# RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR PRADESH

- **Citation:** [2022] 5 S.C.R. 162
- **Court:** Supreme Court of India
- **Decided:** 2022-10-13
- **Case number:** Criminal Appeal Nos. 64-65 of 2022
- **Bench:** Uday Umesh Lalit, S. Ravindra Bhat, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramanand-nandlal-bharti-v-state-of-uttar-pradesh-36393
- **Pages:** 70

## Headnote

Penal Code, 1860: s.302 - Prosecution case was that on
fateful day, appellant-accused murdered his wife and four children
with a sharp cutting weapon while they were sleeping - Motive
behind the murder was attributed to extra marital affair of appellant
with one married lady which was highly opposed by the deceasedwife - Discovery statement made by appellant and consequently
recovery made - Appellant said to have made extra judicial
confession to prosecution witness - Trial court convicted the
appellant and passed death sentence - High Court confirmed the
death sentence - Hence instant appeal - Held: Present case is based
on circumstantial evidence - Mere discovery is insufficient to infer
the authorship of concealment by the person who discovered the
weapon - The exact words of the accused person while making
discovery statement was not deposed by prosecution witness -
Further, the contents of panchnama were not proved - Credibility
of police witness (PW-6 and PW-7) was doubtful and evidence of
discovery was held to be unreliable - Credibility of extra judicial
confession was also doubted in view of oral evidence of prosecution
witness - As circumstance relating to extra judicial confession and
discovery of weapon of offence were not established, the chain of
circumstantial evidence was not established fully and thus other
circumstance such as motive or the evidence of false explanation
offered by the appellant as an additional link in chain of evidence
were not considered - Further, the explanation offered by the
accused for injuries on his body could be said to be compatible
with the defense story - Prosecution failed to establish the case
beyond reasonable doubt and therefore the conviction is set aside.
Evidence Act, 1872: s.8 - Relevance of Motive - Circumstantial
Evidence - There cannot be straight jacket formula for appreciation
[2022] 5 S.C.R. 162
162
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of circumstantial evidence - Circumstances suggesting guilt must
be cogently and firmly established - The same must be of definite
tendency and conclusive in nature - The circumstances should form
the chain which conclusively points towards the guilt of accused in
all human probability - Circumstantial evidence must be complete
and should be devoid of any hypothesis giving room for accused's
innocence but must support only one hypothesis i.e. his guilt - Motive,
though not as such an element of crime, but it assumes greater
importance in cases resting on circumstantial evidence - Absence
of motive could be a missing link of incriminating circumstances,
but once the prosecution has established the other incriminating
circumstances to its entirety, absence of motive will not give any
benefit to the accused - Motive could be an important circumstance
but it per se does not take place as conclusive proof that the person
concerned was the author of the crime.
Evidence Act, 1872: s.27 - Discovery Statement - Information
received from the accused must result into discovery of fact for s.
27 to apply - While making such deposition, the accused must be in
police custody - Only so much of information as relates distinctly
to the fact thereby discovered is admissible - Further mere discovery
cannot be interpreted as sufficient to infer authorship of concealment
by the person who discovered the weapon - There might be the
possibility that the person may have seen somebody concealing the
weapon, therefore it cannot be presumed or inferred that because a
person discovered weapon, he was the person who concealed it,
least it can be presumed that he used it.
Evidence Act, 1872: Confession - Classification and Scope
- Confession can be classified as Judicial and extra-judicial -
Former relates to those which are made before the Magistrate or
Court - Extra Judicial are made before a private individual and
which may include judicial officer in private capacity and
Magistrate not especially empowered u/s 164 CrPC or the one so
empowered but receiving confession at stag

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SUPREME COURT REPORTS
[2022] 5 S.C.R.
RAMANAND @ NANDLAL BHARTI
v.
 STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 64-65 of 2022)
OCTOBER 13, 2022
[UDAY UMESH LALIT, CJI, S. RAVINDRA BHAT AND
J. B. PARDIWALA, JJ.]
Penal Code, 1860: s.302 - Prosecution case was that on
fateful day, appellant-accused murdered his wife and four children
with a sharp cutting weapon while they were sleeping - Motive
behind the murder was attributed to extra marital affair of appellant
with one married lady which was highly opposed by the deceasedwife - Discovery statement made by appellant and consequently
recovery made - Appellant said to have made extra judicial
confession to prosecution witness - Trial court convicted the
appellant and passed death sentence - High Court confirmed the
death sentence - Hence instant appeal - Held: Present case is based
on circumstantial evidence - Mere discovery is insufficient to infer
the authorship of concealment by the person who discovered the
weapon - The exact words of the accused person while making
discovery statement was not deposed by prosecution witness -
Further, the contents of panchnama were not proved - Credibility
of police witness (PW-6 and PW-7) was doubtful and evidence of
discovery was held to be unreliable - Credibility of extra judicial
confession was also doubted in view of oral evidence of prosecution
witness - As circumstance relating to extra judicial confession and
discovery of weapon of offence were not established, the chain of
circumstantial evidence was not established fully and thus other
circumstance such as motive or the evidence of false explanation
offered by the appellant as an additional link in chain of evidence
were not considered - Further, the explanation offered by the
accused for injuries on his body could be said to be compatible
with the defense story - Prosecution failed to establish the case
beyond reasonable doubt and therefore the conviction is set aside.
