2025 INSC 164
SUPREME COURT OF INDIA
(HON’BLE
VIKRAM NATH, J. AND HON’BLE SANJAY KAROL, JJ.)
GAMBHIR SINGH
Petitioner
VERSUS
STATE OF UTTAR PRADESH
Respondent
Criminal
Appeal No(S). 850-851 OF 2019-Decided on 28-01-2025
Criminal,
Murder
Penal Code, 1860,
Section 302 – Murder –
Circumstantial evidence – Motive –
Evidence of last seen - Prosecution failed to lead even an iota of evidence to
show that the appellant-accused was deprived of the plot of land owned by him
so as to connect such transaction with the theory of motive - The remaining part of evidence of (PW-1) is conjectural
and hearsay in nature - In cross-examination, (PW-1) admitted that he did not
see anything with his own eyes - He could not recollect the names of the
people/villagers who told him that they had seen the appellant-accused at the
crime scene – PW-6 was created by the prosecution and his testimony is totally unworthy
of credence - Similar evidence was given by (PW-7) and his testimony also
deserves to be discarded for the same reasons - On a meticulous examination of
the deposition of the Investigating Officer (PW-12), find the following
inherent infirmities in his testimony which completely discredits the
prosecution’s case regarding the so-called incriminating recoveries: - (i) The
Investigating Officer (PW-12) neither proved nor exhibited the disclosure
statement of the appellant-accused during his deposition – (ii) The
Investigating Officer (PW-12) did not distinctly identify the accused persons
at whose instance, the particular weapon, i.e., axe (kulhari) or dagger
(katari), was recovered;- (iii) There is no indication in the testimony of
Investigating Officer (PW-12) that he took the signatures of the accused
persons on the recovery memos - Not even this, the said witness did not
even state that he signed and attested the memorandums under which the
recoveries were effected - Therefore, the substratum of the prosecution case
regarding the disclosure statements rendered by the appellant-accused and the
recoveries allegedly made in furtherance thereof remains unproved for want of
proper evidence - Do not find anything in examination-in-chief of the PW 12 to
suggest that the officer, conducted any investigation whatsoever regarding the
theory of motive - The evidence of the Investigating Officer (PW-12) is totally
silent on this vital aspect of the case - High Court while deciding the appeal
of the co-accused Gayatri has observed that the recoveries effected at her
instance were planted and fake – Held that the investigation of a case
involving gruesome murders of six innocent persons was carried out in a most
casual and negligent manner - The Investigating Officer (PW-12) did
not examine even a single of the villagers living adjacent to the crime
scene for establishing the presence of the appellant-accused at or around the
crime scene, corresponding to the time of the incident- No effort whatsoever
was made to collect proper evidence of motive - The Investigating Officer
(PW-12) failed to collect any evidence whatsoever regarding the safe keeping of
the recovered articles/material objects, till the same reached the Forensic
Science Laboratory - This utter negligence in conducting the investigation has
contributed significantly to the failure of the prosecution’s case as against
the appellant-accused - Held that the prosecution has failed to prove even one
of the three so-called incriminating circumstances i.e., ‘motive’, ‘last seen’
and ‘recoveries’ in its quest to bring home the guilt of the appellant-accused
- Even if, for the sake of arguments the evidence of recovery of weapons
were to be accepted, the fact remains that the FSL report does not give any
indication regarding the grouping of the blood found on the weapons and hence,
the recoveries are of no avail to the prosecution - High Court failed to advert
to these inherent improbabilities and infirmities in the prosecution case - The
fabric of the prosecution case is full of holes and holes which are impossible
to mend - Impugned judgments do not stand to scrutiny and deserves to be set
aside - As a consequence, the conviction of the appellant-accused and death
sentence handed down to him can also not be sustained – Appellant acquitted of
the charges.
(Para
20 to 26, 32 to 39)
JUDGMENT
Mehta, J.:- Heard.
2.
