JUDGMENT
M.C. Jain, J.
1. The present reference and criminal appeal arise out of the judgment and order dated 30-1-1999 passed by Sri Satti Deen Special/Additional Sessions Judge, Mirzapur in Sessions Trial No. 85 of 1995, Chhannu Lal Nikhaddi alias Vishwanath Miyane alias Shiv Nath sons of Gopi and Kamil alias Pagli widow of Mannu Lal resident of Solipi, police station Chunar, District Mirzapur were tried in the said Sessions Trial for triple murder of Pavitri Devi alias Munni and her two daughters, namely, Km. Vijay Laxmi aged about 4 or 5 years and Km. Parwati aged about 4 months. Pavitri Devi was the wife of accused Chhannu Lal. Accused Kemli alias Pagli is the wife of Late Munnu Lal brother of Nikhaddi alias Vishva Nath and Miyana alias Shiv Nath. Accused Nikhaddi alias Vishwa Nath, Miyana alias Shiv Nath and Kamli alias Pagli were acquitted. However, learned Additional Sessions Judge convicted the accused Chhannu Lal under Sections 302 and 201, IPC. He has been awarded death sentence for the offence punishable under Section. 302, IPC and life imprisonment under Section. 201, IPC. The Court below has made this reference under Section. 366 Cr.P.C. for the confirmation of the death sentence, whereas accused Chhannu Lal has preferred the instant appeal against his conviction and sentences.
2. The incident allegedly took place in between the night of 29/30-9-94. The salient features of the case as emerging from the first information report and evidence adduced in the Court may be narrated thus : The deceased Parwati Devi daughter of Luttur Ram P. W. 2 resident of village Payagpur Police Station Chunar, had been married with accused-appellant Chhannu Lal 8 or 9 years before the incident, She had given birth to two daughters, namely, Vijay Laxmi and Parwati who were aged about 4 or 5 years and 4 months respectively at the time of incident, Earlier to the incident, Chhannu Lal used to work in Saudi Arabia, but had returned therefrom about two years before the incident and has not gone there again, while in Saudi Arabia he used to send money to his wife Pavitri Devi and had even purchased land in her name. He developed illicit relations with Kamli alias Pagli widow of his late brother Munnu Lal who had a son also named Sanjay, Pavitri Devi used to object to the illicit relation of her husband Chhannu Lal with his sister-in…aw Kamli alias Pagli and there used to be bickerings on this account about two months before the incident, she had gone to the house of her parents and had complained of it to them as stated by her brother Udai Narain P.W. 1. she had even expressed apprehension to her life and to that of her daughters on this score. She did not want to return to her Sasural, but her mother and aunt had made her to agree to return back to her Sasural and Chhannu Lal had fetched her to his house in village Shilpi.
3. On 30-9-94 at about 8 a.m. Udai Narain P.W. 1 (brother of the deceased Pavitri Devi) and Luttur Ram P.W. 2 (father of deceased) got information in their village that for greed of money and because of illicit relations between Chhannu Lal and his sister-in…aw Kamli alias Pagli he (Chhannu Lal) with his family members had committed murder of Pavitri Devi and of her two daughters and had caused to disappear their dead bodies. Luttur Ram P.W. 2 (father of the deceased) went to his daughter’s Sasural Shilpi on getting such information but found that the house of his son-in…aw Chhannu Lal was locked and all the accused had disappeared. He than set out for search Udai Narain (brother of the deceased Pavitri Devi) and Raj Kumar P.W. 5 (bahnoi of Udai Narain) with certain others also set out for village Shilpi on 30-9-94 in another group. On reaching village Shilpi, they found accused to be present there and made enquiries from Chhannu Lal accused about Pavitri Devi and her two daughters. At first, he allegedly gave out that they died of cholera and their dead bodies had been disposed of in river Ganges. When they doubted his such statement as to how all the three suffered from cholera simultaneously and as to why he did not inform them about it. Chhannu Lal accused changed his statement that Pavitri Devi had burnt her two daughters and had committed suicide by burning her also and that their dead bodies had been disposed of in river Ganges when his such statement too was doubted by them he as well as Miyana alias Shiv Nath Nikhaddi alias Vishwanath and Kamli made an extra-judicial confession that they had murdered them and they could do whatever they liked.