Evidence Act, 1872: s.8 - Relevance of Motive - Circumstantial
Evidence - There cannot be straight jacket formula for appreciation
[2022] 5 S.C.R. 162
162
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of circumstantial evidence - Circumstances suggesting guilt must
be cogently and firmly established - The same must be of definite
tendency and conclusive in nature - The circumstances should form
the chain which conclusively points towards the guilt of accused in
all human probability - Circumstantial evidence must be complete
and should be devoid of any hypothesis giving room for accused's
innocence but must support only one hypothesis i.e. his guilt - Motive,
though not as such an element of crime, but it assumes greater
importance in cases resting on circumstantial evidence - Absence
of motive could be a missing link of incriminating circumstances,
but once the prosecution has established the other incriminating
circumstances to its entirety, absence of motive will not give any
benefit to the accused - Motive could be an important circumstance
but it per se does not take place as conclusive proof that the person
concerned was the author of the crime.
Evidence Act, 1872: s.27 - Discovery Statement - Information
received from the accused must result into discovery of fact for s.
27 to apply - While making such deposition, the accused must be in
police custody - Only so much of information as relates distinctly
to the fact thereby discovered is admissible - Further mere discovery
cannot be interpreted as sufficient to infer authorship of concealment
by the person who discovered the weapon - There might be the
possibility that the person may have seen somebody concealing the
weapon, therefore it cannot be presumed or inferred that because a
person discovered weapon, he was the person who concealed it,
least it can be presumed that he used it.
Evidence Act, 1872: Confession - Classification and Scope
- Confession can be classified as Judicial and extra-judicial -
Former relates to those which are made before the Magistrate or
Court - Extra Judicial are made before a private individual and
which may include judicial officer in private capacity and
Magistrate not especially empowered u/s 164 CrPC or the one so
empowered but receiving confession at stage where s.164 does not
apply.
Evidence Act, 1872: Extra Judicial Confession - Weightage
- It is a weak type of evidence since it can be easily procured
whenever direct evidence is not available - It is not open to the
Court to start with a presumption that extra-judicial confession is
RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR
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weak type of evidence - It can be accepted and can be the basis of
a conviction if it passes the test of credibility - Credibility can be
tested by keeping in mind that it comes from an unbiased witness
who is not inimical to accused and who do not have motive for
attributing an untruthful statement to the accused etc.
Evidence Act, 1872: Confession - Basis of Conviction -
Explained - It is well settled that conviction can be based on a
voluntarily confession but the rule of prudence requires that
wherever possible it should be corroborated by the independent
evidence - Further Extra-Judicial confession of accused need not
in all cases be corroborated - Also the confession procured under
promise or threat or harassment is involuntary in nature and cannot
be use in evidence - Involuntary confession is not which is not the
result of free will of the maker.
Evidence Act, 1872: Code of Criminal Procedure, 1973 -
s.313 - False Explanation tendered by the accused - Whether forms
additional link in circumstantial evidence - Explained - The
prosecution must stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence - It is not the law
where there is any infirmity or lacunae in the prosecution case, the
same could be cured or supplied by a false defence or a false plea
which is not accepted by a Court - Only when all the circumstantial
evidence are well established which points towards the guilt then
only false explanation or false defence tendered by accused can be
used as additional link and not otherwise.
Evidence Act, 1872: Burden of Proof - Extent and Meaning
- In criminal trial the burden on the accused is to show the
"preponderance of probabilty" - The accused is not under burden
to prove his case beyond reasonable doubt unlike prosecution -
The meaning which the term "preponderance of probabilty" carries
is something which connotes to "more probable and rational view
of the case", not necessarily as certain as the pleading should be -
The high standard of proof as required for prosecution is only to
avoid wrongful conviction as the wrongful conviction leads to
greater injustice than wrongful acquittal.
Constitution of India: Art.39A - Code of Criminal Procedure,
1973 - s.304 - Legal Services Authorities Act, 1987 - s.9 - Legal
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aid to accused - Duty of State - Explained - What is meant by the
duty of the State to ensure a fair defence to an accused is not the
employment of a defence counsel for namesake - It has to be the
provision of a counsel who defends the accused diligently to the
best of his abilities - The presence of counsel on record means
effective, genuine and faithful presence and not a mere farcical,
sham or a virtual presence that is illusory, if not fraudulent -
Indigence should never be a ground for denying fair trial or equal
justice therefore, particular attention should be paid to appoint
competent advocates, equal to handling the complex cases, not
patronising gestures to raw entrants to the Bar.