The law is well-settled that in a criminal case irrespective of the gravity and
nature of charges, the prosecution is under an obligation to prove the guilt of
the accused by leading evidence which is convincing and links the accused with
the crime beyond all manner of reasonable doubt. In a case based purely on
circumstantial evidence, the onus is upon the prosecution to prove the
chain of circumstances beyond all manner of doubt. The law in respect of the
same has been crystallized in Sharad Birdhichand Sharda v. State of
Maharashtra[(1984) 4 SCC 116.] wherein
it was held that:-
“153. A close analysis
of this decision would show that the following conditions must be fulfilled
before a case against an accused can be said to be fully established:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here
that this Court indicated that the circumstances concerned “must or should” and
not “may be” established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should be proved” as was
held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the observations were made: [SCC para
19, p. 807:SCC (Cri) p. 1047]
“Certainly, it is a
primary principle that the accused must be and not merely may be guilty before
a court can convict and the mental distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure conclusions.”
(2) the facts so
established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances
should be of a conclusive nature and tendency,
(4) they should
exclude every possible hypothesis except the one to be proved, and
(5) there must be a
chain of evidence so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.
(emphasis
supplied)
3.
Keeping in view the above principles, we shall now advert to the facts of the
case at hand. The appellant i.e., Gambhir Singh[Hereinafter, referred to as ‘appellant-accused’.] has been convicted and sentenced to death in
relation to a ghastly incident involving murder of his own brother[The brother, namely “Satyabhan”.],
sister-in-law[The sister-in-law, namely
“Pushpa”.] and their four innocent children[The children, namely Aarti, Mahla, Gudia and Kanhaiya.] . The
incident took place in the house of the deceased persons at village Turkiya on
the intervening night of 8th and 9th May, 2012.
4.
The case of prosecution in a nutshell is that on 9th May, 2012 at about 6:30
am, Mahaveer Singh (PW-1), being the brother of deceased Pushpa, received
shocking information that his sister, brother-in-law, nephew and nieces had
been hacked to death. On receiving this information, Mahaveer Singh (PW-1), his
family members, along with other villagers reached village Turkiya, where his
sister used to reside along with her husband and four children. They proceeded
to the house and saw that all the six members of the family had been killed in
a heinous manner with blows of sharp and blunt weapons.
5.
Mahaveer Singh (PW-1), the informant lodged a written report[Exhibit Ka- 1.] with Station House
Officer, Police Station Achhnera, District Agra alleging inter alia that the
marriage of his sister Pushpa had been solemnized about 12 years ago with
Satyabhan, son of Shiv Singh, resident of village Turkiya. From their wedlock a
son and three daughters were born. The appellant-accused, younger brother of
Satyabhan, bore enmity with them due to a land dispute. On 8th May, 2012, the
appellant-accused was staying with his friend Abhishek at the house of the
informant’s sister. On 9th May, 2012 Mahaveer Singh (PW-1) received information
that his sister, brother-in-law, nephew, and nieces i.e., the whole family of
his sister had been done to death. The informant along with his family members
and villagers reached village Turkiya and saw the dead bodies of his family
members lying there. He made enquiries, on which it came to light that on the
previous evening the appellant-accused along with his friend Abhishek and
sister Gayatri was seen going from village Turkiya in a bewildered condition.
Mahaveer Singh (PW-1) suspected that appellant- accused and his friend Abhishek
may have murdered his sister, brother-in-law and their four children with
sharp-edged weapons.
6.
Based on the report given by Mahaveer Singh (PW-1), an FIR No. 105 of 2012[Exhibit Ka-18.] (Case Crime No. 329 of
2012) was registered at the Police Station Achhnera, Agra against the
appellant-accused, Abhishek and Gayatri for the offences punishable
under Section 302 of Indian Penal Code[Hereinafter referred to as “IPC”.]. Tasleem Ahmed Rizvi (PW-12),
Inspector of Police[Hereinafter referred
to as the “Investigating Officer (PW12)”.] commenced investigation. Inquest was conducted
on the dead bodies of all the deceased persons[Exhibit Ka- 6 to Ka- 11.] and bodies were thereafter, dispatched
to the Medical Officer, Dr. Vinod Kumar (PW-8) for conducting post mortem. The
Doctor carried out the autopsies and noticed injuries from sharp-edged weapons
on each dead body. He issued the post mortem reports for all the dead bodies. [Exhibit Ka- 12 to Ka- 17.]
7.
The Investigating Officer (PW-12) on receiving information regarding
whereabouts of the accused persons, proceeded to Eidgah Railway Station. He
arrested the appellant-accused and two other co-accused persons i.e., Abhishek
and Gayatri on 9th May, 2012. He recovered a pair of kundal, two bichhua, one
metallic ring, and two ghungaroos from the possession of the accused-appellant.
A passbook of State Bank of India and a cheque book, both belonging to deceased
Satyabhan were recovered from the possession of co-accused, Gayatri. Further,
the identity cards of deceased Satyabhan and deceased Pushpa and a sum of
Rs.200/- were also recovered from her possession. The clothes and shoes worn by
the appellant-accused and co-accused, Abhishek were found to be blood-stained
and thus, the same were also seized and sealed. These articles as recovered
from the accused persons were seized and recovery memo[Exhibit Ka- 22.] was prepared.
8.
Thereafter, the disclosure statements of the accused persons were recorded by
the Investigating Officer (PW-12) under Section 27 of the Indian Evidence Act,
1872[Hereinafter, referred to as
“Evidence Act”.] , and thereafter, they were taken to the crime scene.
The weapons i.e. axe (kulhari) and dagger (katari), allegedly used in the
commission of crime were recovered from a room in the house of the deceased
persons where fodder was kept. These weapons were pointed out by the accused-
appellant (kulhari) and co-accused, Abhishek (katari) in the presence of the
panch witnesses. Since the weapons were found to be blood-stained, the same
were sealed and kept in safe custody.
[Exhibit Ka- 2.] The Investigating Officer (PW-12) also collected
blood-stained soil and control soil from the place of occurrence and sealed the
same. [Exhibit Ka- 3.] Various other
articles were also recovered from the crime scene. [Exhibit Ka- 4 and Ka- 5.] Articles recovered from the crime scene
viz., the clothes worn by the deceased and the articles recovered from and at
the instance of the accused persons were all sent to the FSL for chemical
examination. The FSL report[Exhibit Ka-
24 to Ka- 28.] was received as per which, human blood was identified on
numerous articles, but the blood group thereof could not be ascertained.
9.
On completion of investigation, the Investigating Officer (PW-12) submitted a
chargesheet[Exhibit Ka- 23.] against
the appellant-accused and the co-accused Abhishek and Gayatri for the offences
punishable under Section 302 read with Section 34 and Section
404 IPC. The offences being exclusively triable by the Sessions Court, the
case was committed and made over to the Court of the Additional Sessions Judge,
Agra[Hereinafter, referred to as the
“trial Court”.] . The trial Court framed charges against the
appellant-accused and the two co-accused persons for the offences mentioned
above. The accused persons abjured their guilt and claimed trial. The accused,
Abhishek moved an application with a prayer to be declared a juvenile. On this
application, the trial Court ordered an enquiry to be conducted by the Juvenile
Justice Board and vide order dated 18th April, 2013, co-accused Abhishek was
declared to be a juvenile in conflict with law and his case was accordingly
separated and was transferred to the Juvenile Court. Hence, the trial of the
Sessions Case was conducted only against the accused-appellant and co-accused,
Gayatri.
10.
The prosecution examined as many as 13 witnesses, exhibited 23 documents and 10
material objects in order to prove its case. On closure of the prosecution
evidence, the statements of the accused-appellant and co-accused Gayatri were
recorded under Section 313 of the Code of Criminal Procedure, 1973[For short, “CrPC”.]. They were
confronted with the allegations as appearing in the prosecution evidence which
they denied and claimed to be innocent.
11.
Upon hearing the arguments advanced by the Public Prosecutor and the counsel
for defence and after appreciating the evidence available on record, the trial
Court, vide judgment dated 20th March, 2017 proceeded to hold that the
prosecution was able to prove the case against the appellant-accused beyond all
manner of doubt and accordingly, the appellant-accused was convicted for the
offences punishable under Section 302 read with Section
34 and Section 404 of IPC. However, the co-accused, Gayatri was
acquitted of all the charges by giving her the benefit of doubt.
12.
After hearing the appellant-accused and Public Prosecutor in respect of
sentence, the trial Court imposed death penalty along with fine of Rs. 50,000/-
under Section 302 read with Section 34 of IPC and 3 years
imprisonment along with fine Rs. 10,000/- under Section 404 IPC.
13.
The reference[Reference No. 07 of 2017.]
for confirmation of the death sentence awarded to the appellant-accused, was
forwarded to the High Court of Judicature at Allahabad[Hereinafter, referred to as the “High Court”.] under Section 366 CrPC. The State
preferred an appeal[Government Appeal No.
