicit relationship
between accused appellant and the wife of
Ved Prakash Gupta, continuing since
before the appellant's marriage with
Kanchan (deceased wife).

20. Learned G.A. further argued that
it is the admitted and proved fact that
accused appellant was not present on spot
of incident at the time of inquest
proceeding, which establishes his conduct
subsequent to his committing the offence.
He contended that accused appellant was
present at the postmortem house on the
same day whereas he was alleged to have
gone Delhi since the day before the
occurrence
was
reported
to
police
(19.04.2013). The learned G.A. termed
this conduct on the part of accused
appellant, his 'absconding' from the seen
of offence.

21. The learned G.A. lastly
submitted that no doubt the prosecution
has strict burden of proving it's case
beyond reasonable doubt but when the
prosecution has reasonably discharged it's
duty to the extent the same could be done
by leading evidence to prove the facts and
surrounding circumstances, but for the
facts especially and particularly within
the knowledge of the accused himself
then the burden to speak for such fact lies
heavily upon him. In this context, learned
G.A. argued that the accused appellant
being fourth member of the dwelling
house where he ordinarily used to reside
with the rest of the three inmates
(deceased), had offered a defence to the
incriminating circumstances against him,
explaining his absence from the spot of
incident at relevant time that he went to
Delhi on day before the incident. The
failure to prove the above defence,
learned G.A. argued, will amount the
missing link in the chain of sequence of
circumstances against him. He lastly
submitted that the learned trial judge did
not commit any error in recording
conviction and awarded proper and
adequate sentence accordingly.

22. The learned G.A. concluded his
arguments referring cases decided by the
Apex Court relevant on various legal
6 All. State of U.P. Vs. Ram Gopal Saini
965
aspects and issues likely to arise in a
murder
trial
solely
based
on
circumstantial evidences. A short account
of case law relied on by him would be
relevant to be stated. He relied on Kalu @
Laxminarayan Vs. State of M.P.6 where
a married lady met with her homicidal
death in matrimonial home. The manner
in which she met her homicidal death was
a fact especially and exclusively within
the knowledge of appellant husband of
the deceased. It is held that once
prosecution established a prima facie
case, appellant was obliged to furnish
some explanation under Section 313
Cr.P.C. with regard to the circumstances
under which deceased met an unnatural
death inside the house. His failure to offer
any explanation leaves no doubt for the
conclusion of his being the culprit of the
offence. The decision on the issue with
regard to burden under Section 106,
Evidence
Act,
1872
in
such
circumstances, given by Hon'ble Apex
Court in Trimukh Maroti Kirkan Vs.
State of Maharashtra7 was relied on. It is
held in the above case that there will be a
corresponding burden on the inmates of
the house to give a cogent explanation as
to how the crime was committed. The
decision of Apex Court reported in
Mulakh Raj etc. Vs. Satish Kumar and
others8 was relied on where with regard
to importance of motive in cases based on
circumstantial evidence and effect on
failure to prove the same, it is held, proof
of motive is never an indispensable for
conviction. When facts are clear it is
immaterial that no motive has been
proved. On the issue of non submission of
explanation by the accused with his
statement under Section 313 Cr.P.C. was
being recorded the impact thereof over
the defence of accused. Learned G.A.
relied on Phula Singh Vs. State of
Himachal Pradesh9, where it is held that
if the accused had kept silence over the
incriminating circumstances against him
or remain in complete denial mode, rather
to give any explanation thereto, the Court
would be entitled to draw an inference
against the accused as may be permissible
in accordance with law. Learned G.A.
relied on the decision in Jai Narain and
others Vs. State of Uttar Pradesh10,
where it is held when a witness gave each
and every detail of occurrence in his
examination in chief but thereafter he
turned hostile and stated in favour of
accused, the entire evidence of the such
witness cannot be discarded and doubted
under the given circumstances. Learned
G.A. relied on Vijay Pal Vs. State
(Government of NCT of Delhi11 and
Mukesh and another Vs. State (NCT of
Delhi) & others12 where it is held, law is
well settled that if such a plea of alibi is
taken in defence by the accused, the
burden is upon him to establish the same
by positive evidence, so as to raise a
reasonable
doubt
regarding
the
prosecution version.

23. After giving a careful and
cautious hearing to the rival arguments
raised by learned counsels for the parties
and on perusal of the record, we framed
the
following
questions
for
our
determination;

(I) Whether investigation of the
case is defective?

(II) Whether the charge against
appellant is wrong and illegal for murder
of his mother, wife and son, for the reason
the same is framed without any evidence
on record?

(III) Whether the prosecution
failed to produce the 'best evidence' so as
to prove it's case and without any
966 INDIAN LAW REPORTS ALLAHABAD SERIES
justification has withheld the material
witness, deliberately?

(IV) Whether the trial court mis
read the evidence, even omitted to read
evidence on record, did not appreciate the
evidence on record in right perspective
and passed the impugned judgment which
is not sustainable in the eyes of Law?

24. The case in hand, as noted by us,
rests solely on circumstantial evidence as
there is no direct evidence as to the
commission of the offence by the
appellant. After hearing the learned
counsels and having a careful scrutiny
and perusal of materials and evidences
available on the record of trial court, we
now proceed to discuss the circumstances,
whether proved in such a manner are
exclusively pointing towards the guilt of
the accused and nothing else. Since the
conviction in the present case is not only
based on circumstantial evidence but also
entailed the failure on the part of accused
to discharge his burden to prove fact
especially
within
his
knowledge,
consequent
thereupon
the
adverse
inference is drawn as to his guilt under
Section
106
Evidence
Act,
1872,
therefore we have to see whether Section
106 Evidence Act, 1872 has been
correctly
applied
in
the
fact
and
circumstances of the case.

6. Conspectus of circumstances

25. The conspectus of the events as
noted by us from the evidence and
materials on record of trial court is that
accused
appellant
and
Kanchan
(deceased) entered into love marriage in
the year 2008 against the wish of
complainant Ram Gopal Verma (father of
deceased Kanchan). Since 2008, Kanchan
(deceased) was in marital cohabitation
with accused appellant in his dwelling
house alongwith his mother Kama Devi
(deceased). Out of their wedlock, a son
named 'Dhairya' was begotten.