Docid # IndLawLib/1354703

(2018) Sup ADJ 4

ALLAHABAD HIGH COURT
DIVISION BENCH

PURSHOTTAM RAI — Appellant

Vs.

STATE OF U.P. — Respondent

( Before : Sudhir Agarwal and Vijay Lakshmi, JJ. )
Criminal Appeal No. 2577 of 1983, 3050 of 1983
Decided on : 07-09-2018

Criminal Procedure Code, 1973 (CrPC) - Section 313

Evidence Act, 1872 - Section 27
Penal Code, 1860 (IPC) - Section 302

Evidence Act, 1872 - Section 27 - Motive - Circumstantial Evidence

- In a case resting on circumstantial evidence, 'Motive' forms an
important link in the chain of circumstances. Behind every
criminal act there is always a motive, which impels a criminal to
commit a particular crime. In the cases, where direct evidence is
available, the motive becomes somewhat irrelevant. However, in
the cases based on circumstantial evidence, the motive assumes
significance as it is the guiding force behind the crime and in
absence of any proof about motive, it would be very difficult for
the prosecution to prove the guilt of accused against whom there
is no ocular evidence - No reason to interfere with the judgment
impugned which deserves to be confirmed - Appeal stands
dismissed.
Counsel for Appearing Parties
S.C. Srivastava, Adv., B.N. Rai, Adv., Prashant Singh, Adv.
Cases Referred

Ganpat Singh Vs. The State of Madhya Pradesh, (2017) 7 Supreme 377
Harivadan Babubhai Patel Vs. State of Gujrat, (2013) 7 SCC 45
Madhu Vs. State of Kerala, (2012) 2 SCC 399
Mukesh Vs. State of NCT of Delhi, (2017) 3 Supreme 385
Munna Kumar Upadhyay Vs. State of Andhra Pradesh, (2012) 6 SCC 174
Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116
State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254
Final Result : Dismissed

JUDGMENT/ORDER
Vijay Lakshmi, J. - As both these appeals arise out of same judgment and
order dated 18.7.1983 passed by IVth Additional Sessions Judge, Ghazipur in
Sessions Trial No.91/1982 arising out of Case Crime No.79/1981, whereby the
appellant has been convicted and sentenced under Section 302 of I.P.C. with
Life Imprisonment, both are being decided together by this common
judgment.
2. We have heard Shri. Prashant Singh, learned amicus Curaie on behalf of
the appellant, Shri Rishi Chaddha learned A.G.A. for the State and have
carefully gone through the lower court's record.
3. The facts in brief are that the deceased Ramdeo Rai, the father of the
accused-appellant Purshottam Rai, was living jointly with the family of his
real brother Bhola Rai. Both the brothers had 30 bighas of land having joint
title and possession. The accused-appellant is the only son of Ramdeo Rai,
whereas Bhola Rai has four sons namely Paramhans Rai, Balmohan alias
Babbban Rai, Manoj Kumar Rai and Ravindra Nath Rai and three daughters.
Their residential house was situated in the main abadi of village Sherpur
Kalan, whereas they had a thatched accomodation (Dera) in their fields
where they used to keep agricultural goods and cattles. A pumping set was
also installed there. The deceased Ramdeo Rai used to sleep at Dera for the
purpose of watching the crops, cattles and the pumping set. The accused-
appellant Purshottam Rai had lost his mother in his childhood and he
himself was issueless. It is stated that perhaps due to this reason, he and his
wife had become short tempered. The appellant was pressurizing his father,
deceased Ramdeo Rai, to separate his share from the family of his brother
Bhola Rai by a partition, but the deceased was not adhereing to this, despite
several attempts made by the accused. As a result, there weres clashes
between the father and the son, off and on.
4. The prosecution case in this background, is that in the evening of 1.6.1981
at about 8 P.M., the accused-appellant had gone to the Dera taking with him
the meals for his father. At about 3 A.M. in the intervening night of
1/2.6.1981, he returned back to his house and awaken his cousin brother
Ravindra Nath Rai (P.W.1) and Paramhans Rai (not examined) informing
them that some dacoits had killed his father and had looted away the cattles
from the dera. Hearing this, Ravindra Nath Rai and his brother Paramhans
Rai called Om Prakash Rai @ Bechan Rai (P.W.5), Surendra Rai and
Tarkeshwar Prasad (not produced) of their village and proceeded towards
the Dera. On their way they also picked up Narain, Banwari Singh Yadav
(not produced) and his two sons Sati Ram (P.W.3) and Vikrama (not
produced). On reaching their Dera, they found their Uncle deceased Ramdeo
Rai lying on his cot in a pool of blood inside the thatched accomodation, but
they found the cattles, pumping set and all other things in the Dera intact.
Moved by the pathetic scene, P.W.1 Ravindra Nath Rai and his brother
Paramhans Rai burst into tears and came out in the Khalihan. The appellant
also followed them. Meanwhile, the dawn had approached and in the light
the witnesses noticed blood stains on the clothes of the appellant. When they
enquired, the appellant informed that his clothes might have got blood
stains while he was seeing his deceased father. After that the appellant went
away towards village Sherpur Kalan. P.W.1 Ravindra Nath Rai and his
brother thought that the appellant might have gone to lodge the F.I.R., but
after sometime the appellant came back with changed clothes.
5. In the meantime, the village Chowkidar Jagarnath gave oral information
at the police outpost of Sherpur Kalan about the murder of deceased
Ramdeo Rai, on the basis of which case was registered against unknown
criminals at Case Crime No.79/81 under Section 302 I.P.C. The check report
(Exhibit Ka-8) was prepared and relevant entries were made in the General
Diary (Exhibit Ka-1).
6. On 02.6.1981, Sub Inspector Jagdish Singh Yadav (P.W.8) was entrusted the
investigation of the case, who immediately rushed to village Sherpur Kalan
where he met the village Chowkidar Jagarnath Yadav (the Chowkidar/first
informant could not be examined due to his death during trial). The
Investigating Officer proceeded to the spot where he met the appellant and
recorded his statement. He took the corpse in his custody, conducted the
inquest proceedings and sent the body for postmortem.
7. P.W.6 Dr.D.N. Prasad conducted the postmortem examination on the dead
body and he found the following antemortem injuries:

a. Incised wound 3 cm x1 cm x bone deep over scalp, 5cm about right

elblow.

b. Incised wound 7 cm x1 cm, 7cm below and behind right ear.

c. Incised wound 15 cm x 3 cm x bone deep, 2 cm below right ear and

extended from right ear to back of neck upto midline.

d. Incised wound on whole circumference except 5 cm on back and

attached with the body with a tag of skin on posterior aspect of neck. All
the muscle and vessels of neck were cut by the injury and vertebra were
separate at the level of C3/C4. The injury was 2 cm above the sternal
notch.

e. Incised wound 3cm x 1/2 cm on back of right hand 4 cm below right

wrist joint.

f. Incised wound 7 cm x 1 1/2cm x bone deep, oblique, 2 cm above on

medial to top of left shoulder.
 g. Incised wound 5 cm x 1 cm x bone deep, 3 cm below injury no.6.

h. Incised wound 6 cm x 2cm x bone deep, 2cm below injury no.7.

According to Dr.D. N. Prasad (P.W.6) the death of the victim had occured
due to shock and haemorrahage as a result of ante-mortem injuries. He
has opined that the ante-mortem injuries found by him on the dead
body were sufficient in ordinary course of nature to cause death of the
deceased instantaneously and were caused by some sharp edeged
weapon including Gandasa and the death could have taken place on the
intervening night of 1/2-6-1981 any time after mid night.

8. The Investigating Officer collected the blood stained and plain soil from
the spot. He took the blood stained bedding of the deceased including a
'quilt', a 'kathari', a 'kurta' and a piece of jute cloth having blood on it and
prepared the memos. During this period, the Investigating Officer felt the
necessity of further interrogation of the appellant, but he could be found at
the spot. The Investigating Officer was informed that the appellant had been
seen going towards Sheik-Ka-Tal. Then the Investigating Officer, along with
some police personnel and public witness Ram Nagina Singh (P.W.4) and
Samirathi (not produced) went towards Sheik-Ka-Tal and saw the accused-
appellant sitting there, who after seeing the police party, made a futile
attempt to run away, but was overpowered and was taken into custody.
9. On further interrogation, accused-appellant confessed his guilt and stated
that the clothes he was wearing at night were stained with blood while he
was murdering is father so he had washed them and he can give those
clothes and the 'gandasi' with which he has killed his father, to the police.
Thereafter, appellant led the police party to the north eastern room of his
house from where he took out a wet 'Dhoti', 'Gamchha' and 'Baniyan' and
gave them to the Investigating Officer who prepared a memo in respect of
them (Exhibit Ka-5). All the wet clothes, had visible blood spots on them
even after washing. The Investigating Officer, after drying those articles,
sealed them in a bundle and sent to forensic science laborotary for chemical
examination. He also prepared the site plan of the places from where those
articles had been recovered. Thereafter, the accused-appellant led the police
party and the witnesses to the Dera from where he took out a blood stained
'Gandasa' (material exhibit-8) having chaff particles stuck on the blood
stains. The Investigating Officer prepared its memo and after concluding the
investigation submitted chare-sheet (Exhibit Ka-17) against the appellant
under Section 302 I.P.C. Positive reports of chemical examiner and the
Serologist were received which are Exhibits Ka-18 and 19 respectively on the
record.
10. The case being triable by the court of sessions, it was committed to the
sessions court where charge under Section 302 of I.P.C. was framed against
the appellant who denied from the same and claimed to be tried.
11. The prosecution, in order to prove its case examined as many as eight
witnesses, ouf ot which P.W.1 Ravindra Nath Rai, P.W.3 Satiram, P.W.5 Om
Prakash Rai and P.W.4 Ram Nagina Singh are the witnesses of fact, whereas
the P.W.2 Babunandan Dube, P.W.6 Dr. D.N.Prasad, P.W.7 Retired Head
Constable Nanhakoo Singh and P.W.8, Sub Inspctor Jagdish Singh Yadav are
of all formal character.
12. Besides, it the prosecution also filed affidvaits of Constable Hardev Rai,
Head Constable Sadho Singh, Malkhana Moharrir, Surya Nath Mishra, a
clerk of C.M.O. Office, and Shri Bhola Nath, a peon of that Office, in support
of its case.
13. After conclusion of the prosecution evidence, the statement of the
apellant under Section 313 Cr.P.C. was recorded in which he denied from the
allegations and while taking the "plea of alibi" he stated that he was not
present at his house in the night of the incident. He was at village Laduar
and he had returned to his village Sherpur Kalan on the next day after
receiving the information about the murder of his father. He alleged that his
uncle Bhola Rai has falsely impicated him in order to usurp the entire
property and all the witnesses are the favourites of police.
14. The learned trial court, after scrutinizing the evidence in detail, found
the prosecution case worthy of credit and convicted and sentenced the
appellant as aforesaid.
15. The legality and correctness of the impugned judgment of conviction has
been challenged by the learned amicus curaie in the present appeal mainly
on the following grounds:

1. There is no eye witness of the occurrence and the entire prosecution

case rests on circumstantial evidence. However, the chain of
circumstance is incomplete.

2. The witnesses of fact are inimical and are highly interested witnesses.

3. P.W.4, Ram Nagina Singh who is a witness of recovery of blood stained

clothes of the accused and blood stained Gandasa, is a chance witness.
He is not a resident of Village Sherpur Kalan. He is also a professional
witness, often used by the police to make out a false case.

4. Appellant has been falsely implicated in this case on the basis of

fabricated and a planted recovery. The disclosure statement alleged to
be made before the police and the alleged recovery cannot be relied
upon because at the time of recovery, the accused was not in the police
custody.

