Krishna Pal vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 7.2.2003 passed by Additional Sessions Judge (Fast Track Court) No. 16, Bulandshahr in S.T. No. 130 of 2001 convicting Appellant Krishna Pal u/s 302, I.P.C. and sentencing him to death.

The prosecution story briefly stated was as under:

Appellant Krishna Pal was residing with his Mausa (mother''s sister''s husband) Bhim Singh at his house situate in Janlok Avas Vikas Colony, Police Station Kotwali City, district Bulandshahr. Smt. Jag Roshni deceased was wife of Bhim Singh, while Raju and Ravi deceased were sons of Bhim Singh. Km. Sapna was daughter of Bhim Singh. Shyam Singh (P.W. 4) was real brother of Bhim Singh deceased.

On the morning of 15.10.2000 Appellant Krishna Pal lodged a report at Police Station Kotwali City against Tula Ram, Shyam Singh (P.W.4), Satpal Yadav and two unknown persons with the allegations that on the night of 14.10.2000 he was present in the house of his Mausa Bhim Singh. His Mausi Smt. Jag Roshni and her two sons Raju and Ravi and daughter Sapna were also present in the house. At about 9.30 p.m., two boys who were known to Ravi came to the house of Bhim Singh. Ravi asked Km. Sapna to prepare tea for them. Km. Sapna prepared tea and served them. The other family members were enjoying television. The Appellant prepared bed for the above two boys. At about 2.00 a.m. the above two boys opened the door and called Tula Ram, Shyam Singh and Satpal Yadav, who was relative of Tula Ram, inside the house. The above five persons were having Balkati and Gandasa. They started inflicting Balkati and Gandasa blows on Bhim Singh, Smt. Jag Roshni, Raju and Ravi. The Appellant was observing the incident from the window of his room but he could not raise any voice due to fear. Tula Ram and Shyam Singh had enmity with Bhim Singh on account of landed property, regarding which a litigation was going on. In the morning when the people of Mohalla assembled the Appellant came out of the room and saw that his Mausa, Mausi and two cousin brothers Raju and Ravi were lying dead. Their dead bodies were having cut wounds, and Km. Sapna was lying unconscious in her room.

On the basis of above report Head Constable Ramesh Chandra prepared chick report Ext. Ka-43, made an endorsement of the same at G.D. report Ext. Ka-44 and registered a case against Tula Ram, Shyam Singh, Stapal Yadav and two unknown persons, under Sections 147, 148, 149, 302 and 34, I.P.C.

Investigation of the case was taken up by Sri M. P. Singh, Investigating Officer (P.W. 7). He reached the spot and collected blood stained and simple earth from the places where the dead bodies of the deceased were lying. He also found some drops of blood in the room of the Appellant and took it into possession vide recovery memo Ext. Ka-13. The blood stained Balkati was lying near the dead body of Smt. Jag Roshni. The Investigating Officer took the same into possession and thereafter inspected the place of occurrence and prepared site plan Ext. Ka-14. Appellant Krishna Pal was present on the spot. The Investigating Officer enquired from him about the presence of drops of blood in his room, but he could not give any satisfactory explanation as to how the blood came into his room. The Investigating Officer got inquest of the dead bodies conducted through Sub-Inspector, Ram Lal, who prepared inquest report and sent the dead bodies of deceased for post-mortem. Thereafter the Investigating Officer interrogated other witnesses.

Autopsy on the dead body of Bhim Singh and Smt. Jag Roshni was conducted on 15.10.2000 by Dr. Sarvodaya Kumar (P.W. 2) who found the following ante-mortem injuries on the dead bodies.

Post Mortem Report of Bhim Singh:

Ante Mortem Injuries:

(1) Incised wound 14 cm. x 8 cm. x vertebra deep, 1 cm. above the hyoid cartilage, on the outer aspect of neck.

(2) Incised wound 12 cm. x 3 cm. x cavity deep 2 cm. below the Lt. clavicle, on the left side of chest, obliquely placed.

