Supreme Court of India
MUNNA KUMAR UPADHYAYA @ MUNNA UPADHYAYAversusTHE STATE OF ANDHRA PRADESH THROUGH PUBLIC PROSECUTOR, HYDERABAD, ANDHRA PRADESH
- Citation
- 2012 INSC 211
- Decided
- 8 May 2012
- Disposal
- Dismissed
- Bench
- A K PATNAIK
Holding
The conviction of the appellant is upheld as the chain of circumstantial evidence, corroborated by fingerprint, identification parade, and adverse inference from his denial, proves his guilt beyond reasonable doubt.
Summary
The appellant, Munna Kumar Upadhyaya, was convicted for the murder of a railway official and his family, based on a complex web of circumstantial evidence, forensic findings, fingerprint matches, and extra‑judicial confessions. The prosecution proved the chain of events through 49 witnesses, forensic reports, recovered stolen jewellery, and the presence of the accused’s fingerprints on the almirah. The High Court had upheld the conviction, and the appellant challenged the reliability of fingerprint evidence, the delay in the test identification parade, and the admissibility of extra‑judicial confessions, also arguing that the circumstantial case was weak. The Supreme Court held that the cumulative evidence, including the adverse inference drawn from the appellant’s denial under Section 313 CrPC, satisfied the requirement of proof beyond reasonable doubt, and rejected the appellant’s contentions. Consequently, the conviction and life sentence were affirmed.
Issues considered
- The adequacy of circumstantial evidence to establish guilt beyond reasonable doubt.
- The admissibility and reliability of fingerprint evidence despite alleged procedural lapses.
- The effect of delay in conducting the test identification parade on its evidentiary value.
- The admissibility and evidentiary weight of extra‑judicial confessions.
- The propriety of drawing adverse inference from the accused’s denial under Section 313 CrPC.
Legislation cited
- Arms Acts. 25(1)(a), s. 27(1)
- Code of Criminal Procedure, 1973s. 313, s. 428
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 201, s. 302 r/w 34, s. 411, s. 435
Subjects
circumstantial evidencefingerprint evidenceidentification paradeextra‑judicial confessionSection 313 CrPCadverse inferencemurderIPC 302
Judgment
[2012] 6 S.C.R. 611
MUNNA KUMAR UPADHYAYA @ MUNNA UPADHYAYA A
v.
THE STATE OF ANDHRA PRADESH THROUGH PUBLIC
PROSECUTOR, HYDERABAD, ANDHRA PRADESH
(Criminal Appeal No. 1316 of 2008)
B
MAY 8, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.)
Penal Code, 1860 - ss.302 rlw 34, 201, 411 and 435 -
Murder - Of Railway Official and three members of his family C
(wife, son and daughter) inside their residence (bungalow) -
Almirah in deceased's bedroom broken open and cash and
jewellery taken away - Dead bodies transporled out in a car
which was later on doused with petrol and set on fire - Five
accused - A-1 was domestic servant of the Railway Official - D
A-2 is nephew of A-1 - Trial courl convicted all the accused -
High Courl acquitted A-3 and A-4 but sustalhed the conviction
of A-1, A-2 and A-5 - Only A-2 pursued furlher appeal before
Supreme Courl - Held: To the entire occurrence, there was
no eye-witness but the attendant circumstances were fully E
established by the prosecution - The forensic experl as well
as the neighbours and the Investigating Officers had seen the
blood stained walls, the floor, having been washed with phenyl
and acid, which was sticky and various incriminating items
seized in presence of the witnesses after confessions of the F
accused - There was no occasion for so many witnesses to
falsely depose against the accused - Statement of these
witnesses seen in conjunction with the circumstance that on
the incident date, the accused had given different and
conflicting versions to different persons (servants and G
neighbours) at different times, either for not permitting their
entry into the house, or claiming that the family had gone out,
fully supporl the case of the prosecution - Presence of finger
prints of A-2 in the house and parlicularly on the almirah in
611 H
612 SUPREME COURT REPORTS [2012] 6 S.C.R.
A the bedroom of the deceased, remained unexplained - A/so,
PW-12 (the sole surviving daughter of the Railway Official)
identified gold ornaments recovered from possession of
accused persons as belonging to her deceased mother - With
the help of the prosecution witnesses, the presence of the
B accused in the bungalow, their intention of committing such
heinous crime, the manner in which the accused persons had
destroyed the evidence, i.e., the car, dead bodies and blood
stained cloths of the deceased and the accused themselves,
from where and how they had procured the incriminating
c articles which they used in the crime, like knife, petrol etc. and
finally the conduct of the accused prior to and after
commission of the crime were established by the prosecution
- Recovery of incriminating articles, cash· and jewellery
belonging to the deceased, the finger prints of the accused
0 and the false stories given by the accused to different persons
who came to the bungalow of the deceased on the incident
date, to ensure that none of them enter the house of the
deceased was unequivocally established - Conduct of A-2
also tilts the case in favour of the prosecution - In response
E to a question relating to the injuries that he had suffered, A-2
opted to make a denial - He not only failed to explain his
conduct, in the manner in which every person of normal
prudence would be expected to explain but even gave
incorrect and false answers - Conviction of A-2 (appellant)
accordingly confirmed u/ss.302 rlw 34, 201, 411 and 435 as
F the chain of circumstances undoubtedly point towards his guilt.
Code of Criminal Procedure, 1973 - s.313 - Statement
under - Purpose of - Held: Is to serve a dual purpose, firstly,
to afford to the accused an opportunity to explain his conduct
G and secondly to use denials of established facts as
incriminating evidence against him - If an accused gives
incorrect or false answers during the course of his statement
uls.313 CrPC, the Court can }iraw an adverse inference
against him.