4. It so happened that the dead body of a lady was discovered from the well of Ram Murti Upadhyay in village Khanpur on 1-10-1994 by Village Chaukidar, Mansa Ram P.W. 6. He orally passed over information in this behalf at Police Station Chunar on 1-10-94 at 3-15 p.m. S.I. Raj Vijai Singh P.W. 8 proceeded to the spot on 1 -10-91 itself. The dead body was taken out from the well. It was identified to be that of Pavitri Devi by Ganga Ram P.W. 4, Harbans and others. Ganga Ram is the uncle of Luttur Ram P.W. 2. there were certain injuries on the dead body of the deceased. The inquest report was prepared by S.I. Raj Vijay Singh P.W. 8 and it was sent for post-mortem.
5. The post-mortem over the dead body of the deceased Pavitri Devi was conducted by Dr. Virendra Kumar Dubey P.W. 7 on 2-10-94 at 3 p.m. The deceased was aged about 25 years and about four days had passed since she died. The following ante-mortem injuries were found on her person :
1. A stab would 25 cm. x 1 cm. x 15 cm. deep on the left scapula clavicular fossa.
2. An incised wound 8 cm. x 3 cm. x 4 cm. deep on front of right elbow.
3. Lacerated wound 15 cm. x 5 cm. x 5 cm. deep on left thigh front aspect.
4. An incised wound 20 cm. x 15 cm. on abdomen-vertical stomach and intestines protruding out.
6. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.
7. The dead bodies of infant daughters of Pavitri Devi, namely, Vijay Laxmi and Parwati Devi could not be recovered.
8. It was on 2-10-1994 at 12-20 p.m. that first information report of the incident was lodged by Luttur Ram P.W. 2 at Police Station Chunar. A case under Section. 302/201, IPC was registered against all the four accused. The investigation followed which was concluded by Inspector J. P. Mishra P.W. 10 and, ultimately they were charge-sheeted and tried culminating into the present judgment.
9. One Raja Ram P.W. 3 was examined by the prosecution on the point of having seen accused Chhannu Lal, Nikhaddi and Miyama carrying the dead body of a lady on a tractor on 30-9-1994 at about 5 a.m. on Pakka road in village Khanpur but he turned hostile and did not testify about said factum.
10. It is also alleged that on 2-10-1994 at 8-10 a.m. the accused Chhannu Lal had made a report at Police Station Chunar (Ex Ka 1) to the effect that in the night of 29-9-1994 his wife and two daughters got burnt and died in his house while sleeping, At that time, he was sleeping outside his house. He awoke on hearing shrieks of his daughters. He went inside the house. However, the door was closed from inside and it caused some delay. When he entered inside after breaking open the door, he found his wife and daughters to be burning. He somehow extinguished the fire. His wife and one of his daughters died at the spot owing to burning. The other daughter was taken to a Doctor at Khanpur, but she also died after an hour of giving medical aid. An entry regarding this report allegedly lodged by accused Chhannu Lal was made by H.C. Ram Bachan Yadav P.W. 9 in G.D. No. 15.
11. The defence of the accused was of denial. The accused-appellant Chhannu Lal (who has been convicted) denied his alleged illicit relationship with his sister-in…aw Kamli alias Pagli. According to him, his two daughters were in their nanihal. He pleaded false implication, but no evidence was adduced by him in defence.
12. On appraisal of the evidence adduced by the prosecution, the Court below did not find the case to be established against Nikhaddi alias Vishva Nath, Miyana alias Shiv Nath and Kamli alias Pagli. He however, found the guilt of the accused Chhannu Lal to be established to the hilt. Holding it to be a case of rarest of rare category, he awarded death sentence to him under Section. 302, IPC. The matter is now before this Court.
13. We have heard Sri P. N. Mishra learned counsel for the accused-appellant Chhannu Lal in support of the appeal and learned A.G.A. in opposition thereof. We have also carefully gone through and pondered over the evidence adduced in the case the submission from the side of the accused-appellant is that the Court below has convicted and sentenced the accused-appellant merely on suspicion without any tangible proof regarding his alleged guilt. Obviously, it is a case of circumstantial nature and evidence. In our anxiety to reach right conclusion we intend to deal with different aspects of the case in the succeeding discussion.