5. There are material contradictions in the statement of the witnesses

for example P.W.4, Ram Nagina Singh has stated that:-
 "Dead body lay in horizontal position on the cot; no part of body was
found out of cot."

On the other hand P.W.5 Om Prakash Rai has stated as under:-

"His dead body lay on bamboo-cot in horizontal condition, quilt was on

the head side of cot and dead body of Ram deo was lying beside the
quilt.....Neck part of dead body was hanging outside the cot, feet were
also hanging out of the cot touching the ground. I did not notice whether
feet were touching the ground or not." (English translation by Court)

6. There is no cogent evidence about any quarrel taking place between

the appellant and the deceased Ramdeo Rai prior to the occureence.

7. There was no motive with the appellant to kill his real father.

16. On the aforesaid grounds, it has been contended by the learned counsel
for the appellant that the learned trial court, without a proper appreciation
of evidence has wrongly convicted the appellant only on the basis of
surmises and conjectures by the impugned judgment, which is liable to be
set-aside.
17. Per contra, learned A.G.A. has vehemently contended that all the
circumstances in this case form a complete chain, pointing out only towards
one and only hypothesis that it was the appellant and no one else, who had
killed the deceased Ramdeo Rai. Learned A.G.A. has contended that the
cattles were found intact by the witnesses tied with their pegs at Dera. The
clothes of the appellant were found stained with human blood and even
after washing, the blood was visible on them. The appellant had strong
motive to kill his father because he knew very well that his father would not
get the property divided during his lifetime. Learned A.G.A. has further
contended if some dacoits had killed the deceased and the appellant had the
knowledge about the dacoity, why he did not go to the police station to lodge
the F.I.R.? Learned A.G.A. has contended that the subsequent conduct of the
appellant clearly indicates his guilt.
18. On the aforesaid grounds it has been contended by learned A.G.A. that
the learned trial judge, after taking into consideration all the circumstances,
has rightly convicted the appellant by the impugned judgment and there is
no need to interfere in the same.
19. We have considered the rival contentions advanced by the learned
counsel for the parties and have carefully analysed the evidence available
on record.
20. In the present case, there is no eye witness of the occurrence and all the
witnesses have reached at the spot when the murder had already taken
place, therefore, the present case rests entirely on circumstantial evidence.
21. The law regarding circumstantial evidence has been well settled by a
catena of judgments by Hon'ble Supreme Court.
22. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC
116, a Bench of three Judges of the Apex Court, after analysing various
aspects, laid down certain cardinal principles for conviction on the basis of
circumstantial evidence. The Supreme Court laid down the following
conditions which must be fulfilled before a case against an accused can be
said to be fully established:

"153....(1) The circumstances from which the conclusion of guilt is to be

drawn should be fully established...

(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.

154. These five golden principles, if we may say so, constitute the
pansheel of the proof of a case based on cicumstantial evidence."

23. Recently, in the case of Ganpat Singh Vs. The State of Madhya Pradesh,
(2017) 7 Supreme 377, the Court has once again reiterated the law relating to
circumstantial evidence as follows:

"The normal principle in a case based on circumstantial evidence is that

the circumstances from which an inference of guilt is sought to be
 drawn must be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly pointing
towards the guilt of the accused; that 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 they should be incapable of explanation
on any hypothesis other than that of the guilt of the accused and
inconsistent with his innocence."

24. Now, it is to be seen whether the circumstances in the present case form
a chain so complete so as to rule out any possibility that the appellant has
not committed the murder of his real father? In other words whether all the
circumstances in this case are of such nature that they point out only
towards the guilt of the appellant and towards no other hypothesis.?
25. In a case resting on circurmsantial evidence, 'Motive' forms an important
link in the chain of circumstances. Behind every criminal act there is always
a motive which impels a criminal to commit a particular crime. In the cases,
where direct evidence is available, the motive becomes somewhat
irrelevant. However, in the cases based on circumstantial evidence, the
motive assumes significance as it is the guiding force behind the crime and
in absence of any proof about motive, it would be very difficult for the
prosecution to prove the guilt of accused against whom there is no ocular
evidendence.
26. In so far as the case in hand is concerned, the prosecution, in the present
case has successfully proved the 'motive'. The evidence available on record
clearly shows that the father of the appellant (deceased Ramdeo Rai) and his
son (appellant-Purshottam Rai) were divided in their veiws over the
partition of family property. The families of two brothers were living
together. The family of Bhola Rai had several members as he had seven
children. Whereas the family of the deceased Ramdeo Rai had only one son
namely the appellant-Purshottam Rai, but the family being a joint family, its
assets were being enjoyed equally by all the members.
27. The statement of P.W.1-Ravindra Nath Rai in paragraph 17, also shows
that appellant's Uncle Bhola Rai used to pay the expenses to the deceased
Ramdeo Rai according to his needs. Thus, the income of joint family was in
the control of Bhola Rai i.e. the Uncle of the appellant. Under these
circumstances, it was but natural for the appellant to have an intention to
get his father's share separated so as to enable him to have full enjoyment of
his father's share in the property, being the only son. However, the deceased
Ramdeo Rai was against the partition and he used to say that he will not
seek partition from his brother who for him is like 'Bharat' to 'Ram'.
28. The statements of P.W.1, Ravindra Nath Rai son of Bhola Rai, P.W.3, Sati
Ram who is a neighbour and P.W.5, Om Prakash Rai, a villager who hails
from the same village, clearly show that the appellant was bent upon to get
the property partitioned. However, the deceased Ramdeo Rai never
succumbed to the pressure.
29. P.W.3, Sati Ram whose 'dera' is situated near the 'dera' of the deceased,
has deposed that on the fateful night of the incident he had heard the noise
of quarrel between the father and son at about 9 or 10 P.M. P.W.3 has also
stated that the dispute over partition existed between the accused and the
deceased since last two years prior to the occurrence. The evidence of P.W.1,
Ravindra Nath Rai and P.W.5, Om Prakash Rai corroborates the same facts.
P.W.3, Satiram and P.W.5 , Om Prakash Rai are the residents of the same
village and there is no enmity between them and the appellant, therefore,
there is no reason with them to falsely testify against the appellant. They are
the natural witnesses and in absence of any allegation of enemity against
P.W.3 and P.W.5, both of whom are the neighbours, they cannot be termed as
interested witness.
30. Thus, the motive behind the crime in this case has been well established
by the evidence adduced by the prosectuion.
31. The appellant has been 'lastly seen' by the witnesses while he was going
towards the Dera where his father (deceased) used to sleep in the night.
P.W.1 Ravindra Nath Rai has deposed that in the night of the incident at
about 8 P.M. the accused had left the house for his Dera taking the meals for
his father. P.W.3, Satiram has heard the sound of quarrel emanating from
the Dera in the night. All the three witnesses have deposed having seen the
appellant between 3 and 4 A.M. in the midnight of the occurrence.
32. In this regard the statement of P.W.1, Ravindra Nath Rai is relevant
which is quoted below:-
"Occurrence took place 1 year 20-22 days back. After taking meal,
accused purshottam went to Pahi (a house/structure constructed at
place remote from the main house) alongwith meal of his father, at 8
O'Clock in the night. The same night at about 3 O' Clock, he (accused
 Purshottam) returned home and awakened me and my elder brother
Pramhans Rai and said that miscreants had looted cattle at dera (house)
and assasinated his father. Thereafter, taking Surendra Rai, Om Prakash
Rai alias Bachhan Rai, Tarkeshwar Rai, all went towards Pahi and on the
way they took Narayan Pahalwan, Banwari Singh Yadav and his two
sons Satiram and Vikrama from their residence and reached the house
situate at Pahi, where he found his elder Uncle (Ramdeo Rai) dead on
the cot in the madai (thatched house) of the house. His neck was cut. All
the cattle were found tied intact. Seeing this situation, we started crying.
When we could not bear the scene, I and Param Hans came to khalihan
(harvesting place) situated beside the thatched house. Purshottam also
came to khalihan with us. By that time, it started day dawn. We saw
spots of blood over the clothes worn by accused Purshotttam. When we
enquired how there existed blood spot on his clothes, he replied that
while seeing his father, these spots might have caused. Saying this,
Purshotttam went towards village. When Purshottam went towards
village, we guessed that he would have gone to Police Chowki for
lodging F.I.R. After sometime, when Purshottam came back, he was
wearing changed clothes." (English translation by Court).