3574 of 2017.] assailing the acquittal of co-accused, Gayatri. A separate
appeal[Capital Case No. 1900 of 2017.]
was also preferred by the appellant- accused assailing his order of conviction
awarded by the trial Court. The High Court, vide judgment dated 9th January,
2019, proceeded to dismiss the appeal filed by the State, assailing
the acquittal of Gayatri by recording a pertinent finding that the
prosecution had planted the recoveries allegedly made at the instance of the
said accused, and the case against Gayatri had not been proved beyond
reasonable doubt.
14.
The appeal filed by the appellant-accused was dismissed. The reference
under Section 366 CrPC was answered in the affirmative and the
conviction of the appellant-accused and the death sentence awarded to him stood
confirmed. The appellant-accused has filed the present appeal by special leave
before this Court, assailing the judgment dated 9th January, 2019 rendered by
the High Court whereby, the conviction and order of death sentence passed by
the trial Court has been affirmed.
15.
Learned counsel representing the appellant-accused urged that the entire case
of the prosecution is false and fabricated. The prosecution has failed to prove
even one of the so-called incriminating circumstances so as to connect the
appellant- accused with the crime. The prosecution projected three
circumstances for proving the guilt of the appellant-accused, i.e., ‘last
seen’, ‘motive’ and ‘recoveries made at the instance of the appellant-accused’.
However, as per the learned counsel for the appellant-accused, none of the
aforesaid incriminating circumstances was proved by leading credible
evidence. He thus, implored this Court to accept the appeal and set aside the
impugned judgment and acquit the appellant-accused of all the charges levelled
against him.
16.
Per contra, learned Standing Counsel appearing for the State, vehemently and
fervently opposed the submissions advanced by the learned counsel for the
appellant-accused. He urged that the prosecution has proved the charges against
the appellant-accused beyond all manner of doubt. The prosecution witnesses
(PW-1 to PW-5) and other villagers reached the place of occurrence in the
morning after receiving the information of the ghastly incident involving six
murders. They made inquiries from the villagers and came to know that the
appellant-accused had committed the murder of Satyabhan and his family members
owing to a long standing land dispute. He urged that the appellant-accused and
the deceased Satyabhan were real brothers and were involved in the murder of
their own mother. The land owned by the appellant- accused was sold to cover
the expenses of pleading the case involving the murder of his mother. The said
property had been purchased by deceased Satyabhan in the name of his wife
(deceased Pushpa). When the appellant-accused was released on bail, in the
case involving murder of his own mother, he insisted that his land should be
returned. Owing to this, disputes ensued between the two brothers and the
appellant-accused vowed to take revenge and threatened the victim with dire
consequences. Owing to this motive and greed, the appellant-accused brutally
murdered his real brother, sister-in-law and their four children.
17.
It was further submitted by the counsel for the respondent that the prosecution
has proved the circumstances of motive, last seen theory, and recovery of the
incriminating blood-stained weapons and clothes by leading cogent evidence. He
thus urged that the appellant-accused was rightly convicted by the trial Court
and his conviction was justifiably affirmed by the High Court. He further urged
that the case involves gruesome murder of six persons including four innocent
children and thus, the appellant- accused deserves no leniency on the question
of sentence as well. Hence, he implored this Court to dismiss the appeals and
affirm the impugned judgments and the order of death sentence awarded to the
appellant-accused.
18.
We have given our thoughtful consideration to the submissions advanced at the
bar and have gone through the impugned judgements. We have also re-appreciated
the evidence available on record with the assistance of the learned
counsel representing the parties.
19.
At the outset, we may note that there is no dispute regarding the cause of
death of six deceased persons. The six dead bodies were subjected to autopsy by
Medical Officer, Dr. Vinod Kumar (PW-8), who has proved all the post mortem
reports in detail during his testimony. The evidence of Medical Officer (PW-8)
remained unchallenged and hence, we have no reason to doubt the opinion
expressed by Medical Officer (PW-8) that the death of the six victims was
homicidal and had been caused by inflicting blows of sharp-edged weapons.
20.