14. At first comes the question of motive. As is well known motive is not evidence in a case. It is not substitute of the evidence required to prove someone guilty of some offence. In the case at hand, the motive for the commission of this crime imputed against the accused-appellant Chhannu Lal is that be had developed illicit relations with his sister-in…aw Kamli alias Pagli to which his wife Pavitri Devi deceased used to object. Another motive assigned to him is that of greed viz. he wanted to deprive her of the money she had accumulated in her account (which he used to send her while he was in Saudi Arabia) and of the land that had been purchased in her name. But the point of the matter is that in any case, the accused-appellant would have had no grudge whatsoever against his infant daughters Vijay Laxmi aged about 4-5 years and Parwati aged about 4 months. It is not the prosecution case that he doubted the fidelity of his wife Pavitri Devi or suspected that he had not fathered the two daughters named above. It is a universal reality that one has greatest affection for his offsprings. The strange feature of the case is that the dead bodies of infant daughters of the accused-appellant could not at all be recovered. It could also not be said with any amount of certainty whether they had actually been killed or Kidnapped and concealed by someone. The accused-appellant Chhannu Lal could have nothing to grudge against his own two infant innocent daughters to our mind, the motive assigned by the prosecution against the accused-appellant Chhannu Lal does not fit in the situation.
15. The second important aspect of the case is that there is no evidence that the accused-appellant Chhannu Lal was last seen with deceased Pavitri Devi. In other words the prosecution has not led any evidence that they were last seen together at particular point of time or date earlier to the incident which is said to have taken place in between the night of 29/30-9-1994. Indeed, Raja Ram P.W.3 had been examined in an attempt to supply the link of chain of circumstantial evidence that the accused-appellant with his two brothers (acquitted) had been seen carrying the dead body of a lady on a tractor in the morning of 30-9-1994, but he turned hostile and did not tender evidence about the said factum. The inavitable result is that the alleged link is lost.
16. It may also be related here that the marriage of Pavitri Devi having taken place with the accused-appellant Chhannu Lal 8 or 9 years before the incident (more than seven years), there can be no question of the burden shifting on him. The guilt of the accused-appellant was required to be proved by the prosecution by cogent and convincing evidence without raising any presumption of guilt against the accused-appellant.
17. It is also an important noticeable fact that the dead body of Pavitri Devi was not recovered from the house of the accused-appellant. Had it been recovered from his house it could be deemed to be a link in the chain of circumstances speaking and going against him. The truth of the matter is that the dead body was recovered from a well of another village Khanpur of course there were certain injuries on the dead body of the deceased found at the time of her post-mortem detailed earlier and it admits of no doubt that she was the victim of violence. After having been inflicted injuries, her dead body had been dumped in a well. But that alone could not be sufficient to prove the accused-appellant to be guilty that actually he was the author of the said crime.
18. The attempt of the prosecution to rely on the report Ex. Ka 17 allegedly lodged by the accused-appellant Chhannu Lal at Police Station Chunar on 2-10-1994 at 8-10 a.m. and to draw support therefrom cannot succeed. It cannot be relied upon as a chain of circumstantial evidence against him that he was trying to misdirect the investigation by presenting a picture of fire having taken place in his house in the night of 29-9-1994 and his wife and two daughters having died as a consequence thereof. We note that the accused-appellant was not even confronted with the said document in his statement under Section. 313 Cr.P.C. The authenticity of this document is doubtful that it was actually lodged by the accused-appellant Chhannu Lal. This typed report contains his thumb mark where as he put his signatures on his statement under Section. 313, Cr.P.C. which appear to be smooth. Moreover, the report contains an order of CO. dated.2-10-1994 to the Inspector In-charge of Police Station Chunar to this effect. “Kripya Avashyak Karyawahi Karen”. It indicates as if it was presented before the CO. The statement of Head Constable Ram Bachan Yadav, P.W. 9 shows that it was brought at the Police Station by the accused-appellant himself. It is also a fact that earlier thereto the dead body of Pavitri Devi had been recovered from a well in village Khanpur on 1-10-1994 regarding which the firat Investigating Officer S.I. Raj Vijai Singh P.W. 8 had even prepared the inquest report and sent the dead body for postmortem. Under these circumstances, it sounds to be somewhat incongruous that the accused-appellant Chhannu Lal would have presented the report Ex. Ka. 17 at the Police Station on 2-10-1994 at 8-10 a.m. and would have been allowed to go away freely from the police station. We note from the statement of Head Constable Ram Bachan Yadav, P.W. 9 that the inspector was present at the police station on 2-10-1994. So, to come to the point, no support can be derived in favour of the prosecution case from the alleged report Ex. Ka-17 which, as we have said, is of doubtful authenticity.