Allowing the appeals, the court
HELD: 1.1 Although there can be no straight jacket formula
for appreciation of circumstantial evidence, yet to convict an
accused on the basis of circumstantial evidence, the Court must
follow certain tests which are broadly as follows: Circumstances
from which an inference of guilt is sought to be drawn must be
cogently and firmly established; Those circumstances must be of
a definite tendency unerringly pointing towards guilt of the
accused and must be conclusive in nature; The circumstances, if
taken cumulatively, should form a chain so complete that there is
no escape from the conclusion that within all human probability
the crime was committed by the accused and none else; and The
circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused but should be inconsistent
with his innocence. In other words, the circumstances should
exclude every possible hypothesis except the one to be proved.
[Para 46][189-G-H; 190-A-D]
Sharad Birdhichand Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88 - relied on.
1.2 The case is one of the circumstantial evidence as there
was no eye witness of the occurrence. It is settled principle of
law that an accused can be punished if he is found guilty even in
cases of circumstantial evidence provided, the prosecution is able
to prove beyond reasonable doubt the complete chain of events
and circumstances which definitely points towards the involvement
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and guilty of the suspect or accused, as the case may be. The
accused will not be entitled to acquittal merely because there is
no eye witness in the case. It is also equally true that an accused
can be convicted on the basis of circumstantial evidence subject
to satisfaction of the expected principles in that regard. [Para
47][190-D-F]
2.1 The conditions necessary for the applicability of Section
27 of the Act are broadly as : (i) Discovery of fact in consequence
of an information received from accused; (iv) Discovery of such
fact to be deposed to; (iii) The accused must be in police custody
when he gave information; and (iv) So much of information as
relates distinctly to the fact thereby discovered is admissible.
[Para 64][199-F-H]
2.2 What emerges from the evidence in the form of
panchnama is that the appellant stated before the panch witnesses
to the effect that "I will show you the weapon used in the
commission of offence". This is the exact statement which could
be read from the discovery panchnama and the Investigating
Officer also could not have deposed as regards the exact
statement other than what has been recorded in the panchnama.
This statement does not suggest that the appellant indicated
anything about his involvement in concealment of the weapon.
Mere discovery cannot be interpreted as sufficient to infer
authorship of concealment by the person who discovered the
weapon. He could have derived knowledge of the existence of
that weapon at the place through some other source. He may
have even seen somebody concealing the weapon, and, therefore,
it cannot be presumed or inferred that because a person
discovered weapon, he was the person who concealed it, least it
can be presumed that he used it. Therefore, even if discovery by
the appellant is accepted, what emerges from the panchnama of
the discovery of weapon and the evidence in this regard is that
he disclosed that he would show the weapon used in the
commission of offence. [Para 67][201-D-G]
Murli v. State of Rajasthan (2009) 9 SCC 417 : [2009]
13 SCR 378; Mohmed Inayatullah v. The State of
Maharashtra AIR (1976) SC 483 : [1976] 1 SCR 715;
Earabhadrappa v. State of Karnataka AIR (1983) SC
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446 : [1983] 2 SCR 552; State of Uttar Pradesh v.
Deoman Upadhyaya AIR (1960) SC 1125 : [1961] 1
SCR 14 - relied on.
Pulukuri Kottaya and Others v. Emperor AIR 1947 PC
67; Dudh Nath Pandey v. State of U.P. AIR 1981 SC
911 : [1981] 2 SCR 771; Bodhraj Alias Bodha and
Others v. State of Jammu and Kashmir (2002) 8 SCC
45 : [2002] 2 Suppl. SCR 67; A.N. Venkatesh v. State of
Karnataka (2005) 7 SCC 714 - referred to.
3.1 Confessions may be divided into two classes, i.e. judicial
and extra judicial. Judicial confessions are those which are made
before Magistrate or Court in the course of judicial proceedings.
Extra judicial confessions are those which are made by the party
elsewhere than before a Magistrate or Court. Extra judicial
confessions are generally those made by a party to or before a
private individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is not especially
empowered to record confessions under Section 164 of the CrPC
or a Magistrate so empowered but receiving the confession at a
stage when Section 164 does not apply. As to extra judicial
confessions, two questions arise: (i) were they made voluntarily?
And (ii) are they true? [Para 80][208-B-C]
3.2 An extra judicial confession by its very nature is rather
a weak type of evidence and requires appreciation with great
deal of care and caution. Where an extra judicial confession is
surrounded by suspicious circumstances, its credibility becomes
doubtful and it loses its importance like the case in hand. The
Courts generally look for an independent reliable corroboration
before placing any reliance upon an extra judicial confession. [Para
85][212-F-G]
State of Rajasthan v. Raja Ram (2003) 8 SCC 180 :
[2003] 2 Suppl. SCR 445; Madan Gopal Kakkad v.
Naval Dubey and Another (1992) 3 SCC 204 : [1992]
2 SCR 921; Piara Singh and Others v. State of Punjab
(1977) 4 SCC 452 : [1978] 1 SCR 597 - relied on.
Sahadevan and Another v. State of Tamil Nadu (2012)
6 SCC 403 : [2012] 4 SCR 366 - referred to.
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4. It is a settled principle of criminal jurisprudence that in
a case based on circumstantial evidence, motive for committing
the crime on the part of the accused assumes greater importance.