H
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE 613
OF A.P. THR. PUB. PROSECUTOR
Evidence - Information given by injured accused to doctor A
in regard to circumstances leading to his injuries -
Admissibility of - Held: History given to doctor by injured
accused at the time of treatment would not be strictly an extra
judicial confession, but would be a relevant piece of evidence.
Evidence - Test identification parade - Delay in holding
B
identification parade - Effect - Plea of accused that the test
identification parade was held after considerable unexplained
delay, that too, when the photographs of the accused had
been published in the newspapers and thus, the courts could
not have relied upon such identification parade in returning C
a finding of guilt against the accused - Held: Delay per se
cannot be fatal to the validity of holding an identification
parade, in all cases, without exception - In the instant case,
nothing on record to say that the photographs of the accused
were actually printed in the newspaper - Even if that be so, D
they were printed months prior to the identification parade and
would have lost their effect on the minds of the witnesses who
were called upon to identify an accused - It cannot be said
that merely because of delay, the Court should have rejected
the entire evidence of identification of the accused. E
Evidence - Circumstantial evidence - Appreciation of -
Held: A case of circumstantial evidence is primarily
dependent upon the prosecution story being established by
cogent, reliable and admissible evidence - Each
F
circumstance must be proved like any other fact which will,
upon their composite reading, completely demonstrate how
and by whom the offence had been committed.
Evidence - Confession - Extra-judicial confession -
Admissibility and evidentiary value of - Held: Extra-judicial G
confession must be established to be true and made
voluntarily and in a fit state of mind - The words of the
witnesses must be clear, unambiguous and should clearly
convey that the accused is the perpetrator of the crime - The
H
614 SUPREME COURT REPORTS [2012] 6 S.C.R.
A extra-judicial confession can be accepted and can be the
basis of conviction, if it passes the test of credibility - Extra-
judicial confession should inspire confidence and the court
should find out whether there are other cogent circumstances
on record to support it.
B
'B', a Railway official, was living in a bungalow - the
official residence allotted to him, along with his family
members. A-1 was a domestic servant of 'B' and living
in the servant quarters. He allegedly had a serious
grudge against the wife of 'B' and therefore hatched a
C plan with his nephew, A2, and two others A-3 and A-4 to
kill the entire family of 'B'.
The case of the prosecution was that on the incident
date, after 'B' ha~ left for his office in the morning, A-1
D allowed the entry of A-2, A-3 and A-4 into the bungalow,
and thereafter the four accused, armed with knives and
a pistol, killed B's son, wife ['P'], and daughter, one by
one and thereafter also broke open the almirah in the
bedroom and took out cash and jewellery; that in the
E process of killing 'P', A-3 himself got injured whereafter
A-1, A-2 and A-4 got him admitted to a hospital and
returned to the bungalow and later in the evening they
I
killed 'B' when he came back from office and that
subsequently, on instructions of A-1, his sister A-5
F cleaned the bungalow flpor with phenyl and acid. It was
alleged that' thereafter the accused persons dumped the
dead bodies along with blood stained clothes into a car
which was transported out of the premises by A-1 and
A-2 and parked near the railway track whereupon A-2
G purchased petrol from petrol pump and then he and A-1
set the car along with the dead bodies on fire.
The trial Court convicted all the five accused- A-1 ul
s 302, 201, 435 and 411 IPC and Section 25(1)(a) and 27(1)
of the Arms Act; A-2 u/s. 302 r/w s.34, 201, 435 and 411
H
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 615
OF AP. THR. PUB. PROSECUTOR
IPC; A-3 u/s. 302 r/w s.34 and 411 IPC and Section 25(1)(a) A
and 27 of the Arms Act; A-4 u/s.302 r/w s.34 and 201 and
411 IPC and A-5 u/s.201 and 411 IPC. While A-1 was
sentenced to death, A-2 to A-4 were sentenced to life
imprisonment and A-5 was sentenced to 3 years R.I. The
High cburt acquitted A-3 and A-4 but sustained the B
conviction of A-1, A-2 and A-5. The death sentence
awarded to A-1 was however committed to life
imprisonment by the High Court. A-5 did not prefer any
appeal before this Court. The State also did not prefer any
appeal before this Court against the acquittal of A-3 and c
A-4. A-1 had filed an appeal challenging the judgment of
the High Court, but the same was dismissed at the SLP
stage itself, as being withdrawn.
Only A-2 (appellant) pursued further appeal before
this Court. He challenged his conviction on various D
grounds, viz.: a) that the case being one of circumstantial
evidence, the entire evidence was of very weak nature
and the prosecution had not been able to establish the
chain of circumstances undoubtedly pointing only
towards his guilt; b) that the High Court had entirely E
based its order of conviction on the finger prints found
at the place of occurrence but there was no evidence as
to how the finger prints of the accused persons were
collected by the Police and how they were dispatched to
the forensic laboratory for purposes of comparison; the F
vital link in the evidence relating to finger prints was
missing and as such, the judgment of the High Court was
liable to be set aside; c) that the test identification parade,
firstly, was not held in accordance with law and secondly,
it was held after considerable unexplained delay, that too, G
when the photographs of the accused had been
published in the newspapers and thus, the courts could
not have relied upon the identification parade in returning
a finding of guilt against the accused and d) lastly, that
H
616 SUPREME COURT REPORTS [2012] 6 S.C.R.
A the acquittal of A-3 and A-4 by the High Court on merits
was clear indication that the prosecution had failed to
prove its case beyond reasonable doubt and thus, the
High Court ought to have acquitted the appellant as well.