(3) Incised wound 9 cm. x 3 cm. x bone deep, on the Rt. side of face, transversely, just lateral to the Rt. angle of mouth.

(4) Incised wound 7 cm. x 2 cm. x bone deep, 1.5 cm. above to the Injury No. 3.

(5) Incised wound 3 cm. x 1 cm. x bone deep, on the outer aspect of left middle finger over the proximal intra phalangeal joint.

(6) Incised wound triangular shaped, 12 cm. x 8 cm. x muscle deep, 11 cm. above the Lt. wrist joint, on the anterior medial aspect of left forearm.

(7) Incised wound 10 cm. x 2 cm. x muscle deep, 3 cm. below the Rt. elbow, on the posterior aspect of Rt. forearm.

(8) Incised wound 6 cm. x 3 cm. x muscle deep, 14 cm. above the Rt. elbow, on the posterior aspect of Rt. upper arm.

(9) Incised wound 4 cm. x 2 cm. x muscle deep, 8 cm. above the Rt. wrist joint on the posterior aspect of Rt. forearm.

(10) Incised wound 6 cm. x 3 cm. x bone deep, anterior aspect of Rt. wrist joint.

Internal examination showed that pleura was cut on left side under injury. Larynx, trachea and bronchi were cut under injury. Left lung was cut under the injury. Large vessels cut under the injury. Chest cavity was full of blood. Cause of death was shock and hemorrhage due to ante-mortem injuries.

Post Mortem Report of Smt. Jag Roshni:

Ante Mortem Injuries:

(1) Incised wound 12 cm. x 4 cm. x muscle deep 18 cm. above sacral prominence at the mid line of back.

(2) Incised wound 2 cm. x 0.5 cm. x cavity deep, 5 cm. below the mid of left shoulder along the medial border of left scapula.

(3) Incised wound 11 cm. x 6 cm. x bone deep, just on the posterior aspect of (Lt.) clevicle.

(4) Incised wound 14 cm. x 4 cm. x vertebra deep, on the root of neck, at the anterior lateral (left) aspect of neck.

Internal examination showed that pleura was cut under the injury. Left lung, large vessels and trachea were cut under the injury. Left side of lung cavity was full of blood. Cause of death was shock and hemorrhage due to ante-mortem injuries.

Autopsy on the dead bodies of Raju and Ravi were conducted by Dr. Anand Prakash on 15.10.2000 who found the following ante-mortem and internal injuries on their person:

Post Mortem Report of Raju (aged about 28 years)

Ante Mortem Injuries:

(1) Incised wound 11 cm. x 2 cm. x bone deep on left side of face.

(2) Incised wound 9 cm. x 1-1/2 cm. x bone deep on left side of face, near the left ear.

(3) Incised wound 5 cm. x 1-1/2 cm. x muscle deep on left side of neck.

(4) Incised wound 4 cm. x 1-1/2 cm. x bone deep on left side of head.

(5) Incised wound 8 cm. x 3.5 cm. x bone deep on left side of head.

(6) Incised wound 3 cm. x 2 cm. x bone deep on left upper lip.

(7) Incised wound 5 cm. x 3 cm. x bone deep on Rt. side fore head just above Rt. eye.

(8) Incised wound 5 cm. x 3 cm. x bone deep on part of Rt. shoulder.

(9) Incised wound 2 cm. x 1 cm. x muscle deep on upper part of left side chest.

(10) Incised wound 5 cm. x 3 cm. x muscle deep on top of left shoulder.

(11) Incised wound 4 cm. x 1.5 cm. x muscle deep on back of left shoulder.

(12) Incised wound 5 cm. x 1/2 cm. x bone deep on top of head.

(13) Incised wound 6 cm. x 1/2 cm. x bone deep on back of head.

Internal examination showed that left side frontal, parietal and occipital bones were cut under the injury. Cause of death was shock and hemorrhage due to ante-mortem injuries.

Post Mortem Report of Ravi (aged about 25 years)

Ante Mortem Injuries:

(1) Incised wound 13 cm. x 4 cm. x bone deep on left side neck. Trachea, larynx, oesophagus, big vessels found cut.

(2) Incised wound 2 cm. x 1/2 cm. x bone deep on Rt. index finger.

Internal examination showed that cervical vertebra 3 and 4 (C-3 and C-4) and spinal cord were cut under the injury. Cause of death was due to shock and hemorrhage due to ante-mortem injuries.

On 16.10.2000 the Investigating Officer interrogated Tula Ram and others on 18.10.2000 the Investigating Officer again interrogated the Appellant, who confessed his guilt and got recovered two diaries from his room. It is alleged that he also admitted illicit connection with Km. Sapna. The Investigating Officer interrogated Prem Prakash, Hemant and Ved Prakash before whom the Appellant had confessed his guilt. On 19.10.2000 the Investigating Officer interrogated Km. Sapna. The name of Suraj also came into light during investigation but he could not be arrested. On completion of investigation the Investigating Officer submitted charge-sheet against Appellant and Suraj as absconder.

Cognizance of the case was taken by the Magistrate who committed the case to the Court of Session.

Appellant was charged with the offence punishable u/s 302, I.P.C. He pleaded not guilty and contended that in the morning when he woke up and opened the door of his room he saw some persons and police standing in front of his room. The police took him to the police station, where he came to know that the murders were committed in the house of his Mausa. He got rescued and tried to run away but was apprehended by the crowd. He was taken to the house of Veer Pal and was told that Bhim Singh, Smt. Jag Roshni, Raju and Ravi were murdered. The police again took him to Kotwali and asked him to write a report. He gave a written report. He was beaten and tortured by the police. His report was also changed and the police falsely implicated him in the case.

The prosecution in support of its case examined Veer Pal (P.W. 1), Dr. Sarvodaya Kumar (P.W. 2), Dr. Anand Prakash (P.W. 3), Shyam Singh (P.W. 4), Prem Singh (P.W. 5), Satya Prakash (P.W. 6) and M. P. Singh, Investigating Officer P.W. 7. The Appellant did not adduce any evidence.

Learned Session Judge on considering the evidence of the prosecution held that though there was no direct evidence against the Appellant but circumstantial evidence taken together established the guilt of the Appellant. He further held that the murder of four innocent persons who were close relatives of the Appellant, was committed by him in a pre-planned and brutal manner and, therefore, the case comes under the category of rarest of rare case. With these findings he convicted the Appellant u/s 302, I.P.C. and sentenced him to death.

Aggrieved with the above conviction and sentence the Appellant preferred this appeal. Learned Sessions Judge also sent reference for confirmation of death sentence.

We have heard Sri P. N. Misra, learned Counsel for the Appellant and Sri Ravindra Singh, learned A.G.A. for the Respondent and perused the entire evidence on record.

In this case there is no direct evidence. The case is based on the circumstantial evidence. It is settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person see Hukam Singh Vs. State of Rajasthan, ; Eradu and Others Vs. State of Hyderabad, ; Earabhadrappa v. State of Karnataka AIR 1963 SC 446; State of U.P. Vs. Sukhbasi and Others, ; Balwinder Singh alias Dalbir Singh Vs. State of Punjab, ; Ashok Kumar Chatterjee Vs. State of M.P., . In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends on the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

Further the Apex Court in the case of C. Chenga Reddy and Others Vs. State of Andhra Pradesh, , observed as below:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , it was laid down that when case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused ;

(3) the circumstances, 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

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In State of U.P. Vs. Ashok Kumar Srivastava, the Apex Court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

Before discussing the circumstantial evidence relied on by the prosecution we would like to give the gist of evidence adduced by the prosecution.

Veer Pal Singh (P.W. 1) is the witness of recovery of blood stained Balkati found near the charpai of Smt. Jag Roshni deceased and blood stained pharsa near the charpai of Bhim Singh deceased, as well as blood stained beddings of the charpai of Ravi deceased and stated that on the morning of 15.10.2000, the Investigating Officer recovered the above things in his presence and prepared recovery memo. Dr. Sarvodaya Kumar (P.W. 2) had conducted autopsy on the dead bodies of Bhim Singh and Smt. Jag Roshni, the details of which is given by us in narration of facts. Dr. Anand Prakash (P.W. 3) conducted autopsy on the dead bodies of Raju and Ravi, deceased, the details of which has been given by us in the narration of facts.

Shyam Singh (P.W. 4) stated that he was brother of Bhim Singh deceased and was also knowing the Appellant Krishna Pal, who was son of Bhim Singh''s wife''s sister. He further stated that Km. Sapna was his niece and daughter of Bhim Singh. There was illicit connection between Sapna and Appellant Krishna Pal, which was told to him by Bhim Singh. Before one month of the occurrence a quarrel had taken place between Bhim Singh and Krisina Pal regarding above illicit connections and Bhim Singh has turned out Krishna Pal from his house and thereafter on the request of Krishna Pal he again started living with Bhim Singh. He further stated that on 15.10.2000 he got information that his brother and his family members were murdered. He along with his family came to Bulandshahr and came to know that named report has been lodged against him that Krishna Pal made confession before him that he along with Suraj and one another person firstly killed Bhim Singh, thereafter Ravi, Smt. Jag Roshni and Raju with Balkati and pharsa. Prem son of Tilak Raj was also present at the time of above confession. He (Appellant) also told about his illicit connection with Km. Sapna. Prem son of Tilak Ram (P.W. 5) stated that on getting information about murder of Bhim Singh he came to Bulandshahr along with Shyam Singh. Thereafter, he went to hospital. In the hospital Krishna Pal met him. Km. Sapna was lying unconscious in the hospital. Kishna Pal told that 3-4 persons came at the house of his Mausa. He served them tea. Thereafter they became unconscious and brought to hospital. Krishna Pal had not told to him any thing about the occurrence. After performing last ceremony of deceased he went to his house. In the hospital Shyam Singh and his wife were also present. Km. Sapna was lying unconscious.

Satya Prakash (P.W. 6) stated that on getting information about the murder of Bhim Singh and his family members he along with Shyam Singh came to Bulandshahr. Shyam Singh had come there earlier. He came to know that police had recovered some diaries from the house of Bhim Singh and a paper was prepared, which he signed.

S. P. Singh (P.W. 7) the then Inspector Incharge Police Station Kotwali City is the Investigating Officer, who recovered the blood stained and simple earth from the place of dead bodies, blood stained Balkati and pharsa near the dead bodies inspected the place of occurrence and got conducted inquest and interrogated the witnesses as well as Appellant. He further stated that he had seen some drops of blood in the room in which the Appellant Krishna Pal was sleeping in the night of occurrence and had taken into possession the blood stained and simple earth and got prepared its recovery memo through Sub-Inspector Hasin Haider Zaidi.

This was the gist of the evidence adduced by the prosecution.

The prosecution had relied on the following circumstances against the Appellant.

(1) The Appellant was Bhim Singh''s wife''s sister''s son and was residing with him in the same house.

(2) The Appellant had illicit connection with Km. Sapna daughter of Bhim Singh.

(3) On the night of occurrence the Appellant was present in a room of the same house in which the murder took place.

(4) Drops of blood were found in the room of the Appellant.

(5) Two diaries were recovered from the room of the Appellant.

(6) The Appellant made extra-judicial confession before Shyam Singh (P.W. 4).

(7) Appellant lodged false report at the police station against Shyam Singh and others.

(8) Subsequent conduct of the Appellant.

We would like to discuss the above circumstances and their evidentiary value in seriatum.

Circumstance No. 1:

It is not disputed that the Appellant was son of Bhim Singh''s wife''s sister and was residing with him but this circumstance alone does not implicate him in the murder of four persons.

Circumstance Nos. 2 and 5:

On the alleged illicit connection of the Appellant with Km. Sapna daughter of Bhim Singh there is sole testimony of Shyam Singh (P.W.4) against whom the Appellant had initially lodged report. Shyam Singh (P.W.4) stated that Bhim Singh had told about the illicit connection of Appellant with Sapna and a quarrel had also taken place between Bhim Singh and Appellant a month before the occurrence and Bhim Singh had turned him out of his house, but thereafter on the request of Appellant Bhim Singh again permitted him to live with him. In his cross-examination he admitted that he had not seen any thing about the above illicit connection. His evidence shows that he had no personal knowledge about the alleged illicit connection of Appellant with Sapna. Shyam Singh (P.W.4) further stated that Sapna might be residing at the house of her maternal uncle but he did not try to ascertain as to where she was living. Admittedly Km. Sapna survived and was alive but she was not examined. No other witness was examined on this point, nor there is any other circumstance to show the illicit connection of Appellant with Km. Sapna. The sole witness Shyam Singh (P.W.4) on this point has a ground to depose falsely against the Appellant, because the Appellant has lodged named report against him on the morning of 15.10.2000 at 9.05 a.m. before the arrival of the witness at Bulandshahr. In these circumstances his sole testimony on this circumstance is not worthy of credence.

The learned Sessions Judge inferred from the recovery of two diaries from the room of the Appellant and observed that romantic Sayaries (poems) were written by the Appellant in the diaries and this shows he had illicit connection with Km. Sapna. We have seen the contents of the diary and there is nothing in it to indicate that the Appellant had any sort of illicit connection with Km. Sapna. Thus, there is no evidence to prove the above circumstances regarding alleged illicit connection of Appellant with Km. Sapna and no other motive has been alleged by the prosecution.

Circumstance No. 3:

It is not disputed that in the night of occurrence the Appellant was present in a room of the house of Bhim Singh. According to the site plan Ext. Ka-14 the four deceased were murdered in other rooms and the room in which the Appellant was residing was Room No. 3, besides the kitchen. But the presence of Appellant in his room by itself cannot connect the accused with the crime in question. The Apex Court held in the case of Mulak Raj v. State of Haryana 1996 (1) AWC 575 (SC): 1996 SC C 376, that merely because the deceased who was staying with the accused had died homicidal death in their household and her dead body was found in the kitchen with post-mortem burns, it cannot be said that the said circumstance by itself would connect all the accused or any one of them with the crime.

The learned A.G.A. relying on the observation of Apex Court in the decision of Ram Kumar Madhusudan Pathak Vs. State of Gujarat, , contended that the presence of accused in the same house and doing nothing indicated that he was involved in the crime. But the facts of the said case are clearly distinguishable. In the said case the room where the death occurred and top floor was in the occupation of the accused husband and deceased wife. There was no scope for outsider to come to the said floor. There was no mark of physical violence on the person of the deceased, which is likely in the case of encounter with intruder. In the said case the Appellant also came out with a false version that his wife was lying unconscious. In this case the four deceased were murdered in different rooms and not in the room occupied by the Appellant. There was every scope of coming outsider in the rooms in which the murder took place. As such this circumstance also does not connect the Appellant with the crime in question.

Circumstance No. 4:

On this circumstance there is evidence of Shri S. P. Singh, Investigating Officer (P.W. 7) who stated that some drops of blood were lying in the room in which Appellant Krishna Pal was sleeping in the night of occurrence. The blood drops were soaked in the earth. The blood stained and simple earth were taken into possession. He further stated that he enquired from the Appellant about presence of drops of blood in his room but he could not give any satisfactory explanation. The recovery memo Ext. Ka-13 shows that the blood stained earth was scrapped by Sub-Inspector Hasin Haider Zaidi, but he was not examined. Assuming for the sake of argument that the blood stained earth was recovered in presence of Sri S. P. Singh, Investigating Officer (P.W. 7) his evidence regarding recovery is direct evidence of this fact, admittedly the blood stained earth was not sent to Chemical Examiner for analysis and report to ascertain and prove that it was human blood. Sri S. P. Singh at one place stated that the blood stained earth recovered from the room of the Appellant was not sent to Chemical Examiner, but subsequently he stated that he had no knowledge whether it was sent or not, but there is no mention regarding it in the case diary. There is no report of Chemical Examiner and it is clear that the above blood stained earth was not sent for analysis. As held by Apex Court in the case of Lakshmi Singh v. State of Bihar 1976 ACC 372. The omission on the part of prosecution to send the blood stained earth to Chemical Examiner is fatal. It was further held by the Apex Court in the case of State of Rajasthan Vs. Raja Ram, , as below:

Coming to the blood stains on the cloth which were allegedly seized on being pointed out by the accused, the Forensic Laboratory report indicated that there were blots of human blood on the shirts and trousers of the accused. There was no effect to find out the blood group, in fact the High Court noted this position and observed that the presence of P.W. 4 at the time of recovery is doubtful as he has been found to be an unreliable witness. It was observed that even if it is accepted that there was existence of blood this circumstance is not such from which it can be found that the accused was preparatory of the crime. In the aforesaid report it was clearly stated that the blood group of blood found on the clothes could not be determined. In that background, the High Court held that the possibility of the blood being that of the accused cannot be ruled out.

In the instant case there is no report of Chemical Examiner that the blood recovered from the room of the Appellant was human blood and of the group of either of the deceased. It is also clear that no blood was found on the clothes on the person of Appellant. The drops of blood in the room of Appellant may come in other circumstances and unless it is established that it was human blood and of the group of any of the deceased. This circumstance does not connect the Appellant with the crime in question.

Circumstance No. 6:

On this point there is sole testimony of Shyam Singh (P.W.4). Regarding admissibility of extra-judicial confession, the Apex Court has held in the case of State of Rajasthan Vs. Raja Ram, , as below:

An extra-judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by the Court. The confession will have to be proved like any other fact. The value of evidence as to confession like any other evidence, depends upon veracity of the witness to whom it has been made. The value of evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is weak type of evidence. It would depend on the nature of the circumstance, the time when the confession was made and the credibility of the witness who speak to such confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about confession comes from the mouth of witness who appeared to be unbiased not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is perpetrator of the crime and nothing is omitted by the witness, which may militate against it. After subjecting the evidence of witness to a rigor of the test on the touchstone of credibility the extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility.

Considering the evidence of Shyam Singh (P.W.4) on the above touchstone we find that the witness had motive to falsely attribute an untruthful statement to the accused because the Appellant/accused had lodged a named report against the witness and he had to get rid of the liability alleged in the report lodged by the Appellant. Moreover, if the Appellant has lodged a report against the witness, he would be the last person to prefer to make extra-judicial confession before him. Furthermore Shyam Singh (P.W.4) admitted that the Appellant made extra-judicial confession before him in presence of Prem son of Tilak Ram (P.W. 5). But Prem (P.W. 5) has stated that the Appellant had not told anything in his presence regarding the crime. Therefore, the evidence of Shyam Singh (P.W.4) is totally contradicted by Prem (P.W. 5). Shyam Singh (P.W.4) has not given the place where the Appellant made confession and actual words used by the Appellant while making extra-judicial confession and, therefore, he concealed the circumstances and the manner in which confession was made. In the case of State of Haryana v. Rajendra Singh 1996 SCC (Crl) 534, the accused allegedly made extra-judicial confession before his father in law, the father of the deceased. The High Court disbelieved the making of extra-judicial confession because the same has been allegedly made even to the father of the deceased and that too in presence of two co-villagers. In this way testing the credibility of Shyam Singh (P.W.4) we find that he is the most unreliable witness on the point of extra-judicial confession. Therefore, the alleged extra-judicial confession cannot be relied on against the Appellant.

Circumstance No. 7:

On the falsity of report there is sole evidence of Sri S. P. Singh, Investigating Officer (P.W. 7). The learned Sessions Judge has observed that during investigation the facts mentioned in the F.I.R. were found false, but the Investigating Officer who investigated the case had not stated any thing about falsity of the facts mentioned in the report. The learned Sessions Judge has placed reliance on the case diary prepared by the Investigating Officer which has not been proved and cannot be relied on. The witnesses who were allegedly interrogated regarding facts mentioned in the F.I.R. were also not produced before the Court. The facts mentioned in the case diary cannot be taken as substantive evidence and it can only be used for the purpose of refreshing the memory of the witness who prepared it and for the purpose of contradiction u/s 145, Evidence Act. The fact mentioned in the case diary are not substantive evidence and no reliance can be placed on it.

Circumstance No. 8:

Learned A.G.A. contended that according to the F.I.R. version the Appellant had seen the assailants committing murder of four deceased but he did nothing and not even raised a cry to seek the help of the neighbours and after the occurrence he slept and was awoken by the villagers as about 9.00 a.m. and therefore, his subsequent conduct shows that he had knowledge of the crime but could not offer any sufficient explanation for his silence and this provides a missing link against the Appellant. True, the subsequent conduct of the accused and inaction may be a circumstance. It is also true that the Appellant did not raise any alarm either during commission of crime or after fleeing of the assailants. But different persons react differently in a given circumstance. Some are stunned become speechless and rooted to the spot some become historic and waiting. Some start shouting for help, others run away to keep themselves as far removed from the spot as possible, yet others rush to the rescue of the victim, even going to the extent of counter attacking to the assailants. Every one reacts in his own special way. There is no set rule of natural reaction (vide Rana Partap and Others Vs. State of Haryana, ).

In this way if the Appellant became stunned observing the murder of four persons in a ghastly manner and did not disclose the fact to the villagers out of fear and nervousness, it cannot be said an improbable conduct of the Appellant as he had every fear of his own life and instinct of self-preservation would have been more prevalent.

It is also clear that Km. Sapna was alive and was in the room where murders were committed. She was also shocked and was admitted to hospital. In all probabilities she would have seen the assailants but the prosecution did not examine her for the reasons best known to it and it amounts to withholding of a material witness so that nothing may come in favour of the Appellant. Therefore, the above circumstance can also not be relied upon against the Appellant.

The trial Judge has given much weight to the contents of the F.I.R. and written statement of the Appellant and by picking out certain contradiction held that the Appellant had given different version at different stages and, therefore, the case is proved against him. But the learned Sessions Judge was totally wrong in his above approach as the accused is not expected to prove the case against him. It is for the prosecution to establish the case against the Appellant beyond all reasonable doubt and if it is so proved then the defence version can be considered. Therefore, the approach of the learned Sessions Judge was totally wrong and his findings are based on guess, surmises and imagination. It is true that a person may suspect the liability of the Appellant but the suspicion, howsoever, strong it may be, cannot take place of proof. The law requires evidence which is utterly lacking in this case.

Before parting with this judgment we are constrained to remark that the investigation of the case was highly shaky, tainted and was done in a mechanical manner without ascertaining the truth. The Investigating Officer appears to have solely relied on Shyam Singh (P.W. 4) against whom the Appellant had lodged a named report and did not care to investigate the case fairly and hushed up a heinous crime by throwing liability on the Appellant.

In view of our above discussions and observations we find that the circumstances relied on by the prosecution are incapable of inference of hypothesis of guilt of Appellant and there is no complete chain of circumstances to lead the one and the only inference that the Appellant committed the crime. Therefore, the conviction and sentence of Appellant cannot be sustained.

The appeal is accordingly allowed. Reference sent by the Sessions Judge is rejected. The conviction and sentence of Appellant u/s 302, I.P.C. are set aside and the Appellant is acquitted of the said offence. The Appellant is in jail. He shall be released forthwith unless wanted to be detained in connection with some other case.