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CASE NO.: Appeal (crl.) 279-281  of  1995

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: BABU RAM

DATE OF JUDGMENT:       11/04/2000

BENCH: K.T. THOMAS & Y.K. SABHARWAL

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Whoever  was the assailant it was a hatrick for him when three  persons  of  the same house were slaughtered  in  one operation.  If respondent was the assailant it was a case of patricide-cum-matricide-cum-fratricide.   In  the  realm  of homicidal  crimes such episodes rarely happen.  So the  task is  heavy  for  the prosecution to carry conviction  of  the truth  of  the  allegation  against  the  respondent.   That perhaps may be the factor which influenced the High Court in giving benefit of doubt to this respondent.

   Babu  Ram - the respondent was found by the trial  court to have committed such a triple murder of his father, mother and  brother  and  buried  the   corpses  inside  their  own courtyard.  The Sessions Judge chose the extreme penalty for him  for  the offence under Section 302 IPC.  But he  got  a clean  chit from the High Court of Allahabad when a Division Bench exonerated him of the offence.  The State of U.P.  now challenges  the  order of acquittal in this appeal filed  by special leave.

   The  victims of the triple slaughter were Devi Dayal and his  wife Champa Devi and their son Sitaram.  The ill- fated parents  Devi Dayal and Champa Devi had 5 children - 3  sons and  2 daughters.  Respondent Babu Ram was the eldest  among the  children  and  Sitaram was the second son.   The  third among  the  sons  -  Radheshyam - was not  living  with  the parents  during  the  tragic night.  Two  daughters  of  the parents  were  Tarawati and Chakrawati.  Both of  them  were married  away  and they were living with their  husbands  in their  respective nuptial homes.  Devi Dayal and Champa Devi were  living  in their house at Kuri Lawa, Barabanki.   Babu Ram  and his brother Sitaram were also staying with them  in the  same house.  The third son Radheyshyam used to live  in the  house  of his sister Chakrawati.  Prosecution  case  is that  Babu  Ram  was pestering his parents to  part  with  a portion  of  their  landed property in his favour  but  that demand  was  not acceded to.  He, therefore, turned  against his  parents  and  the wicked thought  of  eliminating  them

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burgeoned in his mind in due course of time.  He nurtured it and  it was on 25.11.1990 that he could accomplish his plan. According  to  the prosecution case the respondent  did  the operation  extermination with the help of 4 other companions and  killed  not  only his parents but the  other  remaining brother  who  was  staying with them.  He  buried  the  dead bodies in a pit on the verandah of his house and covered the pit with red sand and straws, to make it appear differently.

   The  further case of the prosecution is that  respondent held  out to all others concerned that his parents had  gone to a temple with his brother Sitaram on the previous day and that  they did not return yet.  PW-1 Ram Saharey (brother of Devi  Dayal)  expressed doubt as to the said version of  the respondent.   The  same doubt was expressed by  respondent’s sisters and brothers-in-law also.  They therefore confronted the  respondent with some inconvenient queries and then  the respondent  had  burst  out and made a shrift of  the  whole episode to his listeners.  When he was asked to spot out the place  where the corpses were interred he moved to the  spot and disinterred all the three dead bodies.

   Devi  Dayal’s brother (Ram Sarahey) went to  Mohammedpur Police  Station and lodged a complaint at 11.30 A.M.  and on its  basis an FIR was made.  PW-5 Police Officer reached the house  without  much delay and during interrogation  of  the respondent  he  knew about the concealment of two spades  of different lengths.  They were recovered by the police.

   The  case was sought to be built up only on the basis of circumstantial   evidence.    Prosecution    presented   the following   circumstances  against   the  respondent:    (1) Appellant  and three murdered persons were the only  inmates of  the  house on the crucial night.  All the deceased  were found absent in the house on 25.11.1990.  (2) Appellant told the  neighbours  as well as his kith and kin that all the  3 deceased  persons  had  gone  to attend the  festival  in  a particular temple.  (3) later, when he was cornered, he told his  siblings  that  the 3 deceased were killed  by  him  in association  with  4 other persons and the dead bodies  were buried in a pit dug on the verandah.  (4) Respondent pointed out  the  spot wherefrom the dead bodies  were  disinterred. (5)  When  PW-5 questioned the respondent he told him  about concealment of the spades and a bloodstained cloth.

   If  the  prosecution  was able to  establish  the  above circumstances  with reliable evidence there is no scope  for contending that the cumulative effect of those circumstances would  be  insufficient  to point to the  appellant  as  the culprit.   So  the task of the prosecution was to  establish such  circumstances  which are enumerated above.   No  doubt Pw-1  - Ram Saharey who lodged the FIR turned hostile and so was  PW-2  Ram  Sumiran who was cited to speak to  an  extra judicial  confession.  So their evidence became  unavailable to the prosecution.  However, PW-6 (Tarawati - sister of the respondent)  and  PW-7 (brother-in- law of  the  respondent) stuck  to  their  version,  the substance of  which  is  the following:  On hearing the news about the missing of all the three  deceased from the house the two witnesses reached the house  along  with the other remaining  brother  Radheyshyam (who  was living with PW-6 Tarawati then).  When  respondent Babu  Ram  was  confronted  with the query  as  to  how  the deceased  could  have  gone to attend the  festival  of  the temple  when they had never gone to such a place earlier, he could  not  withstand  such  cross  questions  and  he  wept

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bitterly,  and  thereafter  he  owned that  the  three  were murdered  by him.  Respondent then took those persons to the spot where the dead bodies were buried and disinterred those bodies  after removing mud and bundles of rice crops  heaped thereon.

   Close to the above evidence is the testimony of PW-5 the Station  House  Officer of the local police.  What has  come out  materially in his evidence is that the accused told the police  that he had concealed one Kudal (a small spade)  and Fawara  (a  still  larger spade) and another  vestment,  and those articles were recovered by the police on being lead to the spot where they were concealed.

   The Sessions Judge found that the said items of evidence were  reliable  but  the Division Bench of  the  High  Court expressed  reservation in acting on the evidence of the same persons.   The premier reason advanced by the Division Bench against  the prosecution was the failure of the  prosecution to  make  out a strong motive.  Learned judges  have  stated thus  on that aspect:  "Existence of motive may not be  very much material in a case which is based on direct evidence as it may be argued that motive is hidden in the heart and mind of   the  accused,  and  it   would  be  difficult  for  the prosecution  in every case to extract the said motive and to bring the same on record.  However, in a case which is based on  circumstantial evidence, motive plays an important  role and  absence  of  motive would go a long way to  weaken  the prosecution case.........  In this case the accused has been charged  for  committing murders of his parents and  younger brother.   The  only whisper made in this case on behalf  of the  prosecution  was that the accused wanted his father  to give  his share in the property but his father had told  him that  he would do so after marriage of his daughters and the younger  son.  There is, however, no convincing evidence  on this  point  to  hold that the accused wanted  partition  to which his father did not agree."

   We  are  unable  to concur with  the  legal  proposition adumbrated  in the impugned judgment that motive may not  be very  much  material in cases depending on  direct  evidence whereas  motive is material only when the case depends  upon circumstantial  evidence.   There  is no legal  warrant  for making such a hiatus in criminal cases as for the motive for committing  the  crime.  Motive is a relevant factor in  all criminal  cases  whether  based  on  the  testimony  of  eye witnesses  or circumstantial evidence.  The question in this regard  is whether a prosecution must fail because it failed to  prove  the  motive or even whether  inability  to  prove motive  would  weaken  the prosecution  to  any  perceptible limit.  No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case  depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances.  However, it cannot be forgotten that it is generally a difficult area for  any prosecution to bring on record what was in the mind of  the respondent.  Even if the Investigating Officer would have  succeeded  in knowing it through  interrogations  that cannot  be put in evidence by them due to the ban imposed by law.

   In  this context we would reiterate what this court  has said about the value of motive evidence and the consequences of  prosecution  failing to prove it, in Nathuni  Yadav  vs. State  of  Bihar  {1998 (9) SCC 238} and State  of  Himachal

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Pradesh  vs.   Jeet  Singh  {1999 (4  SCC  370}.   Following passage can be quoted from the latter decision:

   "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that  no  criminal offence would have been committed if  the prosecution  has  failed to prove the precise motive of  the accused  to  commit it.  When the prosecution  succeeded  in showing  the possibility of some ire for the accused towards the  victim,  the  inability to further put  on  record  the manner  in which such ire would have swelled up in the  mind of  the offender to such a degree as to impel him to  commit the  offence cannot be construed as a fatal weakness of  the prosecution.    It  is  almost  an  impossibility  for   the prosecution  to  unravel  the full dimension of  the  mental disposition  of  an  offender  towards the  person  whom  he offended."