Dismissing the appeal, the Court
B
HELD: 1. The present case is one of circumstantial
evidence and there is no witness to the commission of
crime. Thus, there is a definite requirement of law that a
heavy onus upon the prosecution be discharged to prove
C the complete chain of events and circumstances which
will establish the offence and would undoubtedly only
point towards the guilt of the accused. To prove this chain
of events, prosecution had examined as many as 49
witnesses. This included the persons who were working
D at the bungalow, neighbours, the worker at the petrol
pump from which Accused no.2 purchased petrol, the
doctors, forensic experts, fingerprint expert and the only
surviving member of the family i.e., the other daughter of
'B', PW12. This ocular evidence is in addition to the
E documentary and expert evidence brought by the
prosecution on record. A case of circumstantial evidence
is primarily dependent upon the prosecution story being
established by cogent, reliable and admissible evidence.
Each circumstance must be proved like any other fact
F which will, upon their composite reading, completely
demonstrate how and by whom the offence had been
committed. [Para 10] [635-A]
Sana tan Naskar and Anr. v. State of West Bengal (2010)
8 sec 249 - referred to.
G
2.1. The identity of all the deceased and the fact that
they were residents of the bungalow in question, that
accused Nos. 1 and 5 were living in the premises and that
accused No. 2 was nephew of accused No. 1 have been
H fully established on record by the statements of PW-3 to
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 617
OF AP. THR. PUB. PROSECUTOR
PW-8 and PW-12, the daughter of 'B'. In fact, there can A
be no doubt as to the fact that the accused No. 1 was
working as domestic servant of 'B' and living in the
servaht quarters. The reason for commission of crime, as
per the case of the prosecution, was the persistent
grudge of accused No. 1 towards 'P'. All the accused B
planned and then killed all the four members of the
family, one by one. They committed the crime in a most
brutal manner by cutting the throat of each one of the
deceased. Of course, in the process, when accused No.
3 wanted to shoot 'P' in the scuffle, he suffered the gun c
injury and later they killed 'P' by causing a knife injury at
her throat. [Paras 11, 13 and 14) [638-C-D, H; 639-A-C]
2.2. To the entire occurrence, there is no eye-witness
but the attendant circumstances have fully been
established by the prosecution. The forensic expert as D
well as the neighbours and the Investigating Officers had
seen the blood stained walls, the floor, having been
washed with phenyl and acid, which was sticky and
various incriminating items seized in the presence of the
witnesses after confessions of the accused. [Para 15] E
[639-C-D]
2.3. Furthermore, PW-8, the watchman, clearly stated
that when he had come to the bungalow, it was accused
No. 1 who did not permit him to go inside the house and
F
asked him to wait outside at the main gate and then, had
even sent him to get the sweets from the market, which
he brought and gave to accused No.5. Similarly the
carpenter, PW-23, who had come to repair the wooden
bedsteads was again not allowed admission into the
house and was sent away to work outside, on the pretext G
that 'P' was not feeling well and did not want to be
disturbed. PW-3, a neighbour, identified accused No.1,
accused No.2 and accused No.5 as he had seen them in
the bungalow on various occasions. PW-4 also stated
that she was working as a maid servant for sweeping and H
618 SUPREME COURT REPORTS [2012) 6 S.C.R.
A mopping the floor of the bungalow and on the fateful day,
was not permitted by accused No.1 to do her routine job.
She found that the rear door from where she used to enter
the house normally had been closed from inside and after
she called for the accused, he asked her to go away
B because 'P' was not feeling well. On similar lines were the
statements of PW5 and PW6. The statement of PW-6, in
fact, completely brings out the involvement of accused
No. 1 in the commission of the crime. [Para 16) [639-E-H;
640-A-B]
c 2.4. Besides all this is the statement of PW-12, the
sole surviving member of the victim family, which has fully
corroborated the statement of all these witnesses, as well
as that of neighbour PW3. She was travelling from Delhi
to Secunderabad by train. A number of times, she claims
D to have called up the numbers of her father and other
family members, but none responded. Upon this, she had
rang up PW-3 to find out what had happened. It was only
on her arrival at Secunderabad that she came to know
about the unfortunate event where her entire family had
E been murdered by the accused. Accused had
disappeared from the premises in question. Prior thereto,
he had even told the neighbour, who made enquiry in
furtherance to the phone calls by PW-12,that 'B' and the
family had gone out in the car on the evening of 17th
F March, 2003, but had never returned back. There is no
occasion for so many witnesses to depose falsely
implicating the accused in the commission of crime. The
statement of these witnesses seen in conjunction with the
circumstance that the accused had given different and
G conflicting versions to different persons (servants and
neighbours) at different times, either for not permitting
their entry into the house, or claiming that the family had
gone out on 17th March, 2003, fully support the case of
the prosecution. [Para 17) [640-F-H; 641-A-C)
H 2.5. PW 25 is again a very material witness, who has
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 619
OF AP. THR. PUB. PROSECUTOR
proved the involvement of accused. No. 2 in the A
commission of the crime. According to this witness, he
was working as a helper in the University Filling Station
petrol pump. He knew only accused No.2. On the evening
of 17/18th March, 2003, at about 12.30 - 1.00 a.m. accused
No. 2 had come to the petrol pump and asked for 10 litres B
of petrol. Accused No. 2 was carrying a plastic container
for that purpose. Upon enquiry from this witness, he told
this witness that he needed the petrol because his family
was travelling in a car and the petrol in the car had
finished and on this pretext, he purchased 10 litres of c
petrol. This witness duly identified MO 74, the plastic
cane in which he had given petrol to the accused. This
petrol, according to the prosecution, had been used in
burning the car as well as the dead bodies of the
deceased persons. PW36, the forensic expert collected
0
various items from the scene of the car. From the burnt
clothes, he reported that they bore traces of flammable
material. Smell of petrol was also present at the scene
and this fact stood confirmed by the statement of PW48,
the Investigating Officer. Thus, it is clear that accused No. E
2 had taken the petrol from the petrol pump and· used it,
along with other accused, for the purpose of putting the
car and the dead bodies of the deceased persons on fire.
[Para 18] [641-D-H; 642-A-B]
2.6. PW45, another forensic expert, had found human F
blood in the rooms where the crime was committed and
also on the items which were sent to him for his opinion.
The presence of human blood on these items, including
the clot.hes which were sent for serological examination,
cleari'y indicates that in that house, murder of some G
human beings had been committed. Identities oj those
human beings stands completely established not only by
expert evidence but by the evidence of the neighb9.urs
also. [Para 19] [642-B-D]
H
620 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 2. 7. The ballistics expert PW-37 expressed his
opinion that the cartridges recovered had been fired from
the recovered pistol. The cartridges were recovered from
the bungalow while the pistol and live cartridge was
recovered in furtherance to the confessional statements
B made by accused Nos.2 and 3. [Para 20) [642-D-E]
2.8. PW-38, the finger print expert had visited the site
and lifted some chance finger prints on the steel almirahs
from near the inner lock door and another set of finger
C prints from the rear side of the bathroom. He clearly stated
that the chance finger prints matched with the finger
prints of accused Nos.1 and 2. The attempt on behalf of
the accused to object to the evidence of the finger prints
on the ground that the investigating officer has not told
in his examination-in-chief that he had taken the finger
D prints of the accused and sent them to the expert does
not carry much weight in view of the documentary, ocular
and expert evidence. It was expected of the Investigating
Officer to make a statement in that behalf, but absence of
such statement would not weigh so much against the
E prosecution that the court should be persuaded to reject
the evidence of PW38 along with the clinching evidence
of Ext. P-52, P-72 and P-73 respectively.· Equally without
merit is the submission on behalf of the appellant that the
finger print could be there upon the almirah in the normal
F course of business, as accused No. 1 was the domestic
servant working in the bungalow. What is important is
that the presence of finger prints of accused No. 2 found
in the house and particularly on the almirah in the
bedroom of the deceased, remain unexplained and
G secondly, no attempt was made by any of the accused
persons to take a stand to explain their conduct. Further,
lifting of chance finger prints and on comparison being
found to be matching with the sample finger prints of the
accused, taken by the Police, is not the only piece of
H evidence. There is corroborating evidence of the
MUNNA KUMAR UPADHYAYA@MUNNA UPADHYAYA v. STATE 621
OF AP. THR. PUB. PROSECUTOR
prosecution witnesses on the one hand, and on the other, A
evidence of PW-12, who identified the gold ornaments,
which were stolen by the accused from the almirah, as
belonging to her deceased mother ('P') and which were
recovered from the possession of accused persons. The
prosecution has by other evidence, clearly been able to s
establish the physical contact between the accused and
the articles within the almirah, and therefore, the almirah
door also. [Paras 22, 23, 24, 26, 28] [642-H; 643-A-D, G-H;
644-A-C, F-H; 645-F-G]
Chandran @ Surendran and Anr. v. State of Kera/a 1991 C
Supp. (1) SCC 39 - distinguished.
B.A. Umesh v. Registrar General, High Court of
Karnataka (2011) 3 sec 85: 2011 (2) SCR 367 - relied on.
D
3. As far as the deceased persons are concerned,
because of the burnt condition of bodies, there could be
no other evidence of cause of death except identification
of the deceased persons which has already been
established by the prosecuti.on. The accused persons, E
particularly, accused Nos. 1, 2 and 3 suffered physical
injury. Accused No.3 even suffered bullet injury which
has been proved on record by the statement of PW-46,
as also PW-33 and PW-43, all doctors. PW-18, who was
running a clinic stated that he knew the accused and on
17th March, 2003, the accused persons had come to his F
residence and informed him that accused No.3 had
suffered injury on account of a fall due to drunken state.
After examining accused No.3, he found two bullet gun
shots on the left leg of accused No.3, who was also in
intoxicated condition. They were sent to hospital for G
treatment and they paid money for treatment Thereafter,
leaving Accused No. 3 in the hospital, the rest of the
accused went missing. These are the circumstances
which connect the accused persons with the crime. [Para
29] [645-G-H; 646-A-D] H
622 SUPREME COURT REPORTS [2012] 6 S.C.R.
A 4.1. The High Court declined to. rely upon any of the
extra judicial confessions made by the accused persons
to various other persons.The High Court was right in not
relying upon such confessions, but it ought to have
rejected only the part inadmissible in accordance with the
B provisions of Section 27 of the Indian Evidence Act, 1872.
The statements in so far as they concern, the use of
various articles in commission of crime and recovery of
such articles and stolen items, would form a valid and
admissible piece of evidence for the consideration of the
c court. The history given to the doctor at the time of
treatment would not be strictly an extra judicial
confession, but would be a relevant piece of evidence,
as these documents had been prepared by PW33 (the
doctor who had treated the accused for their injuries) in
the normal course of her business. Even the accused do
0
not dispute that they were given treatment by the doctor
in relation to these injuries. Thus, it was for the accused
to explain this aspect. [Paras 30, 33, 34) [646-D; 647-A-D]
4.2. Extra-judicial confession must be established to
E be true and made volunta"rily ·and in a fit state of mind.
The words of the witnesses must be clear, unambiguous
and should clearly convey that the accused is the
perpetrator of the crime. The extra-judicial confession can
be accepted and can be the basis of conviction, if it
F passes the test of credibility. The extra-judicial confession
should ,inspire confidence and the court should find out
whether there are other cogent circumstances on record
to support it. [Para 42) (650-B-C]
G Ba/winder Singh v. State of Punjab 1995 Supp. (4) SCC
259: 1995 (5) Suppl. SCR 10; Pakkirisamy v. State of TN.
(1997) 8 SCC 158; Kavita v. State.of TN. (1998) 6 SCC 108:
1998 (3) SCR 902; State of Rajasthan v. Raja Ram (2003) 8
SCC 180: 2003 (2) Suppl. SCR 445; Aloke Nath Dutta v.
H State of WB. (2007) 12 SCC 230: 2006 (10) Suppl. SCR
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 623
OF AP. THR. PUB. PROSECUTOR
662; Sansar Chand v. State of Rajasthan (2010) 10 SCC A
604: 2010 (12) SCR 583; Rameshbhai Chandubhai Rathod
v. State of Gujarafl2009) 5 SCC 740; Sk. Yusuf v. State of
WB. (2011) 11 SCC 754: 2011 (8) SCR 83 and Pancho v.
State of Haryana (2011) 10 SCC 165: 2011 (12) SCR 1173
- referred to. B
5. In the instant case, there was some delay in
holding the identification parade. But the delay per se
cannofbe fatal to the validity of holding an identification
parade, in all cases, without exception. The purpose of C
the identification/parade is to provide corroborative
evidence and is more confirmatory in its nature. No other
infirmity has been pointed out by the appellant, iri the
holding of the identification parade. The identification
parade was held in accordance with law and the
witnesses had identified the accused from amongst a D
number of persons who had joined the identification
parade. There is nothing on record to say that the
photographs of the accused were actually printed in the
newspaper. Even if that be so, they were printed months
prior to the identification parade and would have lost their E
effect on the minds of the witnesses who were called
upon to identify an accused. However, it is always
appropriate for the investigating agency to hold
identification parade at the earliest, in accordance with
law, so that the accused does not face prejudice on that F
count. In the facts and circumstances of the present case,
it cannot be said that merely because of delay, the Court
should reject the ·entire evidence of identification of the
accused. More so, the accused persons were duly
identified by these very witnesses in the open court, while G
they were deposing. [Paras 45, 46 and 47] [651-A-E; 656-
DJ
Rajesh Govind Jagesha v. State of Maharashtra (1999)
8 SCC 428: 1999 (4) Suppl. SCR 277 - distinguished.
H
624 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Sidhartha Vashisht alias Manu Sharma v. State (NCT of
Delhi) (2010) 6 SCC 1: 2010 (4) SCR 103 - referred to.
6. It is clear that the prosecution had been able to
comprehensively and reliably establish the chain of
circumstances. The evidence produced on record does
8
not leave any major loopholes in the case of the
prosecution. With the help of the prosecution witnesses,
the presence of the accused in the bungalow, their
intention of committing such heinous crime, the manner
in which the accused persons had destroyed the
C evidence, i.e., the car, dead bodies and blood stained
cloths of the deceased and the accused themselves, from
where and how they had procured the incriminating
articles which they used in the crime, like knife, petrol etc.
and finally the conduct of the accused prior to and after
D commission of the crime have been established by the
prosecution. Most importantly, the recovery of
incriminating articles, cash and jewellery belonging to the
deceased, the finger prints of the accused and the false
stories given by the accused to different persons who
E came to the bungalow of the deceased during 17th/18th
March, 2003, to ensure that none of them enter the house
of the deceased stand unequivocally established. [Paras
48, 49] [656-E-H; 657-A]
F 7. Besides all this circumstantial evidence, another
very significant aspect of the case is that none of the
accused, particularly accused No.2, offered any
explanation during the recording of their statements
under Section 313 CrPC. It is not even disputed that the
G material incriminating evidence was put to accused No.2
while his statement under Section 313 CrPC was
recorded. Except for a vague denial, he stated nothing
more. In fact, even in response to a question relating to
the injuries that he had suffered, he opted to make a
denial, which fact had duly been established by the
H
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE 625
OF A.P. THR. PUB. PROSECUTOR
statements of the investigating officers, doctors and even A
the witnesses who had seen him immediately after the
crime. It is a settled law that the statement under Section
313 CrPC is to serve a dual purpose, firstly, to afford to
the accused an opportunity to explain his conduct and
secondly to use denials of established facts as B
incriminating evidence against him. It was expected of the
accused to render proper explanation for his injuries and
his conduct. However, he opted to deny the same and in
fact even gave false replies to the questions posed to him.
If the accused gave incorrect or false answers during the c
course of his statement under Section 313 CrPC, the
Court can draw an adverse inference against him. In the
instant case, the accused-appellant (A-2) has not only
failed to explain his conduct, in the manner in which
every person of normal prudence would be expected to 0
explain but had even given incorrect and false answers.
The Court not only draws an adverse inference, but such
conduct of the accused would also tilt the case in favour
of the prosecution. [Paras 49, 50, 51, 52] [657-A-D; 660-
A-D]
E
Asraf Ali v. State of Assam (2008) 16 SCC 328: 2008
(10) SCR 1115 and Ma nu Sao v. State of Bihar (2010) 12
sec 310: 2010 (8) SCR 811 - relied on.
Case Law Reference: F
c201 O) 8 sec 249 referred to Para 10
1991 Supp. (1) sec 39 distinguished Para 25
2011 (2) SCR 367 relied on Para 27
G
1995 (5) Suppl. SCR 10 referred to Para 35
(1997) 8 sec 158 referred to Para 36
1998 (3) SCR 902 referred to Para 37
H
626 SUPREME COURT REPORTS (2012] 6 S.C.R.
A 2003 (2) Suppl. SCR 445 referred to Para 38
2006 (10) Suppl. SCR 662 referred to Para 39
2010 (12) SCR 583 referred to Para 40
(2009) s sec 140 referred to Para 41
B
2011 (8) SCR 83 referred to Para 42
2011 (12) SCR 1173 referred to Para 42
1999 (4) Suppl. SCR 277 distinguished Para 44
c 2010 (4) SCR 103 referred to Para 46
2008 (10) SCR 1115 relied on Para 49
2010 (8) SCR 811 relied on Para 49
D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1316 of 2008.
From the Judgment & Order dated 28.03.2007 of the High
Court of Judicature, Andhra Pradesh at Hyderabad in Criminal
E Appeal No. 212 of 2007.
A.T.M. Ranga Ramanujam, Gouri Karuna Das Mohanti,
Deepak Agnihotri, Prakhar Sharma, Anu Gupta for the
Appellant.
F D. Mahesh Babu, Mayur R. Shah, Shishir Pinaki for the
Respondent.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The present appeal is
G directed against the judgment of the High Court of Judicature,
Andhra Pradesh at Hyderabad dated 28th March, 2007,
confirming the judgment of conviction and order of sentence
passed by the learned Third Additional Sessions Judge, Ranga
Reddy District at LB. Nagar on 22nd January, 2007.
H
MUNNAKUMAR UPADHYAYA@MUNNA UPADHYAYA v. STATE 627
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
Facts in Brief A
2. One Shri Baldevraj Seth was working as Chief Track
Engineer, South Central Railway. He was living in Bungalow
No.100, Railways Officer's Colony, South Lalaguda of
Secunderabad, the official residence allotted to him along with B
his family members, i.e., his wife, Prabha Seth, son, Master
Rishab Seth and daughter Kanika Seth. Accused Chandra
Bhushan Upadhyay (Accused No.1) was working as office peon
in South Central Railways, Secunderabad and was attached to
the bungalow of Shri Baldevraj Seth for the last 7 years.
Accused No.1 was married in the year 1997 and was residing C
in the servant quarters of the said bungalow. In fact, he had been
given two servant quarters. Accused No.1 was arrogant,
evasive and in the habit of revolting against Smt. Prabha Seth
who was a strict person and demanded better performance of
duties by accused No.1. The wife of accused No.1, on the D
occasion of dussehra festival, went to her native place in Bihar,
to which all the accused belong. After her departure, accused
No.1 became more arrogant. Nearly a week before the
occurrence, Smt. Prabha Seth had scolded accused No.1 for
his shabby looks and had asked him to have a haircut. This E
aggravated the g.rudge of accused No.1 towards her. On the
very next day, accused No.1 met his elder brother's son, Munna
Kumar Upadhyay (Accused No.2), his brother-in-law,
Maheshwar Upadhyay (Accused No.4) and their friend, Monu
Singh (Accused No.3). As already noticed, all of them belong F
to the same village in the State of Bihar. Accused No.3 was
working in Bharat Steels. Because of the serious grudge of
accused No.1 towards Smt. Prabha Seth, they all planned to
kilt the entire family of Shri Baldevraj Seth and to decamp with
the gold ornaments, etc. G
3. In furtherance to their plan, accused No.1 is stated to
have purchased two knives from a road side hawker in the
market. He also told Accused Nos.2 to 4 to come to the
bungalow in the morning of the next Monday to execute their H
628 SUPREME COURT REPORTS [2012] 6 S.C.R.
A plan. On 17th March, 2003, at about 9.30 a,m., Baidevraj Seth
left for his office. At about 10 a.m., accused No.2 to 4 came to
the entrance of the bungalow, not permitting their entry from the
main gate, accused No.1 took them to the bathroom in the back
varandah and closed the door. Accused No.1 closed all the
B doors from inside. He did not permit the washerwoman to come
inside the house and gave her clothes from outside. When the
maid servants who used to come to the house everyday to
clean the house, came at their respective times, they were sent
back by accused No.1 on the pretext that Smt. Prabha Seth
c wanted the house to be cleaned with acid and phenyl and
therefore, they should come on another day. A carpenter,
Janagama Maheshwar, PW23 had also come to the premises
for fixing some poster beds. However, accused No.1 did not
permit him to come into the house and when the carpenter
insisted on completing the work, accused No.1 told him that
0
Smt. Prabha Seth was not well and does not want to be
disturbed. At about 10.30 a.m., Smt. Prabha Seth went into the
bathroom. ACCUSED N0.1 went to the room of Master
Rishab, who was watching the television, and on the pretext of
showing him something, called him to another bathroom. When
E Rishab reached the bathroom, accused Nos.2 to 4 held the boy
while accused No.1 cut his throat, as a result of which he died
instantaneously. His body was kept in the bathroom itself.
Thereafter when Smt. Prabha Seth came out of the bathroom,
accused No.1 immediately attacked her and accused No.3,
F Monu Singh, opened fire on her with a countrymade pistol.
When she was trying to get free from the grip of accused No.1,
there was a scuffle and because of the resultant misfire,
accused No.3 himself received injury on his leg. Then, accused
No.1, with the knife, succeeded in cutting the throat of Smt.
G Prabha Seth. Thereafter, the accused shifted her body also to
the bathroom. Accused No.1 cleaned the blood stains from the
room and watched for Kanika Seth, daughter of Baldevraj Seth,
to arrive. She arrived at 11.45 a.m. from the school. When she
pressed the call button, accused No.1 directed her to enter from
H the back door. The moment she stepped in, accused Nos.2 and
MUN NA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 629
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
4 held her and accused No.1 cut her throat with a knife, as a A
result of which she collapsed. Her body was then shifted to the
bathroom. After killing these three members of the family, they
ran towards the bedroom, opened the almirah, took gold
ornaments like necklace, chains, rings, wrist watch and net cash
of Rs.44,560/-, which they distributed among themselves.
B
4. Accused No.3, Monu Singh was bleeding as a result of
the bullet injury that he suffered. The other accused took him to
the premises of Bharat Steel, where he was working as a
security guard. There, one Shashidhar Pandey advised them
to take accused No.3 to a doctor. The doctor, after observing C
the injury of accused No.3, asked them to shift the patient to
Gandhi Hospital, Secunderabad. In fact, the doctor helped them
to get admitted and receive the treatment. accused No.1 gave
Rs.2,000/- to the said doctor for medical expenses and after
giving that money, accused Nos.1, 2 and 4 left the place. D
Accuse No.1 sent away Pandu, the watchman, who had come
to the residence of Baldevraj Seth, on the pretext of securing
sweets. At about 6.50 p.m., Baldevraj Seth, returned from his
office to his bungalow. He noticed that the lights of the bungalow
were off. As a routine, the driver used to bring the briefcase of E
Baldevraj Seth inside the bungalow, but on that day, he was
prevented from doing so by Accused No.1, who brought the
briefcase inside himself. Baldevraj Seth, entered the house and
immediately thereafter, accused fired at him and killed him.
After killing him, he shifted his body also into the bathroom and F
cleaned the floor of the hall with phenyl and acid. He called Smt.
Anju, accused No.5, who is his sister and was residing with him,
to clean the floor, whereafter accused No.1 went away to
Mahindra Hills to meet his brother in law. Thereafter, accused
Nos.1, 2 and 4 returned to the bungalow and found that Pandu, G
the watchman was sleeping in the guardroom at the main gate.
The accused waited there and at about 11 p.m. and then they
took the car from the garage, shifted the dead bodies to the
car putting the body of Baldevraj Seth in the dickey of the car.
Accuse No!).1 and 2 took the car near the railway garage. They H
630 SUPREME COURT REPORTS [2012] 6 S.C.R. -
A also dumped their blood stained clothes, as well as those of
the deceased, in the car. After taking the car near the railway
tracks at SP Nagar, Malkajgiri, and parking there, accused
Nos.1 and 2 came back to Tarnaka to buy petrol. Accused No.2
purchased ten litres of petrol at Osmania University filling
B station, Tarnaka. They brought the petrol to the place where the
accused had parked the car, put the petrol on the car and burnt
the dead bodies with the car.
5. Thereafter, accused No.1 returned to the bungalow.
Upon returning, in the next morning at 6 a.m., the accused
C informed the neighbour, one Sanjay Kumar Mishra (PW3) and
others that Baldevraj Seth ~ad gone with his family for dinner
outside, on 17th March, 2003 at about 7.30 p.m. and did not
return again. On 18th March, 2003 at about 6.45 a.mi, ~unicipal
Counsellor, PW-1 made a report in Malkajgiri Police Station
D stating that he had come to know that a car was in flames at
SP Nagar Road, Malkajgiri, near Railway water tank. The
Maruti car was completely burnt and some dead bodies were
found in the car, so PW-1 requested the police to take
necessary action. Upon this, Sub-Inspector of Police, Malkajgiri,
E PVv-47 registered a case under Sections 302, 201 IPC noted
the engine No. and chassis No. of the vehicle and thereby
traced the owner. The dog squad was also put into service. In
the meanwhile, the Chief Engineer along with other senior
officers visited the spot and informed the police that one Meenal
F Seth, PW-12, the other daughter of Baldevraj Seth, was on the
way from Delhi to Hyderabad in Rajdhani Express and had
telephoned them stating that she was calling the phone numbers
of the family members, but no one was responding. Thus, he
had sent his peon to the house of Baldevraj Seth. However,
G accused No.1 had given him the same excuse that he had
given to the neighbours that the family had gone out. In the
morning, he had been told that the family had not returned. The
dead bodies, on the basis of the articles recovered from the
car itself, were identified. After establishing the identity of the
•
MUNNAKUMAR UPADHYAYA@MUNNAUPADHYAYAv. STATE 631
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
deceased, the investigating officer prepared the inquest report A
and started the investigation.
6. During the tourse of investigation, the investigating
officer recorded the statements of different witnesses. From the
very initial stages, accused No.1 appears to have been the 8
prime suspect. It was for this reason that Pandu, PW8 had
informed the investigating officer that he was not permitted to
enter the bungalow and the accused had insisted that he
remain at the front gate and he was then sent to buy sweets,
which he gave to Accused No.5 on his return. When the C
bungalow of the deceased was examined, at number of places,
blood marks were found sprinkled on the wall and the floor had
become sticky as it had been washed with phenyl and acid.
Since accused. No.1 failed to explain all these suspicious
circumstances, he was arrested and it is the case of the
prosecution that he finally confessed to the offence· on 19th D
March, 2003, upon interrogation conducted in the presence of
two mediators. He also admitted that the offence was
committed with the assistance of Accused Nos.2 to 4 and
Accused No.5. The cell phone and the knife which were used
in the commission .of the crime were thrown by the accused in E
the dustbin near the church at Mettuguda. In furtherance to the
confessional statement of the accused and at his instance, the
cell phone, a portion of the gold omarrients, cash and knife were
recovered. On the basis of the information supplied by accused
No.1, accused No.5 was also arrested and gold ornaments F
were seized from her. At the instance of Accused No.2, one
country made revolver and one 7.62 M rib and OFV 9208 live
cartridge, which were hidden near the railway track, were
recovered and seized along with the portion of the gold
ornaments recovered from him. The detailed confessional G
statement and seizure reports were prepared in the presence
of witnesses. Finger prints of accused Nos.1 to 5 were
collected and sent for comparison with that of chance prints
obtained from the house of Baldevraj Seth. Upon recognition,
forensic science experts, headed by Dr. Rajagopal Reddy, H
632 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Professor of Forensic Medicine, Gandhi Medical College,
Hyderabad visited the spot and held autopsy. The incriminating
articles and other collected materials were also sent for DNA
Analysis to the laboratory. The investigating officer recorded the
statement of a number of witnesses, obtained the report from
B the laboratory and finally filed the charge-sheet before the court
of competent jurisdiction. All the accused were committed to
the Court of Sessions, which charged the accused as follows:-
"Against A 1 - Under Sections 302, 201, 435, 380 or
alternatively U/s 411 IPC and U/s 25(1 )(a) and 27 of Arms
c Act.