33. P.W.3 Satiram has also deposed as under:-

"It was about 13-14 months back when the incident took place. In the
night of incident, I my father and brother were present in our house. In
that night at about 4 O' Clock in the morning, Om Prakash Rai, Surendra
Rai, Tarkeshwar Rai, Purshottam Rai, Ravindra Rai and Paramhans Rai
came to my house and along with them, Narayan Pahalwan whose
house is situated towards west of my house, was also present. They all
awakened us. Ravindra said to me that Purshottam Rai was saying that
miscreants had looted the Dera and also killed his father. I, my father
and brother accompaying them, went to the house of Ramdeo and
found cattle tied in tact at their respective places. Pumping set machine
and belt etc, were also intact. There was no sign of any theft or loot. On
lighting lantern, we saw that Ramdeo Rai was lying on the cot slained.
Seeing this, Paramhans Rai and Ravindra Rai started crying and went to
their khalihan situate at the western side of the house. Purshottam Rai
also accompanied them and went there. By that time, it began day
 dawn. Thereafrter, Purshottam Rai, went towards his village, through
the fields.

In the night of incident at 9-10 O' Clock sound of quarrel between the
deceased Ramdeo Rai and Purshottam was being heard. Thereafter, we
did not hear any sound of loot or any other sound." (English translation
by Court).

34. The statement of P.W.5, Om Prakash Rai also corroborates the aforesaid
acts which is as under:-
"I had slept at my door in the night intervening 1/2 June, 1981. Adjacent
to my door is the door of my Uncle Surendra Nath. That night at about
3.15 O' Clock, Surendra Nath awakened me and told that Ravindra Rai
had come and was saying that some anti-social elements had looted the
Dera and also killed elder Uncle Ramdeo Rai. Hearing this, we all
alongwith Ravindra Rai went to his door. Paramhans Rai and Pushottam
Rai were already there and Purshottam told that some miscreants had
come to dera (house) and killed his father after looting. Thereafter, we
all proceeded for the dera and also took Tarkeshwar Rai from his door.
Adjacent to the house of Ramdeo Rai at a distance of 200 latthas towards
West, house of Narayan Pahalwan is situated and from there they took
him too also. In between the house of Narayan Pahalwan and Ramdeo,
house of Banwari Ahir is situated. Therefrom, Vikrama, Sita Ram and
Banwari were also taken. We also reached Dera (house) of Ramdeo and
saw that Ramdeo was lying dead on the cot inside madai (thatched
house). All other things inside the dera were intact. It seemed that no
incident of loot had taken place. While we were inspecting all the things
at the spot, Ravindra Rai and Paamhans began to cry and while crying
they went out of the dera and went towards khalihan situated towards
west. Purshottam also accompanied them. Khalihan was situated
adjacent to dera at a distance of 2-3 lattha. After 8-10 minutes, we saw
that Purshottam Rai (present in the Court) was going towards
village.......Neck part of the dead body was hanging out of the cot and
feet were also hanging outside the cot. I did not notice whether the feet
were touching the ground or not." (English translation by Court).
35. Thus, the statements of all the prosecution witnesses corroborate each
other and there is no such material contradiction or discrepancy so as to
make their statements unreliable. Some minor discrepancies are bound to
occur in the statements of witnesses who cannot be expected to paint a
picture perfect of the scene of crime. All the witnesses have been cross-
examined at length by learned defence counsel, but nothing has been
elicitated to cast a shadow of doubt on their statements and their statements,
as a whole inspire confidence.
36. In so far as the legality and admissibility of discovery under Section 27
Evidence Act is concerned, the evidence on record clearly shows that the
discovery of blood stained wet clothes and blood stained weapon of offence
(Gandasi) has been made by the police at the instance of appellant from
inside his room and from heap of chaff kept inside his 'dera' respectively.
The 'gandasi' was kept by him hidden in the heap of Chaff inaccessible by
anyone. The appellant after his arrest, has confessed his guilt. His confession
made before a police officer and the public witesses, can be proved against
him under Section 27 of Evidence Act which postulates that if something
new is discovered or recovered from the accused, which was not in the
knowledge of the police before disclosure statement of the accused is
recorded, it is admissible in evidence.
37. In Madhu Vs. State of Kerala, (2012) 2 SCC 399, the Hon'ble Apex Court
has held as under :-

"As an exception, Section 27 of the Indian Evidence Act provides that a

confessional statement made to a police officer or while an accused is in
police custody, can be proved against him, if the same leads to the
discovery of an unknown fact. The rationale of Sections 25 and 26 of the
Indian Evidence Act is, that police may procure a confession by coercion
or threat. The exception postulated under Section 27 of the Indian
Evidence Act is applicable only if the confessional statement leads to the
discovery of some new fact. The relevance under the exception
postulated by Section 27 aforesaid, is limited "...as it relates distinctly to
the fact thereby discovered....". The rationale behind Section 27 of the
Indian Evidence Act is, that the facts in question would have remained
unknown but for the disclosure of the same by the accused. Discovery of
facts itself, therefore, substantiates the truth of the confessional
statement. And since it is truth that a court must endeavour to search,
Section 27 aforesaid has been incorporated as an exception to the
mandate contained in Sections 25 and 26 of the Indian Evidence Act."

38. From the above material, the circumstances of this case may be
enumerated as follows:

1. The appellant was seen by the witnesses going to the place of incident
while he was taking meals for his father in the night.
2. In the midnight, the appellant came to his house, awoke his cousin
brothers and informed that some dacoits have killed his father and have
looted the cattles and dera.

3. His cousin brothers, along with villagers, rushed to Dera where they
found the dead body of deceased lying in a pool of blood but nothing
was found looted and the cattles were found intact, tied with their pegs.

4. The appellant neither made any effort to lodge the F.I.R. about the
dacoity nor about the ghastly incident of brutal murder of his father.

5. The appellant has made a futile attempt to cover up the incident of

murder by painting a picture of dacoity having been committed at his
Dera, but the statements of the witnesses as quoted above, show that no
articles were found looted and everything including the water pump
and cattles, was found intact by the eye witnesses.

6. A little before dawn, when the things started becoming visible, the
witnesses noticed blood stain on the clothes of the appellant. The
appellant immediately after that, left the spot and came back after
sometime in changed clothes.

7. The appellant was found mysteriously missing from his home when
the Investigating Officer felt the necessity of re-interrogating him and he
was arrested from Sheikh Ka Taal. He also made futile attempts to run
away after seeing the police, but was immediately overpowered.

8. After his arrest, the appellant confessed his guilt before the
Investigating Officer and gave him the blood stained wet clothes from
his house situated at Sherpur Kalan. He also gave the blood stained
Gandasi to the Investigating Officer, taking it out from the heap of Chaff
kept inside the Dera, with pieces of chaff stuck on the blood over it.

9. In the forensic science laboratory report, human blood has been

found on the articles sent for the chemical examination.

10. The appellant has neither stated anything in his defence nor has
adduced any defence witness, despite being afforded full opportunity
during trial.

11. Though the appellant has taken the 'plea of Alibi' in his statement by
stating that he was present at Village Laduar in the night of occurrence,
but he has not adduced any evidence to substantiate his statement.