   The  present is not a case of complete dearth of motive. Respondent  himself said about the motive and PW-6 confirmed it.   Such a motive may appear to some persons as inadequate for   liquidating  once  own   parents.   But  any   rancour burgeoning  in  the  mind of an offender can  foment  wicked thoughts  which may even flame up to flash point.  So we are unable  to concur with the High Court’s view that the motive factor has weakened the prosecution case.

   The  Division Bench of the High Court hesitated to place reliance  on the circumstance relating to the  disinternment of  three  dead bodies from the verandah for  which  learned judges advanced the following reasons:  First is that in the site  plan prepared by the Investigating Officer he did  not give  particulars or details of that place.  Second is  that the  Investigating Officer did not mention about the  amount of  "mud and morang" noticed near the pit.  The third is  he did  not take into custody the wooden planks or the mud from the said place.  The last is he did not indicate in the site plan  that blood was found at that place nor did he take the bloodstained  earth therefrom.  After highlighting the above lapses  of  the  Investigating Officer  the  Division  Bench concluded  thus:  "These omissions would, therefore, in  our opinion   clearly  negative  the  theory   set  up  by   the prosecution  that  three  dead  bodies were  buried  in  the verandah  of  the  house of the accused.  By  examining  the statements  of  these  two witnesses, namely,  Tarawati  and Shital Prasad, in the light of these circumstances, we would not  be able to persuade ourselves to accept the  statements of  these  two  witness  thought they  are  the  sister  and brother-in-law of the accused."

   The  above  reasons of the Division Bench  for  dropping down  such a sturdy circumstance (disinterment of the  three dead  bodies  at the instance of the respondent) are  flimsy and  tenuous.   It is apparent that the Division  Bench  had strained  to ferret out some fragile grounds for  sidelining such a highly incriminating circumstance.  The very approach of  the  High Court in this regard does not merit  approval. It  is  not  possible  to understand the  rationale  of  the reasoning  that if an Investigating Officer did not instruct the  person  who drew up the site plan to note down  certain details   that  would  render   the  testimony  of  material witnesses unreliable.

   Regarding  the  circumstance that respondent  had  first tried  to  mislead  the  people by  saying  that  the  three

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deceased persons had gone to attend the temple festival, the Division  Bench  commented that as the said version was  not believed  by others as a probable version the respondent too would  not  have  chosen  to  give such  a  version  to  the witnesses.

   An  offender  who  attempts to mislead others  need  not necessarily  arm  with a ready foolproof explanation to  any cross-question  from  his  listeners.    Quite  often   such offenders  might  try to advance explanations  which  strike them   momentarily  when  they   are  compelled  to  explain incongruous  aspects.   If  the explanation offered  by  the offender appeared incredible to the listeners that is hardly a  ground to conclude that the offender would not have given such  explanation.  That apart, in this case it is pertinent to  point out that even when the respondent was examined  by the  trial  court under Section 313 of the Code of  Criminal Procedure  he has stated that the three deceased had gone to the  temple to participate in the festival.  If that was his own  stand even at the last stage, what is the need for  the High  Court to say that respondent would not have stated  so to PW-6 and PW-7?

   The   High   Court  has   chosen  to  sidestep   another incriminating  circumstance which is based on Section 27  of the  Evidence Act.  On the strength of the statement made by the  respondent two spades and a bloodstained "sadari"  were recovered by the Investigating Officer.  The reason advanced by the Division Bench is the following:

   "The  Investigating  Officer had come to know  that  the accused had allegedly made extra judicial confession but for the  reasons best known to him he did not think it proper to interrogate  the accused, who was present throughout on  the spot.   The accused was interrogated after midnight i.e.  in the  night of 25/26.11.90 and on the basis of this statement the  Investigating  Officer  had   recovered  the  articles, mentioned  above.  This conduct of the Investigating Officer creates  grave  doubt  regarding the  genuineness  of  extra judicial  confession as well as the statement leading to the recovery of the articles."

   We  are  unable  to appreciate the  said  reasoning  for dispelling  the  evidence which otherwise is a  circumstance positively  inculpating  the respondent.   An  Investigating Officer  may have his own reasons for not interrogating  the accused  as  soon as he saw him.  Court cannot overlook  the realities  that  Investigating Officer, who is  otherwise  a police  officer,  has to attend to umpteen  engagements  and even  in the investigation of the particular case itself  he may  have  to  observe a number of formalities, even  it  is assumed  that  he had only one case to investigate  at  that time.

   The High Court in reaching a conclusion in favour of the accused took into account the post-mortem findings regarding the  condition  of  the  stomach   of  the  three  deceased. "According  to  the  prosecution, murder took place  in  the night before 11 P.M.  The post-mortem reports indicated that the  stomachs  of the three deceased were empty,  large  and small  intestines  contained  faecal   matter  and   gases." According  to  the  High  Court, these  facts  would  go  to indicate  that  "murder  must have taken place in  the  very early morning and not in the night."

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   We  bear in mind that prosecution has fixed up the  time of  murder as 11 P.M.  on surmises.  Perhaps the actual time of  murder  would have been later in the night or  the  last meals would have been consumed by the deceased much earlier. By  any  stretch of imagination, on the facts of this  case, absence  of  any  food materials in the  stomach  cannot  be counted as a circumstance in favour of the assailant.

   Shri  N.P.   Midha, learned counsel for the  respondent, submitted  written  submissions  over  and  above  the  oral arguments addressed by him.  One of the contentions adverted to  by the learned counsel is pertaining to the evidence  of the  defence witness (DW-1 Moharam Ali).  Counsel  contended that  if the evidence of DW-1 Moharam Ali can be believed it is   sufficient  to  shake  the   basic  structure  of   the prosecution   evidence.   Shri  N.P.    Midha  invited   our attention  to  the following observations contained  in  the decision  of  this Court in Dudh Nath Pandey vs.   State  of Uttar  Pradesh  {1981 (2) SCC 166}:  "Defence witnesses  are entitled  to equal treatment with those of the  prosecution; and  courts ought to overcome their traditional  instinctive disbelief in defence witnesses".

   We  may quote the succeeding sentence also from the said decision  for the sake of completion of the observations  of their  Lordships  on that score.  It is this:  "Quite  often they tell lies but so do the prosecution witnesses."

   Depositions  of witnesses, whether they are examined  on the  prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall  be  without any predilection or bias.  No witness  is entitled  to  get  better treatment merely  because  he  was examined  as  a  prosecution  witness or  even  as  a  court witness.   It  is  judicial scrutiny which is  warranted  in respect  of  the  depositions  of all  witnesses  for  which different  yardsticks  cannot  be prescribed  as  for  those different categories of witnesses.

   In  this case, DW-1 Moharam Ali claimed to have gone  to the  house of the deceased on getting information about  the murders.   He  said that he found 3 dead bodies lying  there but  also saw the police beating the accused.  This evidence of  DW1, even if believed, would not affect the core of  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ prosecution  case  or  its evidence.   Nonetheless,  we  may consider his evidence from other angles.

   In  cross-examination  DW1 said that he did not  divulge what  he saw to any police officer or to any other  officer. He  further  admitted that he was affected by paralysis  and could  not  move from one place to another on his own.   The trial  court declined to place any reliance on his  evidence and  the  High  Court  also did not consider  it  worthy  of credence.  We also agree that the evidence of DW-1 could not inspire  confidence  in  judicial   mind.   Hence  the  said evidence of DW1 does not affect the prosecution case at all.

   The  trial  court rightly appreciated the  circumstances presented  by the prosecution through the evidence and found them reliable and on the basis of such circumstances reached the  conclusion that the respondent was responsible for  the murder  of his parents and brother.  We have no other option but  to interfere with the unmerited acquittal passed by the

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High  Court.   Hence  we do so and  restore  the  conviction passed  by  the trial court.  However, we do not impose  the extreme  penalty which was chosen by the trial court.  Hence the  respondent is sentenced to imprisonment for life  under Section 302 of the IPC.

   We  direct  the  Sessions   Judge,  Barabanki,  to  take necessary  steps to get the respondent back into custody  if he is not already in jail.