This Court in various decisions has laid down the principles
holding that motive for commission of offence no doubt assumes
greater importance in cases resting on circumstantial evidence
than those in which direct evidence regarding commission of
offence is available. It is equally true that failure to prove motive
in cases resting on circumstantial evidence is not fatal by itself.
However, it is also well settled and it is trite in law that absence
of motive could be a missing link of incriminating circumstances,
but once the prosecution has established the other incriminating
circumstances to its entirety, absence of motive will not give any
benefit to the accused. Thus, even if it is believed that the accused
appellant had a motive to commit the crime, the same may be an
important circumstance in a case based on circumstantial
evidence but cannot take the place as a conclusive proof that the
person concerned was the author of the crime. One could even
say that the presence of motive in the facts and circumstances of
the case creates a strong suspicion against the accused appellant
but suspicion, howsoever strong, cannot be a substitute for proof
of the guilt of the accused beyond reasonable doubt. [Paras 87,
90][213-D-E; 215-D]
Sampath Kumar v. Inspector of Police Krishnagiri
(2012) 4 SCC 124 : [2012] 2 SCR 289 - relied on.
5.1 According to the trial court and the High Court, the
explanation offered by the accused appellant in regard to the
injuries suffered by him on his head is established to be false. In
such circumstances, both the courts took the view that the false
explanation offered by the accused appellant is an additional link
in the chain of circumstances. It is not necessary for this court to
go into the issue of false explanation, said to have been offered
by the accused appellant as at the most a false explanation can be
used as an additional link in the chain of evidence led by the
prosecution. This issue pales into insignificance as the various
links in the chain of evidence led by the prosecution having not
been satisfactorily proved. [Para 92 and 100][215-H; 216-A; 218C]
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5.2 It is well settled that the prosecution must stand or fall
on its own legs and it cannot derive any strength from the
weakness of the defence. Where various links in a chain are in
themselves complete, then a false plea or a false defence may be
called into aid only to lend assurance to the Court. In other words,
before using the additional link it must be proved that all the
links in the chain are complete and do not suffer from any infirmity.
It is not the law where there is any infirmity or lacunae in the
prosecution case, the same could be cured or supplied by a false
defence or a false plea which is not accepted by a Court. [Para
96][217-B-C]
5.3 Before a false explanation can be used as an additional
link, the following essential conditions must be satisfied: (i)
Various links in the chain of evidence led by the prosecution have
been satisfactorily proved. (ii) Such circumstances points to the
guilt of the accused as reasonable defence. (iii) The circumstance
is in proximity to the time and situation.If the aforesaid conditions
are fulfilled only then a Court use a false explanation or a false
defence as an additional link to lend as assurance to the Court
and not otherwise. [Para 97, 98][217-D-F]
Shankarlal Gyarasilal Dixit v. State of Maharashtra
(1981) 2 SCC 35 : [1981] 2 SCR 384 - relied on.
Charles R. Cooper v. F. W. Slade (1857-59) 6 HLC 746
- referred to.
6. None of the pieces of evidence relied on as incriminating
by the courts below, can be treated as incriminating pieces of
circumstantial evidence against the accused. Realities or truth
apart, the fundamental and basic presumption in the
administration of criminal law and justice delivery system is the
innocence of the alleged accused and till the charges are proved
beyond reasonable doubt on the basis of clear, cogent, credible
or unimpeachable evidence, the question of indicting or punishing
an accused does not arise, merely carried away by heinous nature
of the crime or the gruesome manner in which it was found to
have been committed. [Para 116][223-F-H]
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7. It is by far now well-settled for a legal proposition that it
is the duty of the court to see and ensure that an accused put on
a criminal trial is effectively represented by a defence counsel,
and in the event on account of indigence, poverty or illiteracy or
any other disabling factor, he is not able to engage a counsel of
his choice, it becomes the duty of the court to provide him
appropriate and meaningful legal aid at the State expense. What
is meant by the duty of the State to ensure a fair defence to an
accused is not the employment of a defence counsel for namesake.
It has to be the provision of a counsel who defends the accused
diligently to the best of his abilities. While the quality of the
defence or the caliber of the counsel would not militate against
the guarantee to a fair trial sanctioned by Articles 21 and 22 resply
of the Constitution, a threshold level of competence and due
diligence in the discharge of his duties as a defence counsel would
certainly be the constitutional guaranteed expectation. The
presence of counsel on record means effective, genuine and
faithful presence and not a mere farcical, sham or a virtual
presence that is illusory, if not fraudulent.[Para 119][224-G-H;
225-A-B]
Dhananjay Shanker Shetty v. State of Maharashtra
(2002) 6 SCC 596 : [2002] 1 Suppl. SCR 352; Mohar
Rai and Bharath Rai v. State of Bihar AIR 1968 SC
1281 : [1968] 3 SCR 525; Lakshmi Singh and Others
v. State of Bihar (1976) 4 SCC 394; Vijay Singh and
Ors. v. State of U.P. (1990) CriLJ 1510; Ashish Batham
v. State of M.P. (2002) 7 SCC 317 : [2002] 2 Suppl.
SCR 146; Kishore Chand v. State of Himachal Pradesh
(1991) 1 SCC 286 : [1990] 1 Suppl. SCR 105; Zahira
Habibullah Sheikh (5) and Another v. State of Gujarat
and Others (2006) 3 SCC 374 : [2006] 2 SCR 1081;
Ranchod Mathur Wasawa v. State of Gujarat (1974) 3
SCC 581 : [1974 ] 2 SCR 72; Madhav Hayawadanrao
Hoskot v. State of Maharashtra (1978) 3 SCC 544 :
[1979] 1 SCR 192; Subhash Chand v. State of
Rajasthan (2002) 1 SCC 702 : [2001] 4 Suppl. SCR
163 - referred to.
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Case Law Reference
[1985] 1 SCR 88
relied on
Para 48
[2009] 13 SCR 378
relied on
Para 62
[1976] 1 SCR 715
relied on
Para 64
[1983] 2 SCR 552
relied on
Para 64
[1961] 1 SCR 14
relied on
Para 64
[1981] 2 SCR 771
referred to
Para 69
[2002] 2 Suppl. SCR 67
referred to
Para 72
(2005) 7 SCC 714
referred to
Para 73
[2003] 2 Suppl. SCR 445
relied on
Para 80
[2012] 4 SCR 366
referred to
Para 83
[1992] 2 SCR 921
relied on
Para 84
[1978] 1 SCR 597
relied on
Para 84
[2012] 2 SCR 289
relied on
Para 89
[1985] 1 SCR 88
referred to
Para 98
[1981] 2 SCR 384
relied on
Para 105
[2002] 1 Suppl. SCR 352
referred to
Para 111
[1968] 3 SCR 525
referred to
Para 112
(1976) 4 SCC 394
referred to
Para 113
[2002] 2 Suppl. SCR 146
referred to
Para 116
[1990] 1 Suppl. SCR 105
referred to
Para 123
[2006] 2 SCR 1081
referred to
Para 124
[1974 ] 2 SCR 72
referred to
Para 125
[1979] 1 SCR 192
referred to
Para 127
[2001] 4 Suppl. SCR 163
referred to
Para 129
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 64-65 of 2022.
RAMANAND @ NANDLAL BHARTI v. STATE OF UTTAR
PRADESH
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From the Judgment and Order dated 09.07.2021 of the High Court
of Judicature at Allahabad, Lucknow Bench in Capital Sentence No.01
of 2016 and Criminal Appeal No. 1959 of 2016.
S. Niranjan Reddy, Sr. Adv., Vibhor Jain, Ms. Stuti Rai, Sahil
Raveen, Ms. Akhila Palem, Mahfooz Ahsan Nazki, Advs. for the
Appellant.
Adarsh Upadhyay, Anurag Kishore, Amit Singh, Ajay Prajapati,
B. N. Dubey, Aman Pathak, Advs. for the Respondent.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Mark Twain, the great American writer and philosopher, once
said:
"It is like this, take a word, split it up into letters, the letters,
may individually mean nothing but when they are combined
they will form a word pregnant with meaning. That is the way
how you have to consider the circumstantial evidence. You
have to take all the circumstances together and judge for
yourself whether the prosecution have established their case."
2. These appeals, by special leave, arise out of the judgment and
order dated 09.07.2021 passed by the High Court of Judicature at
Allahabad, Bench at Lucknow confirming the death sentence awarded
to the accused appellant herein.
3. The accused appellant has been held guilty of the offence
punishable under Section 302 of the Indian Penal Code (for short, "the
IPC"). The trial court (Sessions Judge, Lakhimpur Kheri) sentenced the
accused appellant to death under Section 302 of the IPC and pay fine
of Rs. 20,000/- and in default of payment of fine to undergo further
rigorous imprisonment for one year. While the Sessions Judge, Lakhimpur
Kheri made a reference to the High Court for confirmation of death
sentence under Section 366 of the Code of Criminal Procedure (for
short, "the CrPC"), the accused appellant preferred Criminal Appeal
No. 1959 of 2016 putting in issue his conviction and sentence. The High
Court dismissed the Criminal Appeal No. 1959 of 2016 filed by the accused
appellant thereby confirming the death reference under Section 366 of
the CrPC.
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4. In such circumstances referred to above, the accused appellant
is here before this Court with the present appeals.
CASE OF THE PROSECUTION
5. According to the case of the prosecution, the accused appellant
Ramanand was married to Sangeeta (deceased) for the past 12 years
before the incident in question. In the wedlock, five children were born -
one son and four daughters, by name Gaurav Ambedkar aged 10 years,
Tulsi aged 7 years, Lakshmi aged 5 years, Kajal aged 3 years and Guddi
aged one and a half month.
6. On the fateful night of the incident i.e. the intervening night
between 21st & 22nd of January, 2010 while the wife and four children
were sleeping in the house situated at the village Basdhiya, the accused
appellant is said to have mercilessly clobbered all the five to death with
a sharp cutting weapon called Banka. At the relevant point of time, the
son of the accused appellant was not residing with the family. The son
aged 10 years at the time of incident was residing at a different village
with one police constable. The motive behind the crime as put forward
by the prosecution is the extra marital affair of the accused appellant
with one married lady by name Manju. According to the prosecution, the
accused appellant desperately wanted to marry Manju. Further, the wife
of the accused appellant namely, Sangeeta (deceased) was highly
opposed to the relationship of her husband with Manju. In such
circumstances, it is the case of the prosecution that the accused appellant
decided to terminate not only his wife Sangeeta but also his four minor
daughters.
7. It all started with the First Information Report (FIR) lodged by
the PW-1, Shambhu Raidas, who happens to be the brother-in-law of
the accused appellant (husband of the accused appellant's sister). The
FIR came to be lodged by the PW-1, Shambhu Raidas at the Dhaurhara
Police Station, District Lakhimpur Kheri on 22.01.2010 at 9:45 A.M.
The FIR (Ext. 40) reads thus:-
"To, Station House Officer, Kotwali-Dhaurahara, District
Kheri. Sir, It is submitted that the applicant Shambhu Raidas
son of Late Shri Shyam Lal Raidas is the resident of village -
Naamdar Purwa, Police Station - Kotwali Dhaurahara,
District Lakhimpur Kheri. Today on 22.01.2010 when I was
present at my home then at about 6.30 o'clock in the morning
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my saala (brother-in-law) Ramanand Raidas son of Gobre
Raidas resident of Naamdar Purwa, Hamlet-Amethi, Police
Station Dhaurahara, Lakhimpur Kheri came and told that,
"Last night I was sleeping with my wife & children. Then at
about 1.00 o'clock in the night someone knocked at my door,
I woke up and asked who was there but none replied. Then I
went to the roof of my house and saw that four persons were
standing outside the house. I switched on the torch. I saw that
that one person who was resident of village- Basadiha, Police
Station Ishanaga and known to Ramanand fired on me by
gun; I escaped and jumped and came down. Then one miscreant
hit on my head by the butt of a gun. I ran away and hid in the
fields and saw that the miscreants climbed into my home. I
saw, smoke coming out of my home. Then I ran to Behnan
Purwa and told about the incident at Crusher of Khaliq and
to the people at Ramnagar Lahbadi but none came ahead. I
came running here". Then I alongwith my nephew Pratap
reached the house of Ramanand and saw that the wife of
Ramanand namely Sangita, aged about 35 years, daughters
Tulsi aged about 7 years, Laxmi aged about 5 years, Kajal
aged about 3 years and a girl child of about 11⁄2 month had
been killed and the dead bodies were burning. Then I and
Pratap started extinguishing the fire by pouring water with
the aid of a bucket. Behind us Ramanand too came to his
house & home, sat in the courtyard and started warming
himself in front of the fire (Aag Taapne laga). On seeing this,
both of us scolded him that, "Your wife-daughters have been
killed and you are sitting in the courtyard and warming
yourself before fire".
On this Ramanand got annoyed and went outside the house.
The dead bodies are lying at the spot. I came to inform. Lodge
the case and take legal action."
Thumb Impression (T.I.) Shambhu Raidas, Applicant, Shambhu
Raidas son of Late Shyam Lal Raidas, Resident of village
Naamdar Purwa, Hamlet Amethi, Police Station Dhaurahara,
District Khera. Date 22.01.2010."
[Emphasis supplied]
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8. Thus, it is the case of the prosecution that after the incident the
accused appellant went straight to the house of the PW-1, Shambhu
Raidas at about 6:30 in the morning. The accused appellant is said to
have informed the PW-1, Shambhu Raidas as to what had transpired at
around 1 o'clock in the night. PW-1, Shambhu Raidas thought fit to
inform the police and accordingly lodged the FIR as aforesaid against
four unidentified persons.
9. Upon registration of the FIR, the police started the investigation.
The investigating officer carried out the inquest proceedings of all the
five deceased persons. The dead bodies were sent to the Civil Hospital
for post mortem. Thereafter, the investigating officer prepared a site
plan of the crime scene (Ext. 6). The post mortem reports revealed
that all the five deceased had suffered incised wounds mostly on the
head and the neck region. The burn injuries were certified to be post
mortem, whereas the incised wounds were certified as ante mortem
injuries. The cause of death assigned in all the post mortem reports is
shock and haemorrhage as a result of ante mortem head injuries.
10. The accused appellant is shown to have been arrested by the
investigating officer on 24th of January, 2010. After the arrest and while
the accused appellant was in custody, he is said to have made a voluntary
statement that he would show the place where he had hidden the weapon
of offence i.e. Banka and his blood stained clothes. Accordingly, the
discovery panchnama was drawn of the weapon of offence (Ext. 5). It
appears that in the course of investigation, the investigating officer
recorded the statements of PW-3, Baburam Hans son of Ramcharan
and PW-4, Ram Kumar son of Paanchoo before whom the accused
appellant is said to have made extra judicial confession. The investigating
officer also recorded the statement of the PW-1, Shambhu Raidas, the
first informant and PW-2, Chhatrajpal Raidas (brother of the deceased
Sangeeta).
11. At the end of the investigation, charge sheet came to be filed
for the offence of murder punishable under Section 302 of the IPC. The
Magistrate committed the case to the Court of Sessions Judge, Lakhimpur
Kheri under Section 209 of the CrPC. Upon committal, the Sessions
Trial No. 379 of 2010 came to be registered.
12. On 06.07.2010 the Additional District and Sessions Judge,
Fast Track Court, Lakhimpur Kheri framed charge against the accused
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appellant. The statement of the accused appellant was recorded. The
appellant did not admit the charge and claimed to be tried.
13. The prosecution adduced the following oral evidence in
support of its case:
S. No.
 Oral Evidence - Witness
1.
PW-1 Shambhu Raidas
2.
PW-2 Chhatrapal Raidas
3.
PW-3 Babu Ram Hans
4.
PW-4 Ram Kumar
5.
PW-5 Dr. A.K. Sharma
6.
PW-6 S.I. Uma Shankar Mishra
7.
PW-7 Inspector Yogendra Singh
8.
PW-8 Dr. S.P. Singh
9.
PW-9 Dr. Ankit Kumar Singh
10.
PW-10 H.M. Dhani Ram Verma
14. The prosecution also adduced the following documentary
evidence:
S.No.
 Documentary Evidence
1.
Tahreer /Written Complaint
[Ex. Ka-1]
2.
Post-mortem report of deceased Laxmi
[Ex. Ka-2]
3.
Post-mortem report of deceased Kajal
[Ex. Ka-3]
4.
Post-mortem report of deceased Chhoti @ Guddi
[Ex. Ka-4]
5.
Discovery memorandum of murder weapon and clothes
[Ex. Ka-5]
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6.
Site plan of crime scene
[Ex. Ka-6]
7.
Site plan of discovery of murder weapon
[Ex. Ka-7]
8.
Charge sheet
[Ex. Ka-8]
9.
Seizure memo of ash-mixed and plain soil
[Ex. Ka-9]
10.
Inquest Report of deceased Sangeeta Devi
[Ex. Ka-10]
11.
Photo lash of deceased Sangeeta
[Ex. Ka-11]
12.
Police Paper No. 13 of deceased Sangeeta
[Ex. Ka-12]
13.
Specimen seal regarding deceased Sangeeta
[Ex. Ka-13]
14.
Letter to Reserve Inspector regarding deceased Sangeeta
[Ex. Ka-14]
15.
Letter to C.M.O. regarding deceased Sangeeta
[Ex. Ka-15]
16.
Inquest Report of deceased Km. Tulsi
[Ex. Ka-16]
17.
Photo lash of deceased Km. Tulsi
[Ex. Ka-17]
18.
Specimen seal regarding deceased Km. Tulsi
[Ex. Ka-18]
19.
Letter to Reserve Inspector regarding deceased Km. Tulsi
[Ex. Ka-19]
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20.
Letter to C.M.O. regarding deceased Km. Tulsi
[Ex. Ka-20]
21.
Police Paper No. 13 of deceased Km. Tulsi
[Ex. Ka-21]
22.
Inquest Report of deceased Km. Kajal
[Ex. Ka-22]
23.
Police Paper No. 13 of deceased Km. Kajal
[Ex. Ka-23]
24.
Photo lash of deceased Km. Kajal
[Ex. Ka-24]
25.
Specimen seal regarding deceased Km. Kajal
[Ex. Ka-25]
26.
Letter to Reserve Inspector regarding deceased Km.
Kajal
[Ex. Ka-26]
27.
Letter to C.M.O. regarding deceased Km.Kajal
[Ex. Ka-27]
28.
Inquest Report of deceased Km. Laxmi
[Ex. Ka- 28]
29.
Photo lash of deceased Km. Laxmi
[Ex. Ka-29]
30.
Police Paper No. 13 of deceased Km. Laxmi
[Ex. Ka-30]
31.
Specimen seal regarding deceased Km. Laxmi
[Ex. Ka-31]
32.
Letter to Reserve Inspector regarding deceased Km.
Laxmi
[Ex. Ka-32]
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33.
Letter to C.M.O. regarding deceased Km. Laxmi
[Ex. Ka-33]
34.
Inquest Report of deceased Km. Chhoti
[Ex. Ka-34]
35.
Photo lash of deceased Km. Chhoti @ Guddi
[Ex. Ka-35]
36.
Police Paper No. 13 of deceased Km. Chhoti @ Guddi
[Ex. Ka-36]
37.
Specimen seal regarding deceased Km. Chhoti @ Guddi
[Ex. Ka-37]
38.
Letter to Reserve Inspector regarding deceased Km.
Chhoti @ Guddi
[Ex. Ka-38]
39.
Letter to C.M.O. regarding deceased Km. Chhoti @
Guddi
[Ex. Ka-39]
40.
Chik FIR
[Ex. Ka-40]
41.
Copy of general diary
[Ex. Ka-41]
42.
Post-mortem report of deceased Tulsi
[Ex. Ka-42]
43.
Post-mortem report of deceased Sangeeta
[Ex. Ka-43]
44.