Now, we come to the theory of motive. The only semblance of motive which the
prosecution has tried to attribute to the appellant-accused by way of
incriminating circumstances, is based on the theory that the land owned by the
appellant-accused had been sold by deceased Satyabhan to his own wife (deceased
Pushpa) for covering the expenses borne in the pairokari of the criminal case
wherein, the appellant-accused and the deceased Satyabhan were arraigned as
accused for the murder of their own mother. However, on-going through the
entire record, we find that other than a bald aspersion made by Mahaveer Singh
(PW-1), the first informant and the brother of deceased Pushpa in his
deposition, no plausible evidence has been brought on record by the prosecution
to prove the above story so as to establish the motive attributed to the
appellant-accused. Neither the particulars of the criminal case involving the
murder of mother of deceased Satyabhan and the appellant-accused were placed on
record nor did the prosecution produce the documents evidencing the sale of the
plot of land, owned by the appellant-accused. Resultantly, there is no escape
from the conclusion that the prosecution failed to lead even an iota of
evidence to show that the appellant-accused was deprived of the plot of land
owned by him so as to connect such transaction with the theory of motive.
21.
The remaining part of evidence of Mahaveer Singh (PW-1) is conjectural and
hearsay in nature. In cross-examination, Mahavir Singh (PW-1) admitted that he
did not see anything with his own eyes. He could not recollect the names of the
people/villagers who told him that they had seen the appellant-accused at the
crime scene.
22.
The evidence of Bahadur Singh (PW-2) is also hearsay in nature. In addition,
the witness also stated that the police apprehended the appellant-accused,
Gayatri and Abhishek and took them to the crime scene from where the
appellant-accused got recovered an axe (kulhari) concealed under the straw kept
in the house. A dagger (katari) was also recovered at the instance of Abhishek.
This witness also gave evidence regarding collection of the blood-stained soil,
blood-stained clothes etc. from the spot. This witness is the uncle of the
first informant, Mahaveer Singh (PW-1) and thus, it is important to note that
he did not utter a single word regarding the theory of motive as portrayed in
the evidence of PW-1.
23.
Shivram Singh (PW-3) deposed as a panch witness of the recovery memos. He also
stated that the appellant-accused got recovered an axe (kulhari) and Abhishek
took out a dagger (katari) from inside the house and gave it to the Inspector.
24.
Mahtab Singh (PW-4) and Raju (PW-5) were the panch witnesses associated with
the preparation of the inquest panchnamas carried out on the dead bodies of the
deceased victims. Their evidence is of formal character.
25.
Dashrath Singh (PW-6) testified that about 3 years ago, he was sitting at his
shop near village Achhnera. One Kedar Singh was also sitting beside him. In the
evening at about 4 to 5 o’ clock, he saw the appellant-accused along with a boy
(Abhishek) and his sister, Gayatri moving very quickly. They were
proceeding towards Agra from the direction of village Turkiya. The clothes worn
by the appellant-accused and the boy (Abhishek) were ensanguined and Gayatri
was walking at a little distance from them. The witness claimed that he knew
the appellant-accused and Gayatri because her elder brother i.e., deceased
Satyabhan was married in his family. The witness stated that the next day he
received information from Turkiya regarding the murders and accordingly, he
also reached the place of incident where he came to know that his
brother-in-law, sister, and their children had been murdered.
26.
In cross-examination, the witness (PW-6) stated that when he reached village
Turkiya, he saw that a large crowd had gathered. People from the crowd told him
that his brother-in-law, sister, and their children had been murdered. He also
stated that the appellant-accused met him at 5 o’ clock in the evening. The
witness (PW-6) did not talk to him because the appellant-accused was not a good
person and had blood on his clothes. The witness could not recollect the date
of the incident. Apparently, the evidence of this witness has been created by
the prosecution for lending credence to its flimsy case, as against the
appellant- accused and to link him with the crime by hook or by crook.
We have strong reasons for holding so. As per the prosecution case, the
incident took place in the intervening night of 8th May, 2012 and 9th May,
2012. Thus, even if the evidence of Dashrath (PW-6) is to be believed, the same
does not give any credence to the prosecution’s case, since the witness claims
to have seen the appellant-accused, Gayatri, and another person in the evening
at about 4 to 5 o’ clock whereas the murders admittedly took place much later
in the night and the witness heard about the incident on the next day. Thus,
apparently, this witness was created by the prosecution and his testimony is
totally unworthy of credence. Similar evidence was given by Kedar Singh (PW-7)
and his testimony also deserves to be discarded for the same reasons.
27.
In addition, thereto, we may note that the distance between Achhnera and
Turkiya is about 7 to 10 kms as stated by Mahaveer Singh (PW-1) in his
deposition. Thus, the probability of the appellant-accused traversing this long
distance wearing blood- stained clothes after having committed six murders is
virtually impossible and unbelievable. Evidently, both these witnesses, namely,
Dashrath Singh (PW-6) and Kedar Singh (PW-7), are cooked-up witnesses whose
testimony has been created by the prosecution to lend credence to its story in
a case of blind murder.
28.
Raj Bahadur Singh (PW-9) was posted as Sub-Inspector at Police Station Achhnera
on the date of the incident. He accompanied the Investigating Officer (PW-12)
and the other police officials and proceeded to the crime scene where the
panchnamas were prepared. His evidence is formal in nature.
29.
Sitaram Saroj (PW-10) was posted as Sub-Inspector in the Reserve Police Line,
Mainpuri. He participated in inquest proceedings. He also carried out some
formal steps of investigation. On going through the testimony of PW-10, we find
that the same is formal in nature and not of much relevance for linking the
appellant-accused with the crime in any manner.
30.
Sunil Kumar (PW-11) was posted as a Constable at Police Station Achhnera on the
date of the incident. He received the written report submitted by Mahaveer
Singh (PW-1) and registered the FIR No. 105 of 2012 (Crime Case No. 329 of
2012) at the Police Station and entered the same in the general diary of the
police station. Thus, the evidence of the said witness is also formal in
nature.
31.
The most important and material witness of the prosecution is Tasleem Ahmed
Rizvi (PW-12), Inspector of Police who was posted as SHO at Police Station
Achhnera and conducted the investigation of the case. The relevant extracts
from the testimony which are essential for appreciating and evaluating the case
of the prosecution are reproduced herein below: -
“On 09.05.12, I was
posted as SHO in police station Achhnera. On the basis of the report given by
the informant Mr. Mahavir Singh, case crime no. 329/12 under section
302 IPC was registered. I received the copy of the chik, copy report from
the police station. On this basis, on that day after registering the report I
took the informant statement. The site of the incident was inspected on the
instance of the informant. And on the same day, I made a map of the spot and
leaving enough force on the spot for Panchnama; while searching and monitoring
the accused, they were arrested from Idgah railway station and also recovered
the ornaments of the deceased from them and fard was made. Also recorded the
confessional statement of the accused Gambhir, statement of accused Abhishek
and statement of accused Gayatri. Thereafter on the instance of the accused in
front of the witnesses and the public, recovered the axe and dagger used in
murder from the straw room from the house of the deceased Satyabhan, prepared
the fard in front of the public and the police and a map of the spot of the
verandah was also prepared. On the same day, by taking possession of
blood-stained clothes and some food items from the spot, fard was prepared and
had also written confessional statements about the recovery of weapons used in
murders and sent the dead bodies for post-mortem after conducting Panchnama. On
date - 10.05.12, after observing the Panchnama and PMR of the deceased in the
form the same was copied and the statements of Panchnama and Fard's testimony
were recorded. Statement of Dashrath and Kailash Singh were recorded in GD
third dated 11.05. On 15.05.12, the goods of CD-4 were sent to the Forensic
Science Laboratory. On 16.05.12, in CD5, accused Abhishek went to jail and
re-recorded the statement and the address was confirmed and the viscera and
material of the deceased concerned in the trial were sent to the Forensic
Science Laboratory. After this I was transferred to the police station
Achhnera. The subsequent investigation was done by SO Mr Rajiv Kumar Yadav. The
site plan of the place of occurrence and the recovery weapons used in murder,
is in my writing and signature. Exhibit Ka-20 was marked at the site plan of
the incident. Exhibit Ka-21 was marked on weapon used in Murder. Fard of
axe used in murder and a dagger recovered by me at the direction of the
accused. Fard of which I had made by dictating it to SI Kiranpal Singh. Fard is
present in front of me on the record today. I have my signature on this along
with other witnesses. Exhibit Ka-2 has already been marked on the fard in the
past. On the same day, 2 kundals of the deceased, 2 bichhuas, 1 chhalla, 2
ghughroo and passbook and check book etc. recovered from the possession of the
accused fard of which was prepared by SSI Shri Vindra Kumar Singh was prepared
by dictating on which there are my signatures along with signatures of
witnesses. Fard is present in front of me on the record, on which Exhibit Ka-
22 was marked. The copy of the fard was given to the accused on which his
signature were taken.”
32.
On a meticulous examination of the deposition of the Investigating Officer
(PW-12), we find the following inherent infirmities in his testimony which
completely discredits the prosecution’s case regarding the so-called
incriminating recoveries: -
(i) The Investigating
Officer (PW-12) neither proved nor exhibited the disclosure statement of the
appellant-accused during his deposition;
(ii) The Investigating
Officer (PW-12) did not distinctly identify the accused persons at whose
instance, the particular weapon, i.e., axe (kulhari) or dagger (katari), was
recovered;
(iii) There is no
indication in the testimony of Investigating Officer (PW-12) that he took the
signatures of the accused persons on the recovery memos. Not even this, the
said witness did not even state that he signed and attested the
memorandums under which the recoveries were effected. Therefore, the substratum
of the prosecution case regarding the disclosure statements rendered by the
appellant-accused and the recoveries allegedly made in furtherance thereof
remains unproved for want of proper evidence.
33.
Furthermore, on going through the entire examination-in- chief of the
Investigating Officer (PW-12), we do not find anything therein to suggest that
the officer, conducted any investigation whatsoever regarding the theory of
motive. The evidence of the Investigating Officer (PW-12) is totally silent on
this vital aspect of the case. At this stage, we may also refer to the fact
that the High Court while deciding the appeal of the co-accused Gayatri has
observed that the recoveries effected at her instance were planted and fake.
34.
Having considered the material available on record in its entirety, we find
that the present one is a case involving utter lackadaisical approach on part
of the Investigating Agency as well as the prosecution. The investigation of a
case involving gruesome murders of six innocent persons was carried out in a
most casual and negligent manner. The Investigating Officer (PW-12) did
not examine even a single of the villagers living adjacent to the crime
scene for establishing the presence of the appellant-accused at or around the
crime scene, corresponding to the time of the incident. No effort whatsoever
was made to collect proper evidence of motive. The Investigating Officer
(PW-12) failed to collect any evidence whatsoever regarding the safe keeping of
the recovered articles/material objects, till the same reached the Forensic
Science Laboratory. This utter negligence in conducting the investigation has
contributed significantly to the failure of the prosecution’s case as against
the appellant-accused.
35.
We further feel that the Public Prosecutor conducting the trial and so also the
Presiding Officer of the trial Court were totally remiss while conducting the
trial. The evidence of the material prosecution witness in a case involving
gruesome murders of six persons including four innocent children was recorded
in a most casual and lackadaisical manner, without adhering to the mandatory
procedural requirements of the Evidence Act.
36.
In the result, we are of the view that the prosecution has failed to prove even
one of the three so-called incriminating circumstances i.e., ‘motive’, ‘last
seen’ and ‘recoveries’ in its quest to bring home the guilt of the
appellant-accused. Even if, for the sake of arguments the evidence of
recovery of weapons were to be accepted, the fact remains that the FSL report
does not give any indication regarding the grouping of the blood found on the
weapons and hence, the recoveries are of no avail to the prosecution.
37.
On a careful perusal of the impugned judgment, we find that the High Court has
failed to advert to these inherent improbabilities and infirmities in the
prosecution case. The fabric of the prosecution case is full of holes and holes
which are impossible to mend. Thus, the impugned judgments do not stand to
scrutiny and deserves to be set aside. As a consequence, the conviction of the
appellant-accused and death sentence handed down to him can also not be
sustained.
38.
Resultantly, the impugned judgments25 are quashed and the conviction of the
appellant-accused as recorded by the trial Court and affirmed by the High Court
is set aside.
39.
The appellant-Gambhir Singh is acquitted of the charges. He is in custody and
shall be released from prison forthwith, if not wanted in any other case.
40.
The appeals are allowed accordingly.
25
Dated 20th March, 2017 and 9th January, 2019 passed by the trial Court and the
High Court, respectively.
41.
Pending application(s), if any, shall stand disposed of.
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