19. The last plank of the prosecution evidence in the case is the alleged extra-judicial confession made by the accused-appellant Chhannu Lal to his wife’s brother Udai Narain P.W. 1 and his wife’s Bennoi Raj Kumar P.W. 5 on 30-9-1994. We are of the considered opinion that no reliance could be placed on the alleged extra-judicial confession. It should first be pointed out that there was hardly any compelling circumstance for the accused-appellant to make any extra-judicial confession before the said two persons. It rubs against the natural and probable human conduct that without any compelling reason he would have made the alleged extra-judicial confession before these two witnesses. Moreover it is clear from the testimony of Udai Narain P.W. 1 (brother of the deceased Pavitri Devi) and Luttur Ram P.W. 2 (father of the deceased Pavitri Devi) that earlier to the lodging of the first information report by Luttur Ram P.W. 2 on 2-10-1994 at 12-20 p.m. he had met Udai Narain P.W. 1 (after the making of the alleged extra-judicial confession to him by the accused Chhannu Lal). Luttur Ram must have been told about the most important fact of the alleged extra-judicial confession allegedly made to Udai Narain P.W. 1 and Raj Kumar P.W. 5 by the accused-appellant. The clear statement of Udai Narain P.W. 1 is that in the morning of 2-10-1994 he had disclosed to his father as to what was stated to him by the accused-appellant. But there is not even a whisper in the first information report as to this alleged extra-judicial cenfession. We are of the opinion that the factum of the alleged extra-judicial confession would have found place in the first information report under the above related circumstances, had it actually been made by the accused-appellant to Udai Narain P.W. 1 and Raj Kumar P.W. 5. The result effect is that it is not at all possible to place any reliance on the alleged extra-judicial confession.
20. As regards a case based on circumstantial evidence we should refer with advantage to the law laid down by the Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 : 1984 Cri LJ 1738. Their Lordships enunciated the following principle :
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.
21. In the said case, reference was also made to the following observations of a decision in Shiwaji Sahebrai v. State 1973 (2) SCC 793 : AIR 1973 SC 2622 :
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.
22. Applying the above principles to the present case we are of the definite opinion that the circumstances relied upon by the prosecution to prove the accused-appellant Chhannu Lal to be guilty do not form a complete chain of conclusive nature excluding every hypothesis excepting that the accused-appellant committed this crime. Actually, the case has not travelled from the range of suspicion to the realm of certainty. The conviction of the accused-appellant Chhannu Lal is simply based on suspicion. It goes without saying that suspicion howsoever strong is not a substitute of proof. The Court below convicted and sentenced the accused-appellant Chhannu Lal without an indepth analysis of the overall impact of the circumstantial evidence brought before it. The appeal shall succeed.
23. Before taking leave, we record that we have noted with dismay that Sri Satti Deen, Additional Sessions Judge Mirzapur who delivered the impugned judgment, even awarded life imprisonment to the accused-appellant under Section. 201, IPC whereas the maximum punishment provided for the said offence is seven years. It is crystal clear that he did not think it worthwhile to verify by reference to the relevant provision of the Indian Penal Code as to what is the punishment provided for the offence under Section. 201, IPC. We record our disapproval of such carelessness on the part of the said Presiding Officer and we direct it to be communicated to him by the Registry so that he does not commit such a mistake in future.
24. In final conclusion we allow this appeal and set aside the judgment and order in question passed by the lower Court the reference made by the lower Court under Section. 366, Cr.P.C. is rejected. The accused-appellant Chhannu Lal is acquitted. He is in jail. He shall be set at liberty forthwith unless required in any other connection.
25. The observations made in penultimate paragraph of this judgment shall be communicated by the Registry to Sri Satti Deen (the then Special/Additional Sessions Judge Mirzapur) after locating his present place of posting.
26. Let a copy of this judgment along with the record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively.