SHARMA, J. - (1.) FIVE persons of Elephant-rider's family were battered to death on October 27, 2006 in the historic Amer area of Pink City Jaipur. Sahib Hussain, appellant herein, was charged and tried before the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City who convicted the appellant for the offence under Section 302 IPC and having regard to the peculiar facts and circumstances of the case found it to be rarest of rare cases imposed death penalty on him.
(2.) THE learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur made a reference (bearing Death Reference No. 1/2007) under Section 366 Crpc for confirmation of death sentence. THE appellant also preferred appeals challenging his conviction and sentence as aforesaid. FACTS: The brief facts as unraveled by the prosecution at the trial are as follows:- On October 28, 2006 at 12. 30 AM, the informant Jafar @ Lotiya handed over a written report (Ex. P. 1) to the SHO Police Station Amer at the place of incident. It was inter alia stated in the report that all the riders of elephants belonging to Ballu Bhai resided in the Elephant's Than' of Ballu Bhai at Bharti Colony Kunda. The elephant riders included informant, Munua and Munna Mawali. Around 10. 30 PM while informant was passing through Kunda Highway after taking food from Shere Punjab Hotel, he saw Satish and Sahib Hussain (appellant) talking. Sahib Hussain was telling Satish that he had dispatched Seema Bhabhi to the destination and also killed Munna Mawali, who came to save her. He also told about killing of three children residing with them. Sahib Hussain, who was wearing check shirt of clay colour and blue pant proceeded to Than of Salim Durrani, Satish told informant that Sahib Hussain had a quarrel on the day of Eid festival and it continued. The informant then went towards his Than and found Munna Mawali lying in a pool of blood on the Chabutra out side his room and inside the room lying his nephew Kalu dead. In the other room Seema, Isha, son of Lalu Chacha, and Sonu, son of Munna's uncle, were lying dead in a pool of blood. The informant narrated the incident on telephone to Ballu Bhai. Soon thereafter Satish told informant that Sahib had changed his clothes and rushed towards Highway. After some time Police, Ballu Bhai and Munna arrived. Munna Mawali was removed to the Hospital but he died on the way. On that report a case under Section 302 IPC was registered and investigation commenced. Postmortem on the dead bodies was performed. Necessary memos were drawn, statement of witnesses were recorded, the accused was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City Jaipur. Charge under Section 302 IPC was framed. The appellant denied the charge and claimed trial. The prosecution in support of its case examined as many as 18 witnesses. In the explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing final submissions disposed of the case as indicated herein above. It is well settled proposition that the graver the offence, the greater should be the care taken to see that neither an innocent person is convicted nor a guilty allowed to escape. Bearing this principle in mind we straightway proceed in accordance with sections 366 and 368 Crpc to examine the entire evidence independently. SUBMISSIONS ON BEHALF OF THE APPELLANT: There is no ocular version of the incident and the prosecution entirely founded its case on circumstantial evidence. Learned counsel for the appellant vociferously canvassed before us that the circumstances relied upon by the prosecution have not been satisfactorily established and that in any event the circumstances said to establish against the appellant do not provide a complete chain to bring home the guilt against the appellant. The submission of learned counsel may be summarized thus:- (i) The whole case of the prosecution is based on the FIR Ex. P. 1, which is itself a very doubtful document. It is pertinent to mention here that neither the complainant has disclosed any mens-rea/motive for the said offence against the appellant and it is illusive on the part of the aforesaid complainant that he has based his FIR on the basis of hearsay only. The prosecution has tried to induce the factum of scuffle between the accused and his deceased sister-in-law on the festival of Eid on the question of character of deceased Seema as a motive behind murder having been committed of the deceased Seema and others, but neither it has been proved nor it can be said from any corner of view to be a sufficient reason out of which accused might have put Seema and other persons to death. Even the Investigating Officer PW. 18 Raghuraj Singh in his Court statement had denied of such evidence having been found by him during investigation and even PW. 1 Zafar has rebutted the fact of any scuffle between accused and deceased Seema. The prosecution has concluded in their charge sheet that the other deceased came to rescue of deceased Seema, hence, they were also attacked by accused, injured them and done to death. But the prosecution has never cared to investigate or to proved those circumstances as a reason of murder of other deceased. (ii) The whole prosecution story is a concocted one. It does not link the accused appellant with the crime at all. Even the investigating officer PW. 18 Raghuraj Singh has admitted in his cross examination that nothing could be found or obtained from the spot which could have connected the accused with incident. When there is a missing connecting link of the accused with the incident, it is quite unsafe to convict the accused for the alleged offence. (iii) The informant has on one hand stated that the report Ex. P. 1 was written by police at the spot. He has explained that first he has phoned to Ballu who brought the police to the spot where the report Ex. P. 1 was written by police. On the other hand he has stated that he went to Shahjahanpur thereafter with police and brought the accused to the police station Amer, where the report was lodged at the Police Station Amer. If it is so the second report which was lodged at the Police Station Amar has not been filed by the prosecution and it will be inferred that if that second report lodged at PS Amer would have been filed by the prosecution that would have been in favour of defence. Furthermore, PW. 18 Raghu Raj Singh investigating officer has disclosed in his statements that first of all he was informed of the incident by Umardeen on phone at 11. 10 PM on 27. 10. 06. In that case the information given by Umardeen had been the information first in time which might have been a FIR in Police Station, Amer. But it has not been taken as such, nor Umardeen has been examined as a witness. Thus there is absence of an FIR. Fourthly, according to Zafar he has first informed by phone to Ballu who brought police to spot but information recorded on the telephonic report of Ballu has not been filed or proved. Fifthly according to PW. 2 Ballu the report Ex. P. 1 was written at police station, Amer and not at the spot. In that case recording of FIR becomes doubtful and the prosecution has failed even to prove as to which the FIR being first in time and the case becomes based on investigation without an FIR as the original FIR. As the original FIR has been suppressed the prosecution case becomes suspicious. The prosecution has not even made it clear as to why they have not enlisted Umardeen as a prosecution witness who could have been an important witness to give first version of the case. (iv) There are so many infirmities in the prosecution story which are full of contradictions the story cannot be believed upon. As per the prosecution story the accused was handed over by police station Shahajahnpur to ASI Vikram Singh of Police Station Amer at 5. 15 AM. On 28. 10. 06 but according to the investigating officer the accused was presented before him at 9. 00 am. So the question unanswered remains that where the accused was kept by ASI Vikram Singh from 5. 15 am to 9. 00 am for four hours and it cannot be ruled out that there might have been planting of connecting evidence for concoction being bringing home to the guilt of the accused. Even Vikram Singh, ASI has not been examined to prove the circumstance of the late production of the accused to the investigating officer. There is no any confirmatory or conclusive evidence to bring home conviction to the accused. (v) There are contradictions with regard to the place where the accused has first of all disclosed about the incident to Satish. In the FIR, the informant Zafar has stated that the accused has stated about the incident at the highways after returning from dinner whereas in the Court statements PW. 1 Zafar has stated that the same was disclosed at his (Zafar) house. But PW. 4 Satish has inducted a third place, that Zafar came to his house i. e. Satish's house where the accused was also present telling about the incident and heard the same. Thereafter Zafar has come again and asked him as to what the accused was telling to him. It means there are three different places where the accused is said to have stated about the incident. The prosecution has miserably failed to establish the actual place, where the so called extra judicial confession was made and to whom made. (vi) From the statements of witnesses and evidence produced by prosecution the place where Munna Mawali was found lying injured is also ascertained. In his FIR Zafar has stated that Munna Mawali was found to have been lying on the Chabutra in front of his room. While in his Court statements he says that Munna Mawali was lying inside his room. (vii) The prosecution story about recovery of the accused is also doubtful. Informant Zafar PW. 1 has, on one hand says that when the accused was caught by police he (Zafar) did not go to Shahjahanpur with police in the night. At that time he was at Kunda at his residence whole the night. He was informed by Ballu in the next morning that the accused was caught by police at Shahjahanpur. He went to police only in the morning at 6. 00 am while on the other hand, he in the same court statements, has stated that he actually went to Shahjahanpur with the police where the accused was caught at 30 or 40 kms. Away from Jaipur. (viii) There are so many infirmities in the statements of the witnesses such as PW. 16 Murari has stated that the accused was caught by Police Station, Shahjahanpur at 2. 20 am but according to the same witness the bus in which accused was traveling was stopped at 3. 20 am and such as PW. 1 Zafar has stated that he did not tell anything about incident to Ballu, if it is so how police came at the spot with Ballu, where he is reported to have handed over the first information report Ex. P. 1 to the investigating officer. (ix) The prosecution story suffers from improbabilities such as on one hand PW. 1 Zafar said that after seeing the spot he reached to Satish after 10 or 20 minutes, then he went to phone Ballu. In such circumstances, how it could have been possible that after disclosure of the incident by accused to Satish, the police came only within 15 or 20 minutes as per statements of PW. 1 Zafar. It is quite improbable. (x) There is a clear cut concoction with regard to weapon of offence as well as its recovery. PW. 2 Ballu and PW. 17 Murari Lal have seen the weapon axe, at the place of incident at the first sight after the incident, in the night itself, when they first visited the place of occurrence, they why the investigation has committed a drama of obtaining information under Section 27 of the Evidence Act from the accused and seizure of the weapon at his instance afterwards at 3. 30 pm. On 28. 10. 2006. In presence of PW. 3, Abdul Majeed the seizure memo Ex. P. 10 is said to have been prepared, while in the cross examination the same witness says he has not seen the house of accused nor he has even gone to the house of accused from where the weapon is said to have been seized. When the IO has found the weapon of offence, then and there, at the spot at 00. 15 am it is not clear as to why he has not examined it immediately for the presence of blood stains etc. why it was not seized at the spot immediately, which evidence could have led to actual culprit. Why it was seized on the next day after 17 hours from storage of fodder and also it is not clear as to where the weapon remained for such a longer period and who brought the weapon to the storage. The place from where the axe is said to have been recovered is stated to be an open place to the access of anybody and no body was stopped from going there, hence, it can not be said that the recovered axe was the same weapon which was used for crime. It could have been planted by anybody else. This makes the prosecution story quite false as regards the weapon which was used, its recovery and presence of any stains etc. and does not link the weapon or clothes with the crime or with accused. (xi) Recovery of chappals of the accused alleged to have made in the police station Amer also does not repose confidence in prosecution story. It is stated that the chappals were seized from the possession of accused at 10. 30 am. On the next day while he was arrested at Police Station, Amer after 12 hours of the incident. First of all it is improbable in the circumstances that the accused would change the dress but would not change his chappals. Second it is impossible that even after traveling 80 km on foot, in bus and Police Jeeps and remaining in Jails at Shahjahanpur Police Station and at Amer Police Station, blood stains would remain over and below the chappals. The accused remain with police station Shahajahnpur from 2. 20 am to 5. 15 am on 28. 10. 06 and it is not clear, why the chappals of accused were not seized by Police, Station Amar immediately at 5. 15 am if there were blood stains on chappals of accused. When there were no bloodstains on chappals at police station Shahjahanpur at about 3. 20 am how could police station Amer found the same in the above circumstances at 10. 30 am on next day. Certainly, it was a planted, plotted and concocted evidence on behalf of prosecution as was in case of axe, which was planted in fodder storage. Even if found blood stained, such sort of evidence cannot link the accused with the crime. (xii) There are infirmities with regard to the hearing by Zafar of the disclosure statement made by accused to Satish. PW. 1 Zafar says in the FIR that he has overheard disclosing accused the incident to Satish at the highways whereas PW. 4 Satish says that as soon as Zafar came to his house, accused went to his room and set to highways after changing his clothes and afterwards Zafar asked him what was said by the accused to him it means the prosecution story is doubtful about hearing of statements by Zafar. Had the informant overheard the matter at the highways why he would gone to Satish's house and asked him what the accused said to him. Hence the story about extra judicial confession by accused to Satish or heard by Zafar becomes unreliable. (xiii) The prosecution has miserably failed to prove beyond reasonable doubt that the accused has caused intentional death or causing death of anybody with knowledge and in absence of any evidence as regards motive for committing murder, it is quite unsafe to convict the appellant as above and punish him as such. The circumstantial evidence produced by prosecution does not suggest deliberate or intentional act of committing murder or even culpable homicide. (xiv) This case is said to have been based on the extra judicial confession made by accused to Satish PW. 4 and the so called confession has been overheard by Zafar informant. Such as evidence, if believed, is a week type of evidence. Accused had no reason to go to PW. 4 Satish and to confess guilt by reposing confidence in him. The learned trial Court before relying upon the so called extra judicial confession, has erred in not satisfying itself that there was no existence of strong corroborative circumstances nor any of such circumstances which necessitated the accused to disclose to Satish the facts of having committed the crime and that it would have been voluntary. The learned trial Court was legally required to see the probability as to whether the accused was in a position to make such statements and to look into the circumstances to find out whether such confession was not inspired by any improper or collateral consideration of circumvention of law, suggesting it may not be true. As a matter of caution the Court must have required some material corroboration to an extra judicial statement. If that other piece of evidence is reliable, it can be safely acted upon. The facts and circumstances of this case do not suggest that the so called confession could have been possible or true. There is no reason as to why the accused would make an extra judicial confession to Satish. Satish PW. 4 was not related nor has affinity with the accused in any manner nor he was a person in authority or could render assistance to him. Hence his testimony is not believable. At the most if the accused felt it to disclose the incident, then he would have disclosed the same, its circumstances and reasons to his elder brother Munna but the prosecution has not cared to, nor thought it proper to examine Munna as a witness whose testimony would have been important being husband of deceased Seema and might have been proper in finding circumstances in which the incident took place. Therefore suppression of material evidence by prosecution makes the case more doubtful and the prosecution has not at all established evidence of extra judicial confession. Hence no reliance can be placed on whole of prosecution evidence. The learned trial court has erred in not considering above aspect of the case. (xv) There are so many discrepancies in the prosecution story which may confer as a benefit in favour of the present appellant as per scheduled principles of criminal jurisprudence as settled by Hon'ble Apex Court and this Court also. (xvi) The place of incident is said to have been surrounded by many households as per investigating officer PW. 16 Raghu Raj Singh. Under the circumstances it was quite improbable that no hue and cry has been made by anybody in the neighbouring and the prosecution has not enlisted nor examined any neighbouring witness, when it was a peak time of presence of neighbouring witnesses. The learned trial Court has seriously erred in not considering the circumstance and convicting the accused appellant despite no sufficient evidence or withholding of material evidence. (xvii) In the present circumstances of recovery of weapon axe and clothes and chappals etc. as discussed above, FSL reports and DNA report dated 8. 10. 07 do not repose confidence in the prosecution and cannot become a basis for conviction of accused. The recoveries failed to connect the so called samples, shown to have been collected from the articles of accused and got thereafter examined. Merely because of finding biological fluid of mix-origin on the weapon cannot connect the accused with the crime in the circumstances that the weapon was not seized from the spot even if found there just after incident and later on, it is planting cannot be ruled out. The present appellant has every right to get benefit of doubt on that score. (xviii) The learned trial Court has erred in not considering the facts and circumstances of the present case which are factually in favour of the appellant and has erroneously recorded conviction of the appellant on the basis of meager circumstantial evidence which could not be said to be in accordance with law. A suspicion however strong cannot take place of evidence. (xix) The findings arrived at by learned trial Court are vitiated as being based on misleading, mis-reading and non- considering of material evidence which is in support of the appellant as well as the finding is based on conjectures and surmises. When the entire falsehood cannot be separated from truth in such a case conviction is unsafe to be recorded. STANDARD OF PROOF : The standard of proof required to convict a person on circumstantial evidence is now well established by a series of decision of the Apex Court. According to the standard the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
(3.) KEEPING these principles in mind we shall now examine the various circumstances said to be appearing against the appellant and at the same time consider the contentions advances by the learned counsel for the appellant referred to above. HOMICIDAL DEATH: Death of Seema, Munna Mawali, Kalu, Isha and Sonu was undeniably homicidal in nature. As per post mortem report (Ex. P. 48) following ante mortem injuries were found on the dead body of Seems- (1) Incised would starting from left orbit, going down to mandible and then turning towards mouth, involving lower lip and reaching in right side of mouth. It is 3 cm. Wide and 5 cm. deep damaging left eye, it orbit left cheek, muscles of lt. Cheek, lower lip, lower jaw. Teeth of lower jaw part of upper jaw, some part of chin. Total length 20 cm. (2) Incised wound 7 cm. x 4 cm. 5 cm. On neck below lateral side of Rt. Side cutting Rt. Carotid artery and its jugular vein. In the opinion of medical board the cause of death was hemorrhagic shock caused by extensive injuries to face and neck. As per Postmortem report of Munna Mawali (Ex. P. 47) following injuries were antermortem:- (1) Incised wound clotted blow 5 cm. 2 cm. x muscle deep on chin. (2) Incised wound with clotted blood 7 cm. x 2 cm. x bone deep left temporal region. (3) Incised wound on right cheek 10 cm. x 3 cm. x 5 cm. Bone deep. Entering right mandible and zygomatic bone (from corner of Rt. Eye to lobule of Rt. ear (4) Swelling of right upper arm and humerus. (5) Abrasion and clotted blood 2 cm. x 2 cm. Right upper arm. (6) Incised wound 4 cm. x 1 cm. x muscle deep - Right shoulder. (7) Incised wound 5 cm. x 2 cm. x muscle deep on left forearm from lat. side with clotted blood. In the opinion of medical board the cause of death was hemorrhagic shock caused by multiple injuries. As per Postmortem report of deceased Isha (Ex. P. 46) following injuries were found- (1) Incised- transverse wound 10 cm. x 3 cm. /2 cm. On neck on right side left from angle of mandible to post. Mid line of neck. Clotted blood present. (2) Incised wound 6 cm. x 2 cm. x 3cm. Situated 2 cm. Below wound No. 1 cutting trachea and major blood vessels (carotid ). Starting from mid line of neck front to post. Upto angle of mandible. Clotted blood present. (3) Incised would with clotted blood 6 cm. x 2 cm. x 3 cm. On right clavicular region. Upper and starts from neck reaching to shoulder. (4) Incised wound 7 cm. x 3 cm. x 2 cm. On left side of cheek. Clotted blood present. (5) Swelling present in right forearm upper 1/3rd closed fracture. In the opinion of medical board the cause of death was multiple injuries leading to severe hemorrhage leading to hemorrhagic shock. As per postmortem report of Kalu (Ex. P. 45) following antermortem injuries were found- (1) Incised wound with clotted blood 6 cm x 4 cm x brain deep fracturing right occipital bone and cutting muscle and reaching and cutting part of brain. (2) Incised wound clotted blood 4 cm x 1 cm x 3 cm 1 cm below injury No. 1. (3) Incised wound 3 cm x 1 cm x 1 cm across the right ear, cutting pinna of right ear clotted blood. (4) Incised wound with clotted blood 5 cm x 2 cm x bone deep causing fracture of radius & ulna in middle of forearm of left side. (5) Incised wound with clotted blood 1-1/2 cm x 1/2 cm x 1/2 cm on first finger of right hand. (6) Incised wound with 1-1/2 cm x 1cm x 1/2 cm on base of thumb of Rt. hand. In the opinion of medical board the cause of death was injury to brain and hemorrhagic shock caused by multiple injuries. As per postmortem report of Sonu (Ex. P. 49) following antermortem injuries were found:- (1) Incised wound with clotted blood 4 cm x 3 cm x 3 cm on right side of neck. (2) Verticle Incised wound with clotted blood in right occipital region 5 cm x 3 cm x 4cm cutting right occipital bone membranes of brain part of brain underneath. (3) Incised wound in left fronto parietal region 10 cm x 3 cm afore mentioned deep. In thie opinion of medical board the cause of death was injury to brain and hemorrhagic shock as a result multiple injuries. PRESENCE OF APPELLANT NEAR ABOUT THE PLACE OF OCCURRENCE: Jafar (PW. 1) in his deposition stated that he used to reside with Ballu Bhai in Bharti Colony Kunda, Amer. Ballu Bhai had many elephants and he used to drive one of the elephants as elephant rider Munna and Munna Mawali were also elephant riders. Around 10. 30 PM while he was going to his home to sleep he had seen appellant talking with Satish. When he reached to his house he saw Munna Mawali lying out side his room in a pool of blood. Inside the rooms Seema and children were lying dead. Satish (PW. 4) corroborated the testimony of Jafar and deposed that he used to drive the elephant of Munna Bhai as elephant rider and resided in the house of Munna Bhai. Rehmet Ali and the appellant also resided in that house. Seema, Bhabhi of appellant, resided at some distance in the house of Ballu Bhai. At about 10. 30 PM appellant came to him (Satish) and had a talk about the incident. We see no reason to disbelieve the evidence of these witnesses. The prosecution is thus able to establish that the appellant was present near about the place where the incident occurred. EXTRA JUDICIAL CONFESSION: ;