Medical examination report of the accused
[Ex. Ka-44]
15. After completion of the oral as well as documentary evidence,
the statements of the accused appellant under Section 313 of the CrPC
were recorded in which the accused appellant stated that he was innocent
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and had been falsely implicated in the alleged crime. The accused
appellant took the defence that few individuals of a rival party had
committed the murder of his wife and daughters as Sangeeta (deceased)
was the sole eye witness to the murder of the brother of the accused
appellant. The trial against the accused persons who had killed the brother
of the accused appellant was pending at that point of time. The rival
party wanted to terminate Sangeeta and for that reason, four individuals
came to his house at about 1 o'clock in the night of 22nd of January, 2010
and mercilessly killed all his five family members and thereafter set the
bodies on fire. The trial court disbelieved such defence of the accused
appellant.
16. At the conclusion of the trial, the Trial Judge convicted the
accused appellant for the offence under Section 302 of the IPC and
sentenced him to death relying upon the following incriminating
circumstances:
(i)
Discovery of weapon of offence and blood-stained clothes
at the instance of the accused appellant.
(ii)
Extra Judicial confession of the accused appellant before
two prosecution witnesses.
(iii)
Strong motive to commit the crime.
(iv)
False explanation at the instance of the accused appellant
and his unnatural conduct.
17. The appeal filed by the accused appellant in the High Court
also failed and was ordered to be dismissed.
18. Being dissatisfied, the accused appellant has come up with
the present appeals.
SUBMISSIONS ON BEHALF OF THE ACCUSED
APPELLANT
19. Mr. S. Niranjan Reddy, the learned senior counsel appearing
for the accused appellant vehemently submitted that both, the trial court
and the High Court committed a serious error in holding the accused
appellant guilty of the offence of murder of his wife and four minor
daughters. He would submit that in the course of the trial the prosecution
failed to lead any credible evidence to connect the accused appellant
with the alleged crime. Mr. Reddy vehemently submitted that both the
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Courts below ought not to have accepted the evidence of PW-3, Babu
Ram Hans and PW-4, Ram Kumar resply so as to believe the extra
judicial confession alleged to have been made by the accused appellant
before them. Mr. Reddy submitted that both the Courts below should
have discarded the evidence of discovery of weapon and the blood-stained
clothes as the prosecution has not been able to prove the authorship of
concealment. He would submit that in a case of circumstantial evidence,
the prosecution is required to establish the continuity in the links of the
chain of the circumstances so as to lead to the only and inescapable
conclusion of the accused being the assailant, inconsistent or incompatible
with the possibility of any other hypothesis compatible with the innocence
of the accused.
20. Mr. Reddy vociferously submitted that the PW-3 and PW-4
resply are 'got up' witnesses. The evidence in the form of extra judicial
confession is nothing but a fabricated piece of evidence at the instance
of the investigating officer just with a view to bolster up the case of the
prosecution in the absence of any direct evidence. He would submit that
both these prosecution witnesses are absolutely unreliable.
21. Mr. Reddy submitted that in a case which is based on
circumstantial evidence, motive plays an important role. He would submit
that the prosecution has not been able to prove the motive behind the
crime. The extra marital affair of the accused appellant with Manju and
the desire of the accused appellant to marry Manju at any cost has been
put forward as the motive behind the crime. However, there is no cogent
and credible evidence in that regard. He would submit that even
otherwise an accused cannot be convicted and sentenced to death only
on the circumstance of motive.
22. Mr. Reddy would submit that the prosecution has not been
able to explain the injuries suffered by the accused in any manner. He
would submit that on the contrary, it is the accused who has been able
to explain how he suffered the injuries on his head and chest while
putting forward his defence before the High Court in his statement
recorded under Section 313 of the CrPC. Having noticed that the accused
appellant had suffered injuries on his head and was bleeding, the accused
appellant along with one police constable was sent for medical examination
at the District Hospital, District Kheri. The accused appellant was taken
to the hospital by a constable viz. Brij Mohan Singh, Dhaurhara, District
Kheri. The PW-9, Dr. Ankit Kumar Singh has issued a medical certificate
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Ext. 44 stating the nature of the injuries noticed on the body of the
accused appellant.
23. Mr. Reddy further submitted that once the extra judicial
confession alleged to have been made before the two prosecution
witnesses i.e. the PW-3 and PW-4 resply and the evidence of the discovery
of the weapon of offence is discarded and eschewed from consideration,
then nothing remains in the case of the prosecution.
24. Lastly, Mr. Reddy would submit that howsoever unnatural
one may find the conduct of the accused after the alleged crime, the
same, by itself, is not sufficient to convict the accused for an offence
like murder. In such circumstances referred to above, Mr. Reddy prayed
that there being merit in his appeals, those may be allowed. He prayed
that the order of conviction and death penalty be set aside and the appellant
may be acquitted of the charge of murder.
SUBMISSIONS ON BEHALF OF THE STATE
25. Mr. Adarsh Upadhyay, the learned counsel appearing for the
respondent-State of Uttar Pradesh has on the other hand vehemently
opposed the appeals.