12. The appellant has given evasive or false replies to all the questions
put to him by the Court during his statement under Section 313 Cr.P.C.
 In the case of Munna Kumar Upadhyay Vs. State of Andhra Pradesh,
(2012) 6 SCC 174, it has been held by Supreme Court that:

"If the accused gives incorrect or false answers during the course of his
statement under Section 313 Cr.P.C., the Court can draw an adverse
inference against him and the conduct of accused would tilt the case in
favour of prosecution."

13. The appellant has been lastly seen going to the place of occurrence
with the meal of his father hence the burden was on him to prove as to
what happened thereafter but he failed to do so.

39. In State of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, Supreme Court
held as under:

"If a person is last seen with the deceased, he must offer an explanation
as to how and when he parted company. He must furnish an
explanation which appears to the court to be probable and satisfactory.
If he does so he must be held to have discharged his burden. If he fails
to offer an explanation on the basis of facts within his special
knowledge, he fails to discharge the burden cast upon him by Section
106 of the Evidence Act. In a case resting on circumstantial evidence if
the accused fails to offer a reasonable explanation in discharge of the
burden placed on him, that itself provides an additional link in the
chain of circumstances proved against him. ...........the respondent having
been seen last with the deceased, the burden was upon him to prove
what happened thereafter, since those facts were within his special
knowledge. Since, the respondent failed to do so, it must be held that he
failed to discharge the burden cast upon him by Section 106 of the
Evidence Act. This circumstance, therefore, provides the missing link in
the chain of circumstances which prove his guilt beyond reasonable
doubt."

40. In Harivadan Babubhai Patel Vs. State of Gujrat, (2013) 7 SCC 45, the
Supreme Court held as under:

"Another facet is required to be addressed to. Though all the

incriminating circumstances which point to the guilt of the accused had
been put to him, yet he chose not to give any explanation under Section
313 CrPC except choosing the mode of denial. It is well settled in law
that when the attention of the accused is drawn to the said
circumstances that inculpated him in the crime and he fails to offer
appropriate explanation or gives a false answer, the same can be
counted as providing a missing link for building the chain of
circumstances. (See State of Maharashtra V. Suresh [21]. In the case at
hand, though number of circumstances were put to the accused, yet he
 has made a bald denial and did not offer any explanation whatsoever.
Thus, it is also a circumstance that goes against him."

41. The appellant has made a futile attempt to show that he was not present
in the village on the fateful night. But he has not produced any evidence in
support of his plea.
42. In Mukesh Vs. State of NCT of Delhi, (2017) 3 Supreme 385, the Supreme
Court has held as under:

"Onus of presence of accused on the spot having been discharged by

prosecution, the burden to establish plea of alibi lies on accued-Plea of
'alibi' has to be weighed against positive evidence led by the
prosecution.-Instantly accused persons miserably failing to discharge
their burden of absolute certainty qua their appeal of 'alibi', the plea
appearing to be an afterthought and may be read as an additional
circumstance against them- Plea rightly rejected by courts below........It is
settled in law that while raising a plea of 'alibi', the burden suqarely lies
upon the accused person to establish the plea convicingly by adducing
cogent evidence."

43. Testing the facts and circumstances of the case on the anvil of law as
cited above, we are of the firm view that the learned trial court has rightly
convicted the appellant.
44. We find no reason to interfere with the judgment impugned which
deserves to be confirmed by us.
45. Both the appeals being devoid of merits are likely to be dismissed and
are accordingly dismissed.
46. The ordersheet shows that the whereabouts of appeallant are
untraceable.
47. The Chief Judicial Magistrate, Ghazipur, is directed to make all possible
efforts to arrest the appellant and to lodge him in jail to serve out the
sentence of life imprisonment.
48. A copy of this judgment be sent to the C.J.M., Ghazipur, by FAX for
immediate compliance.
49. The lower court's record along with a copy of the judgment be sent back
to the court concerned.
50. Shri Prashant Singh, learned Amicus Curiae, appearing for the appellant,
who has assisted this Court very efficiently, be paid Rs. Eleven thousand as
fee.