# MUNNA KUMAR UPADHYAYA @ MUNNA UPADHYAYA v. THE STATE OF ANDHRA PRADESH THROUGH PUBLIC PROSECUTOR, HYDERABAD, ANDHRA PRADESH

- **Citation:** [2012] 6 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 2012-05-08
- **Case number:** Criminal Appeal No. 1316 of 2008
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munna-kumar-upadhyaya-munna-upadhyaya-v-the-state-of-andhra-pradesh-through-28223
- **Pages:** 50

## Headnote

A
B
Penal Code, 1860 - ss.302 rlw 34, 201, 411 and 435 -
Murder - Of Railway Official and three members of his family
C
(wife, son and daughter) inside their residence (bungalow) -
Almirah in deceased's bedroom broken open and cash and
jewellery taken away - Dead bodies transporled out in a car
which was later on doused with petrol and set on fire - Five
accused - A-1 was domestic servant of the Railway Official -
D
A-2 is nephew of A-1 - Trial courl convicted all the accused -
High Courl acquitted A-3 and A-4 but sustalhed the conviction
of A-1, A-2 and A-5 - Only A-2 pursued furlher appeal before
Supreme Courl - Held: To the entire occurrence, there was
no eye-witness but the attendant circumstances were fully
E
established by the prosecution - The forensic experl as well
as the neighbours and the Investigating Officers had seen the
blood stained walls, the floor, having been washed with phenyl
and acid, which was sticky and various incriminating items
seized in presence of the witnesses after confessions of the
F
accused - There was no occasion for so many witnesses to
falsely depose against the accused - Statement of these
witnesses seen in conjunction with the circumstance that on
the incident date, the accused had given different and
conflicting versions to different persons (servants and G
neighbours) at different times, either for not permitting their
entry into the house, or claiming that the family had gone out,
fully supporl the case of the prosecution - Presence of finger
prints of A-2 in the house and parlicularly on the almirah in
611
H
612
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A the bedroom of the deceased, remained unexplained - A/so,
PW-12 (the sole surviving daughter of the Railway Official)
identified gold ornaments recovered from possession of
accused persons as belonging to her deceased mother - With
the help of the prosecution witnesses, the presence of the
B accused in the bungalow, their intention of committing such
heinous crime, the manner in which the accused persons had
destroyed the evidence, i.e., the car, dead bodies and blood
stained cloths of the deceased and the accused themselves,
from where and how they had procured the incriminating
c articles which they used in the crime, like knife, petrol etc. and
finally the conduct of the accused prior to and after
commission of the crime were established by the prosecution
- Recovery of incriminating articles, cash· and jewellery
belonging to the deceased, the finger prints of the accused
0 and the false stories given by the accused to different persons
who came to the bungalow of the deceased on the incident
date, to ensure that none of them enter the house of the
deceased was unequivocally established - Conduct of A-2
also tilts the case in favour of the prosecution - In response
E to a question relating to the injuries that he had suffered, A-2
opted to make a denial - He not only failed to explain his
conduct, in the manner in which every person of normal
prudence would be expected to explain but even gave
incorrect and false answers - Conviction of A-2 (appellant)
accordingly confirmed u/ss.302 rlw 34, 201, 411 and 435 as
F the chain of circumstances undoubtedly point towards his guilt.
Code of Criminal Procedure, 1973 - s.313 - Statement
under - Purpose of - Held: Is to serve a dual purpose, firstly,
to afford to the accused an opportunity to explain his conduct
G and secondly to use denials of established facts as
incriminating evidence against him - If an accused gives
incorrect or false answers during the course of his statement
uls.313 CrPC, the Court can }iraw an adverse inference
against him.
H
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE
613
OF A.P. THR. PUB. PROSECUTOR
Evidence - Information given by injured accused to doctor
A
in regard to circumstances leading to his injuries -
Admissibility of - Held: History given to doctor by injured
accused at the time of treatment would not be strictly an extra
judicial confession, but would

## Text

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[2012] 6 S.C.R. 611
MUNNA KUMAR UPADHYAYA @ MUNNA UPADHYAYA
v.
THE STATE OF ANDHRA PRADESH THROUGH PUBLIC
PROSECUTOR, HYDERABAD, ANDHRA PRADESH
(Criminal Appeal No. 1316 of 2008)
MAY 8, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.)
A
B
Penal Code, 1860 - ss.302 rlw 34, 201, 411 and 435 -
Murder - Of Railway Official and three members of his family
C
(wife, son and daughter) inside their residence (bungalow) -
Almirah in deceased's bedroom broken open and cash and
jewellery taken away - Dead bodies transporled out in a car
which was later on doused with petrol and set on fire - Five
accused - A-1 was domestic servant of the Railway Official -
D
A-2 is nephew of A-1 - Trial courl convicted all the accused -
High Courl acquitted A-3 and A-4 but sustalhed the conviction
of A-1, A-2 and A-5 - Only A-2 pursued furlher appeal before
Supreme Courl - Held: To the entire occurrence, there was
no eye-witness but the attendant circumstances were fully
E
established by the prosecution - The forensic experl as well
as the neighbours and the Investigating Officers had seen the
blood stained walls, the floor, having been washed with phenyl
and acid, which was sticky and various incriminating items
seized in presence of the witnesses after confessions of the
F
accused - There was no occasion for so many witnesses to
falsely depose against the accused - Statement of these
witnesses seen in conjunction with the circumstance that on
the incident date, the accused had given different and
conflicting versions to different persons (servants and G
neighbours) at different times, either for not permitting their
entry into the house, or claiming that the family had gone out,
fully supporl the case of the prosecution - Presence of finger
prints of A-2 in the house and parlicularly on the almirah in
611
H
612
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A the bedroom of the deceased, remained unexplained - A/so,
PW-12 (the sole surviving daughter of the Railway Official)
identified gold ornaments recovered from possession of
accused persons as belonging to her deceased mother - With
the help of the prosecution witnesses, the presence of the
B accused in the bungalow, their intention of committing such
heinous crime, the manner in which the accused persons had
destroyed the evidence, i.e., the car, dead bodies and blood
stained cloths of the deceased and the accused themselves,
from where and how they had procured the incriminating
c articles which they used in the crime, like knife, petrol etc. and
finally the conduct of the accused prior to and after
commission of the crime were established by the prosecution
- Recovery of incriminating articles, cash· and jewellery
belonging to the deceased, the finger prints of the accused
0 and the false stories given by the accused to different persons
who came to the bungalow of the deceased on the incident
date, to ensure that none of them enter the house of the
deceased was unequivocally established - Conduct of A-2
also tilts the case in favour of the prosecution - In response
E to a question relating to the injuries that he had suffered, A-2
opted to make a denial - He not only failed to explain his
conduct, in the manner in which every person of normal
prudence would be expected to explain but even gave
incorrect and false answers - Conviction of A-2 (appellant)
accordingly confirmed u/ss.302 rlw 34, 201, 411 and 435 as
F the chain of circumstances undoubtedly point towards his guilt.
Code of Criminal Procedure, 1973 - s.313 - Statement
under - Purpose of - Held: Is to serve a dual purpose, firstly,
to afford to the accused an opportunity to explain his conduct
G and secondly to use denials of established facts as
incriminating evidence against him - If an accused gives
incorrect or false answers during the course of his statement
uls.313 CrPC, the Court can }iraw an adverse inference
against him.
H
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE
613
OF A.P. THR. PUB. PROSECUTOR
Evidence - Information given by injured accused to doctor
A
in regard to circumstances leading to his injuries -
Admissibility of - Held: History given to doctor by injured
accused at the time of treatment would not be strictly an extra
judicial confession, but would be a relevant piece of evidence.
Evidence - Test identification parade - Delay in holding
identification parade - Effect - Plea of accused that the test
identification parade was held after considerable unexplained
delay, that too, when the photographs of the accused had
been published in the newspapers and thus, the courts could
not have relied upon such identification parade in returning
C
a finding of guilt against the accused - Held: Delay per se
cannot be fatal to the validity of holding an identification
parade, in all cases, without exception - In the instant case,
nothing on record to say that the photographs of the accused
were actually printed in the newspaper - Even if that be so,
they were printed months prior to the identification parade and
would have lost their effect on the minds of the witnesses who
were called upon to identify an accused - It cannot be said
that merely because of delay, the Court should have rejected
B
D
the entire evidence of identification of the accused.
Evidence - Circumstantial evidence - Appreciation of -
Held: A case of circumstantial evidence is primarily
dependent upon the prosecution story being established by
cogent, reliable and admissible evidence -
Each
circumstance must be proved like any other fact which will,
upon their composite reading, completely demonstrate how
and by whom the offence had been committed.
E
F
Evidence - Confession - Extra-judicial confession -
Admissibility and evidentiary value of - Held: Extra-judicial
G
confession must be established to be true and made
voluntarily and in a fit state of mind - The words of the
witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime - The
H
614
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A extra-judicial confession can be accepted and can be the
basis of conviction, if it passes the test of credibility - Extrajudicial confession should inspire confidence and the court
should find out whether there are other cogent circumstances
on record to support it.
B
'B', a Railway official, was living in a bungalow - the
official residence allotted to him, along with his family
members. A-1 was a domestic servant of 'B' and living
in the servant quarters. He allegedly had a serious
grudge against the wife of 'B' and therefore hatched a
C plan with his nephew, A2, and two others A-3 and A-4 to
kill the entire family of 'B'.
The case of the prosecution was that on the incident
date, after 'B' ha~ left for his office in the morning, A-1
D allowed the entry of A-2, A-3 and A-4 into the bungalow,
and thereafter the four accused, armed with knives and
a pistol, killed B's son, wife ['P'], and daughter, one by
one and thereafter also broke open the almirah in the
bedroom and took out cash and jewellery; that in the
E process of killing 'P', A-3 himself got injured whereafter
A-1, A-2 and A-4 got him admitted to a hospital and
returned to the bungalow and later in the evening they
I
killed 'B' when he came back from office and that
subsequently, on instructions of A-1, his sister A-5
F cleaned the bungalow flpor with phenyl and acid. It was
alleged that' thereafter the accused persons dumped the
dead bodies along with blood stained clothes into a car
which was transported out of the premises by A-1 and
A-2 and parked near the railway track whereupon A-2
G purchased petrol from petrol pump and then he and A-1
set the car along with the dead bodies on fire.
H
The trial Court convicted all the five accused- A-1 ul
s 302, 201, 435 and 411 IPC and Section 25(1)(a) and 27(1)
of the Arms Act; A-2 u/s. 302 r/w s.34, 201, 435 and 411
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 615
OF AP. THR. PUB. PROSECUTOR
IPC; A-3 u/s. 302 r/w s.34 and 411 IPC and Section 25(1)(a) A
and 27 of the Arms Act; A-4 u/s.302 r/w s.34 and 201 and
411 IPC and A-5 u/s.201 and 411 IPC. While A-1 was
sentenced to death, A-2 to A-4 were sentenced to life
imprisonment and A-5 was sentenced to 3 years R.I. The
High cburt acquitted A-3 and A-4 but sustained the B
conviction of A-1, A-2 and A-5. The death sentence
awarded to A-1 was however committed to life
imprisonment by the High Court. A-5 did not prefer any
appeal before this Court. The State also did not prefer any
appeal before this Court against the acquittal of A-3 and c
A-4. A-1 had filed an appeal challenging the judgment of
the High Court, but the same was dismissed at the SLP
stage itself, as being withdrawn.
Only A-2 (appellant) pursued further appeal before
this Court. He challenged his conviction on various D
grounds, viz.: a) that the case being one of circumstantial
evidence, the entire evidence was of very weak nature
and the prosecution had not been able to establish the
chain of circumstances undoubtedly pointing only
towards his guilt; b) that the High Court had entirely E
based its order of conviction on the finger prints found
at the place of occurrence but there was no evidence as
to how the finger prints of the accused persons were
collected by the Police and how they were dispatched to
the forensic laboratory for purposes of comparison; the
F
vital link in the evidence relating to finger prints was
missing and as such, the judgment of the High Court was
liable to be set aside; c) that the test identification parade,
firstly, was not held in accordance with law and secondly,
it was held after considerable unexplained delay, that too, G
when the photographs of the accused had been
published in the newspapers and thus, the courts could
not have relied upon the identification parade in returning
a finding of guilt against the accused and d) lastly, that
H
616
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
the acquittal of A-3 and A-4 by the High Court on merits
was clear indication that the prosecution had failed to
prove its case beyond reasonable doubt and thus, the
High Court ought to have acquitted the appellant as well.
B
Dismissing the appeal, the Court
HELD: 1. The present case is one of circumstantial
evidence and there is no witness to the commission of
crime. Thus, there is a definite requirement of law that a
heavy onus upon the prosecution be discharged to prove
C the complete chain of events and circumstances which
will establish the offence and would undoubtedly only
point towards the guilt of the accused. To prove this chain
of events, prosecution had examined as many as 49
witnesses. This included the persons who were working
D at the bungalow, neighbours, the worker at the petrol
pump from which Accused no.2 purchased petrol, the
doctors, forensic experts, fingerprint expert and the only
surviving member of the family i.e., the other daughter of
'B', PW12. This ocular evidence is in addition to the
E documentary and expert evidence brought by the
prosecution on record. A case of circumstantial evidence
is primarily dependent upon the prosecution story being
established by cogent, reliable and admissible evidence.
Each circumstance must be proved like any other fact
F which will, upon their composite reading, completely
demonstrate how and by whom the offence had been
committed. [Para 10] [635-A]
G
Sana tan Naskar and Anr. v. State of West Bengal (2010)
8 sec 249 - referred to.
2.1. The identity of all the deceased and the fact that
they were residents of the bungalow in question, that
accused Nos. 1 and 5 were living in the premises and that
accused No. 2 was nephew of accused No. 1 have been
H fully established on record by the statements of PW-3 to
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE
617
OF AP. THR. PUB. PROSECUTOR
PW-8 and PW-12, the daughter of 'B'. In fact, there can
A
be no doubt as to the fact that the accused No. 1 was
working as domestic servant of 'B' and living in the
servaht quarters. The reason for commission of crime, as
per the case of the prosecution, was the persistent
grudge of accused No. 1 towards 'P'. All the accused
B
planned and then killed all the four members of the
family, one by one. They committed the crime in a most
brutal manner by cutting the throat of each one of the
deceased. Of course, in the process, when accused No.
3 wanted to shoot 'P' in the scuffle, he suffered the gun c
injury and later they killed 'P' by causing a knife injury at
her throat. [Paras 11, 13 and 14) [638-C-D, H; 639-A-C]
2.2. To the entire occurrence, there is no eye-witness
but the attendant circumstances have fully been
established by the prosecution. The forensic expert as
D
well as the neighbours and the Investigating Officers had
seen the blood stained walls, the floor, having been
washed with phenyl and acid, which was sticky and
various incriminating items seized in the presence of the
witnesses after confessions of the accused. [Para 15]
E
[639-C-D]
2.3. Furthermore, PW-8, the watchman, clearly stated
that when he had come to the bungalow, it was accused
No. 1 who did not permit him to go inside the house and
asked him to wait outside at the main gate and then, had
even sent him to get the sweets from the market, which
F
he brought and gave to accused No.5. Similarly the
carpenter, PW-23, who had come to repair the wooden
bedsteads was again not allowed admission into the
house and was sent away to work outside, on the pretext G
that 'P' was not feeling well and did not want to be
disturbed. PW-3, a neighbour, identified accused No.1,
accused No.2 and accused No.5 as he had seen them in
the bungalow on various occasions. PW-4 also stated
that she was working as a maid servant for sweeping and
H
618
SUPREME COURT REPORTS
[2012) 6 S.C.R.
A mopping the floor of the bungalow and on the fateful day,
was not permitted by accused No.1 to do her routine job.
She found that the rear door from where she used to enter
the house normally had been closed from inside and after
she called for the accused, he asked her to go away
B because 'P' was not feeling well. On similar lines were the
statements of PW5 and PW6. The statement of PW-6, in
fact, completely brings out the involvement of accused
No. 1 in the commission of the crime. [Para 16) [639-E-H;
640-A-B]
c
2.4. Besides all this is the statement of PW-12, the
sole surviving member of the victim family, which has fully
corroborated the statement of all these witnesses, as well
as that of neighbour PW3. She was travelling from Delhi
to Secunderabad by train. A number of times, she claims
D to have called up the numbers of her father and other
family members, but none responded. Upon this, she had
rang up PW-3 to find out what had happened. It was only
on her arrival at Secunderabad that she came to know
about the unfortunate event where her entire family had
E been murdered by the accused. Accused had
disappeared from the premises in question. Prior thereto,
he had even told the neighbour, who made enquiry in
furtherance to the phone calls by PW-12,that 'B' and the
family had gone out in the car on the evening of 17th
F March, 2003, but had never returned back. There is no
occasion for so many witnesses to depose falsely
implicating the accused in the commission of crime. The
statement of these witnesses seen in conjunction with the
circumstance that the accused had given different and
G conflicting versions to different persons (servants and
neighbours) at different times, either for not permitting
their entry into the house, or claiming that the family had
gone out on 17th March, 2003, fully support the case of
the prosecution. [Para 17) [640-F-H; 641-A-C)
H
2.5. PW 25 is again a very material witness, who has
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 619
OF AP. THR. PUB. PROSECUTOR
proved the involvement of accused. No. 2 in the A
commission of the crime. According to this witness, he
was working as a helper in the University Filling Station
petrol pump. He knew only accused No.2. On the evening
of 17/18th March, 2003, at about 12.30 - 1.00 a.m. accused
No. 2 had come to the petrol pump and asked for 10 litres B
of petrol. Accused No. 2 was carrying a plastic container
for that purpose. Upon enquiry from this witness, he told
this witness that he needed the petrol because his family
was travelling in a car and the petrol in the car had
finished and on this pretext, he purchased 10 litres of c
petrol. This witness duly identified MO 74, the plastic
cane in which he had given petrol to the accused. This
petrol, according to the prosecution, had been used in
burning the car as well as the dead bodies of the
deceased persons. PW36, the forensic expert collected 0
various items from the scene of the car. From the burnt
clothes, he reported that they bore traces of flammable
material. Smell of petrol was also present at the scene
and this fact stood confirmed by the statement of PW48,
the Investigating Officer. Thus, it is clear that accused No. E
2 had taken the petrol from the petrol pump and· used it,
along with other accused, for the purpose of putting the
car and the dead bodies of the deceased persons on fire.
[Para 18] [641-D-H; 642-A-B]
2.6. PW45, another forensic expert, had found human
F
blood in the rooms where the crime was committed and
also on the items which were sent to him for his opinion.
The presence of human blood on these items, including
the clot.hes which were sent for serological examination,
cleari'y indicates that in that house, murder of some G
human beings had been committed. Identities oj those
human beings stands completely established not only by
expert evidence but by the evidence of the neighb9.urs
also. [Para 19] [642-B-D]
H
620
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
2. 7. The ballistics expert PW-37 expressed his
opinion that the cartridges recovered had been fired from
the recovered pistol. The cartridges were recovered from
the bungalow while the pistol and live cartridge was
recovered in furtherance to the confessional statements
B
made by accused Nos.2 and 3. [Para 20) [642-D-E]
2.8. PW-38, the finger print expert had visited the site
and lifted some chance finger prints on the steel almirahs
from near the inner lock door and another set of finger
C prints from the rear side of the bathroom. He clearly stated
that the chance finger prints matched with the finger
prints of accused Nos.1 and 2. The attempt on behalf of
the accused to object to the evidence of the finger prints
on the ground that the investigating officer has not told
in his examination-in-chief that he had taken the finger
D prints of the accused and sent them to the expert does
not carry much weight in view of the documentary, ocular
and expert evidence. It was expected of the Investigating
Officer to make a statement in that behalf, but absence of
such statement would not weigh so much against the
E
prosecution that the court should be persuaded to reject
the evidence of PW38 along with the clinching evidence
of Ext. P-52, P-72 and P-73 respectively.· Equally without
merit is the submission on behalf of the appellant that the
finger print could be there upon the almirah in the normal
F
course of business, as accused No. 1 was the domestic
servant working in the bungalow. What is important is
that the presence of finger prints of accused No. 2 found
in the house and particularly on the almirah in the
bedroom of the deceased, remain unexplained and
G secondly, no attempt was made by any of the accused
persons to take a stand to explain their conduct. Further,
lifting of chance finger prints and on comparison being
found to be matching with the sample finger prints of the
accused, taken by the Police, is not the only piece of
H evidence. There is corroborating evidence of the
MUNNA KUMAR UPADHYAYA@MUNNA UPADHYAYA v. STATE 621
OF AP. THR. PUB. PROSECUTOR
prosecution witnesses on the one hand, and on the other, A
evidence of PW-12, who identified the gold ornaments,
which were stolen by the accused from the almirah, as
belonging to her deceased mother ('P') and which were
recovered from the possession of accused persons. The
prosecution has by other evidence, clearly been able to s
establish the physical contact between the accused and
the articles within the almirah, and therefore, the almirah
door also. [Paras 22, 23, 24, 26, 28] [642-H; 643-A-D, G-H;
644-A-C, F-H; 645-F-G]
Chandran @ Surendran and Anr. v. State of Kera/a 1991
C
Supp. (1) SCC 39 - distinguished.
B.A. Umesh v. Registrar General, High Court of
Karnataka (2011) 3 sec 85: 2011 (2) SCR 367 - relied on.
3. As far as the deceased persons are concerned,
because of the burnt condition of bodies, there could be
no other evidence of cause of death except identification
D
of the deceased persons which has already been
established by the prosecuti.on. The accused persons, E
particularly, accused Nos. 1, 2 and 3 suffered physical
injury. Accused No.3 even suffered bullet injury which
has been proved on record by the statement of PW-46,
as also PW-33 and PW-43, all doctors. PW-18, who was
running a clinic stated that he knew the accused and on
17th March, 2003, the accused persons had come to his
F
residence and informed him that accused No.3 had
suffered injury on account of a fall due to drunken state.
After examining accused No.3, he found two bullet gun
shots on the left leg of accused No.3, who was also in
intoxicated condition. They were sent to hospital for G
treatment and they paid money for treatment Thereafter,
leaving Accused No. 3 in the hospital, the rest of the
accused went missing. These are the circumstances
which connect the accused persons with the crime. [Para
29] [645-G-H; 646-A-D]
H
622
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
4.1. The High Court declined to. rely upon any of the
extra judicial confessions made by the accused persons
to various other persons.The High Court was right in not
relying upon such confessions, but it ought to have
rejected only the part inadmissible in accordance with the
B provisions of Section 27 of the Indian Evidence Act, 1872.
The statements in so far as they concern, the use of
various articles in commission of crime and recovery of
such articles and stolen items, would form a valid and
admissible piece of evidence for the consideration of the
c court. The history given to the doctor at the time of
treatment would not be strictly an extra judicial
confession, but would be a relevant piece of evidence,
as these documents had been prepared by PW33 (the
doctor who had treated the accused for their injuries) in
0
the normal course of her business. Even the accused do
not dispute that they were given treatment by the doctor
in relation to these injuries. Thus, it was for the accused
to explain this aspect. [Paras 30, 33, 34) [646-D; 647-A-D]
4.2. Extra-judicial confession must be established to
E
be true and made volunta"rily ·and in a fit state of mind.
The words of the witnesses must be clear, unambiguous
and should clearly convey that the accused is the
perpetrator of the crime. The extra-judicial confession can
be accepted and can be the basis of conviction, if it
F
passes the test of credibility. The extra-judicial confession
should ,inspire confidence and the court should find out
whether there are other cogent circumstances on record
to support it. [Para 42) (650-B-C]
G
Ba/winder Singh v. State of Punjab 1995 Supp. (4) SCC
259: 1995 (5) Suppl. SCR 10; Pakkirisamy v. State of TN.
(1997) 8 SCC 158; Kavita v. State.of TN. (1998) 6 SCC 108:
1998 (3) SCR 902; State of Rajasthan v. Raja Ram (2003) 8
SCC 180: 2003 (2) Suppl. SCR 445; Aloke Nath Dutta v.
H State of WB. (2007) 12 SCC 230: 2006 (10) Suppl. SCR
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE
623
OF AP. THR. PUB. PROSECUTOR
662; Sansar Chand v. State of Rajasthan (2010) 10 SCC
A
604: 2010 (12) SCR 583; Rameshbhai Chandubhai Rathod
v. State of Gujarafl2009) 5 SCC 740; Sk. Yusuf v. State of
WB. (2011) 11 SCC 754: 2011 (8) SCR 83 and Pancho v.
State of Haryana (2011) 10 SCC 165: 2011 (12) SCR 1173
- referred to.
B
5. In the instant case, there was some delay in
holding the identification parade. But the delay per se
cannofbe fatal to the validity of holding an identification
parade, in all cases, without exception. The purpose of C
the identification/parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the appellant, iri the
holding of the identification parade. The identification
parade was held in accordance with law and the
witnesses had identified the accused from amongst a
D
number of persons who had joined the identification
parade. There is nothing on record to say that the
photographs of the accused were actually printed in the
newspaper. Even if that be so, they were printed months
prior to the identification parade and would have lost their
E
effect on the minds of the witnesses who were called
upon to identify an accused. However, it is always
appropriate for the investigating agency to hold
identification parade at the earliest, in accordance with
law, so that the accused does not face prejudice on that
F
count. In the facts and circumstances of the present case,
it cannot be said that merely because of delay, the Court
should reject the ·entire evidence of identification of the
accused. More so, the accused persons were duly
identified by these very witnesses in the open court, while
G
they were deposing. [Paras 45, 46 and 47] [651-A-E; 656DJ
Rajesh Govind Jagesha v. State of Maharashtra (1999)
8 SCC 428: 1999 (4) Suppl. SCR 277 - distinguished.
H
624
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103 - referred to.
6. It is clear that the prosecution had been able to
comprehensively and reliably establish the chain of
8
circumstances. The evidence produced on record does
not leave any major loopholes in the case of the
prosecution. With the help of the prosecution witnesses,
the presence of the accused in the bungalow, their
intention of committing such heinous crime, the manner
in which the accused persons had destroyed the
C evidence, i.e., the car, dead bodies and blood stained
cloths of the deceased and the accused themselves, from
where and how they had procured the incriminating
articles which they used in the crime, like knife, petrol etc.
and finally the conduct of the accused prior to and after
D commission of the crime have been established by the
prosecution. Most importantly, the recovery of
incriminating articles, cash and jewellery belonging to the
deceased, the finger prints of the accused and the false
stories given by the accused to different persons who
E came to the bungalow of the deceased during 17th/18th
March, 2003, to ensure that none of them enter the house
of the deceased stand unequivocally established. [Paras
48, 49] [656-E-H; 657-A]
F
7. Besides all this circumstantial evidence, another
very significant aspect of the case is that none of the
accused, particularly accused No.2, offered any
explanation during the recording of their statements
under Section 313 CrPC. It is not even disputed that the
G material incriminating evidence was put to accused No.2
while his statement under Section 313 CrPC was
recorded. Except for a vague denial, he stated nothing
more. In fact, even in response to a question relating to
the injuries that he had suffered, he opted to make a
denial, which fact had duly been established by the
H
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE 625
OF A.P. THR. PUB. PROSECUTOR
statements of the investigating officers, doctors and even
A
the witnesses who had seen him immediately after the
crime. It is a settled law that the statement under Section
313 CrPC is to serve a dual purpose, firstly, to afford to
the accused an opportunity to explain his conduct and
secondly to use denials of established facts as B
incriminating evidence against him. It was expected of the
accused to render proper explanation for his injuries and
his conduct. However, he opted to deny the same and in
fact even gave false replies to the questions posed to him.
If the accused gave incorrect or false answers during the c
course of his statement under Section 313 CrPC, the
Court can draw an adverse inference against him. In the
instant case, the accused-appellant (A-2) has not only
failed to explain his conduct, in the manner in which
every person of normal prudence would be expected to 0
explain but had even given incorrect and false answers.
The Court not only draws an adverse inference, but such
conduct of the accused would also tilt the case in favour
of the prosecution. [Paras 49, 50, 51, 52] [657-A-D; 660A-D]
Asraf Ali v. State of Assam (2008) 16 SCC 328: 2008
(10) SCR 1115 and Ma nu Sao v. State of Bihar (2010) 12
sec 310: 2010 (8) SCR 811 - relied on.
Case Law Reference:
c201 O) 8 sec 249
referred to
Para 10
1991 Supp. (1) sec 39
distinguished
Para 25
2011 (2) SCR 367
relied on
Para 27
1995 (5) Suppl. SCR 10 referred to
Para 35
(1997) 8 sec 158
referred to
Para 36
1998 (3) SCR 902
referred to
Para 37
E
F
G
H
626
SUPREME COURT REPORTS
(2012] 6 S.C.R.
A
2003 (2) Suppl. SCR 445
referred to
Para 38
2006 (10) Suppl. SCR 662 referred to
Para 39
2010 (12) SCR 583
referred to
Para 40
B
(2009) s sec 140
referred to
Para 41
2011 (8) SCR 83
referred to
Para 42
2011 (12) SCR 1173
referred to
Para 42
1999 (4) Suppl. SCR 277
distinguished Para 44
c
2010 (4) SCR 103
referred to
Para 46
2008 (10) SCR 1115
relied on
Para 49
2010 (8) SCR 811
relied on
Para 49
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1316 of 2008.
From the Judgment & Order dated 28.03.2007 of the High
Court of Judicature, Andhra Pradesh at Hyderabad in Criminal
E
Appeal No. 212 of 2007.
A.T.M. Ranga Ramanujam, Gouri Karuna Das Mohanti,
Deepak Agnihotri, Prakhar Sharma, Anu Gupta for the
Appellant.
F
D. Mahesh Babu, Mayur R. Shah, Shishir Pinaki for the
Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
G directed against the judgment of the High Court of Judicature,
Andhra Pradesh at Hyderabad dated 28th March, 2007,
confirming the judgment of conviction and order of sentence
passed by the learned Third Additional Sessions Judge, Ranga
Reddy District at LB. Nagar on 22nd January, 2007.
H
MUNNAKUMAR UPADHYAYA@MUNNA UPADHYAYA v. STATE 627
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
Facts in Brief
A
2. One Shri Baldevraj Seth was working as Chief Track
Engineer, South Central Railway. He was living in Bungalow
No.100, Railways Officer's Colony, South Lalaguda of
Secunderabad, the official residence allotted to him along with
B
his family members, i.e., his wife, Prabha Seth, son, Master
Rishab Seth and daughter Kanika Seth. Accused Chandra
Bhushan Upadhyay (Accused No.1) was working as office peon
in South Central Railways, Secunderabad and was attached to
the bungalow of Shri Baldevraj Seth for the last 7 years.
Accused No.1 was married in the year 1997 and was residing C
in the servant quarters of the said bungalow. In fact, he had been
given two servant quarters. Accused No.1 was arrogant,
evasive and in the habit of revolting against Smt. Prabha Seth
who was a strict person and demanded better performance of
duties by accused No.1. The wife of accused No.1, on the D
occasion of dussehra festival, went to her native place in Bihar,
to which all the accused belong. After her departure, accused
No.1 became more arrogant. Nearly a week before the
occurrence, Smt. Prabha Seth had scolded accused No.1 for
his shabby looks and had asked him to have a haircut. This E
aggravated the g.rudge of accused No.1 towards her. On the
very next day, accused No.1 met his elder brother's son, Munna
Kumar Upadhyay (Accused No.2), his brother-in-law,
Maheshwar Upadhyay (Accused No.4) and their friend, Monu
Singh (Accused No.3). As already noticed, all of them belong
F
to the same village in the State of Bihar. Accused No.3 was
working in Bharat Steels. Because of the serious grudge of
accused No.1 towards Smt. Prabha Seth, they all planned to
kilt the entire family of Shri Baldevraj Seth and to decamp with
the gold ornaments, etc.
G
3. In furtherance to their plan, accused No.1 is stated to
have purchased two knives from a road side hawker in the
market. He also told Accused Nos.2 to 4 to come to the
bungalow in the morning of the next Monday to execute their H
628
SUPREME COURT REPORTS
[2012] 6 S.C.R.
A
plan. On 17th March, 2003, at about 9.30 a,m., Baidevraj Seth
left for his office. At about 10 a.m., accused No.2 to 4 came to
the entrance of the bungalow, not permitting their entry from the
main gate, accused No.1 took them to the bathroom in the back
varandah and closed the door. Accused No.1 closed all the
B
doors from inside. He did not permit the washerwoman to come
inside the house and gave her clothes from outside. When the
maid servants who used to come to the house everyday to
clean the house, came at their respective times, they were sent
back by accused No.1 on the pretext that Smt. Prabha Seth
c wanted the house to be cleaned with acid and phenyl and
therefore, they should come on another day. A carpenter,
Janagama Maheshwar, PW23 had also come to the premises
for fixing some poster beds. However, accused No.1 did not
permit him to come into the house and when the carpenter
0
insisted on completing the work, accused No.1 told him that
Smt. Prabha Seth was not well and does not want to be
disturbed. At about 10.30 a.m., Smt. Prabha Seth went into the
bathroom. ACCUSED N0.1 went to the room of Master
Rishab, who was watching the television, and on the pretext of
showing him something, called him to another bathroom. When
E
Rishab reached the bathroom, accused Nos.2 to 4 held the boy
while accused No.1 cut his throat, as a result of which he died
instantaneously. His body was kept in the bathroom itself.
Thereafter when Smt. Prabha Seth came out of the bathroom,
accused No.1 immediately attacked her and accused No.3,
F
Monu Singh, opened fire on her with a countrymade pistol.
When she was trying to get free from the grip of accused No.1,
there was a scuffle and because of the resultant misfire,
accused No.3 himself received injury on his leg. Then, accused
No.1, with the knife, succeeded in cutting the throat of Smt.
G Prabha Seth. Thereafter, the accused shifted her body also to
the bathroom. Accused No.1 cleaned the blood stains from the
room and watched for Kanika Seth, daughter of Baldevraj Seth,
to arrive. She arrived at 11.45 a.m. from the school. When she
pressed the call button, accused No.1 directed her to enter from
H the back door. The moment she stepped in, accused Nos.2 and
MUN NA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 629
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
4 held her and accused No.1 cut her throat with a knife, as a A
result of which she collapsed. Her body was then shifted to the
bathroom. After killing these three members of the family, they
ran towards the bedroom, opened the almirah, took gold
ornaments like necklace, chains, rings, wrist watch and net cash
of Rs.44,560/-, which they distributed among themselves.
4. Accused No.3, Monu Singh was bleeding as a result of
the bullet injury that he suffered. The other accused took him to
the premises of Bharat Steel, where he was working as a
security guard. There, one Shashidhar Pandey advised them
B
to take accused No.3 to a doctor. The doctor, after observing C
the injury of accused No.3, asked them to shift the patient to
Gandhi Hospital, Secunderabad. In fact, the doctor helped them
to get admitted and receive the treatment. accused No.1 gave
Rs.2,000/- to the said doctor for medical expenses and after
giving that money, accused Nos.1, 2 and 4 left the place. D
Accuse No.1 sent away Pandu, the watchman, who had come
to the residence of Baldevraj Seth, on the pretext of securing
sweets. At about 6.50 p.m., Baldevraj Seth, returned from his
office to his bungalow. He noticed that the lights of the bungalow
were off. As a routine, the driver used to bring the briefcase of E
Baldevraj Seth inside the bungalow, but on that day, he was
prevented from doing so by Accused No.1, who brought the
briefcase inside himself. Baldevraj Seth, entered the house and
immediately thereafter, accused fired at him and killed him.
After killing him, he shifted his body also into the bathroom and F
cleaned the floor of the hall with phenyl and acid. He called Smt.
Anju, accused No.5, who is his sister and was residing with him,
to clean the floor, whereafter accused No.1 went away to
Mahindra Hills to meet his brother in law. Thereafter, accused
Nos.1, 2 and 4 returned to the bungalow and found that Pandu, G
the watchman was sleeping in the guardroom at the main gate.
The accused waited there and at about 11 p.m. and then they
took the car from the garage, shifted the dead bodies to the
car putting the body of Baldevraj Seth in the dickey of the car.
Accuse No!).1 and 2 took the car near the railway garage. They H
630
SUPREME COURT REPORTS
[2012] 6 S.C.R.
-
A
also dumped their blood stained clothes, as well as those of
the deceased, in the car. After taking the car near the railway
tracks at SP Nagar, Malkajgiri, and parking there, accused
Nos.1 and 2 came back to Tarnaka to buy petrol. Accused No.2
purchased ten litres of petrol at Osmania University filling
B
station, Tarnaka. They brought the petrol to the place where the
accused had parked the car, put the petrol on the car and burnt
the dead bodies with the car.
5. Thereafter, accused No.1 returned to the bungalow.
Upon returning, in the next morning at 6 a.m., the accused
C
informed the neighbour, one Sanjay Kumar Mishra (PW3) and
others that Baldevraj Seth ~ad gone with his family for dinner
outside, on 17th March, 2003 at about 7.30 p.m. and did not
return again. On 18th March, 2003 at about 6.45 a.mi, ~unicipal
Counsellor, PW-1 made a report in Malkajgiri Police Station
D stating that he had come to know that a car was in flames at
SP Nagar Road, Malkajgiri, near Railway water tank. The
Maruti car was completely burnt and some dead bodies were
found in the car, so PW-1 requested the police to take
necessary action. Upon this, Sub-Inspector of Police, Malkajgiri,
E
PVv-47 registered a case under Sections 302, 201 IPC noted
the engine No. and chassis No. of the vehicle and thereby
traced the owner. The dog squad was also put into service. In
the meanwhile, the Chief Engineer along with other senior
officers visited the spot and informed the police that one Meenal
F
Seth, PW-12, the other daughter of Baldevraj Seth, was on the
way from Delhi to Hyderabad in Rajdhani Express and had
telephoned them stating that she was calling the phone numbers
of the family members, but no one was responding. Thus, he
had sent his peon to the house of Baldevraj Seth. However,
G accused No.1 had given him the same excuse that he had
given to the neighbours that the family had gone out. In the
morning, he had been told that the family had not returned. The
dead bodies, on the basis of the articles recovered from the
car itself, were identified. After establishing the identity of the
•
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 631
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
deceased, the investigating officer prepared the inquest report
A
and started the investigation.
6. During the tourse of investigation, the investigating
officer recorded the statements of different witnesses. From the
very initial stages, accused No.1 appears to have been the
8
prime suspect. It was for this reason that Pandu, PW8 had
informed the investigating officer that he was not permitted to
enter the bungalow and the accused had insisted that he
remain at the front gate and he was then sent to buy sweets,
which he gave to Accused No.5 on his return.