Against A2 - Under section 302, 302 R/w 34, 201, 435,
380 or alternatively 411 IPC.
D Against A3 - Under section 302, 380 or alternatively 411
IPC ·and 25(1)(a) and 27 of Arms Act.
Against A4 - Under Section 302, 302 R/w 34, 201, 380
or alternatively U/s 411 IPC.
E Against A5 - Under Section 201, 380 or alternatively U/s
411 IPC."
7. They were tried in accordance with law and by a very
detailed judgment dated 24th January, 2007, the trial court found
F all the accused guilty of different offences as charged and
punished them as follows:-
"a) A 1 (Chandra Bushan Upadhyay) is sentenced to death
for the offence U/s 302 IPC. A 1 is also sentenced to suffer
R.I. for 3 years each for the other offences U/ss. 201, 435,
G 411 IPC and section 25(1) (a) and 27(1) of Arms Act. All
these sentences shall run concurrently.
b) A2 (Munna Kumar Upadhyay@ Munna Upadhyaya) is
sentenced to suffer imprisonment for life for the offence U/
H s. 302 R/w 34 IPC. He is also sentenced to suffer RI for 3
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 633
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.)
years each for the offences U/ss. 201, 435 and 411 IPC. A
All the sentences shall run concurrently.
c) A3 (Monu Singh) is sentenced.to suffer imprisonment
for life for the offence U/s. 302 R/w 34 IPC. He is also
sentenced to suffer R.I. for 3 years each for the offences
8
U/ss. 411 IPC and 25(1 )(a}, 27 of the Arms Act. All the
sentences shall run concurrently.
d) A4 (Maheshwar Upadhyay) is sentenced to suffer
imprisonment for life for the offence U/s. 302 R/w 34 IPC.
He is also sentenced to suffer R.I. for 3 years each for the C
offences U/ss. 201, and 411 IPC. All the sentences shall
run concurrently.
e) A5 (Smt. Anju Choubey) is sentenced to suffer R.I. for
3 years each for the offence U/s 201 and 411 IPC 0
respectively. The period of detention already undergone by
A5 shall be given set off against the sentence imposed as
per Sec. 428 Cr.PC. Both the sentences shall run
concurrently."
8. Being aggrieved from the judgment of the trial court, all E
the accused preferred an appeal before the High Court. The
High Court, vide its judgment dated 28th March, 2007, acquitted
the Accused Nos 3 and 4, namely, Monu Singh and Maheshwar
Upadhyay, of all offences with which they were charged.
However, it affirmed the conviction of accused No.1, Chandra F
Bhushan Upadhyay, accused No.2, Munna Kumar Upadhyay
and accused No.5, Anju Choubey.
9. While dealing with the order of sentence, the High Court
partially accepted the plea of accused No. 1 and commuted the G
death sentence awarded to him by the trial court, to life
imprisonment. Accused No. 5 had only been convicted for the
offence under Sections 201 and 411 IPC and she has not
preferred any appeal before this Court. The State has also not
preferred any appeal before this Court against the acquittal of H
634 SUPREME COURT REP'ORTS [2012] 6 S.C.R.
A accused Nos. 3 and 4. Accused No. 1, Chandra Bhushan
Upadhyay, had filed an appeal challenging the judgment of the
High Court, but the same was dismissed at the SLP stage itself,
as being withdrawn, vide order of this Court dated 6th August,
2007. Thus, in the present appeal, we are only concerned with
B the contentions raised on behalf of accused No. 2. The learned
counsel appearing for the said appellant has contended :
A. The case being one of circumstantial evidence, the
entire evidence is of very weak nature. The
prosecution has not been able to establish the
c chain of circumstances which undoubtedly points
only towards the guilt of the accused.
B. The High Court has entirely based its order of
conviction on the finger prints found at the place of
D occurrence and there is no evidence as to how the
finger prints of the accused persons were collected
by the Police and how they were dispatched to the
forensic laboratory for the purposes of comparison.
The vital link in the evidence relating to finger prints
E is missing and as such, the judgment of the High
Cciurt is liable to be set aside.
C. The test identification parade, firstly, was not held
in accordance with law and secondly, it was ·held
after considerable unexplain~d delay, that too,
F when the photographs of the accused had been
published in the newspapers. Thus, the courts could
not have relied upon the identification parade in
returning a finding of guilt against the accused.
G D. Lastly, the contention is that the acquittal of
accused Nos. 3 and 4 by the High Court on merits
is clear indication that the pro~ecution has failed to
prove its case beyond reasonable doubt. Thus, the
High Court ought to have acquitted the present
H appellant as well.
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 635
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
10. There can be no doubt that the present case is one of A
circumstantial evidence. There is no witness to the commission
of crime. Thus, there is a definite requirement of law that a
heavy onus upon the prosecution be discharged to prove the
complete chain of events and circumstances which will establish
the offence and would undoubtedly only point towards the guilt B
of the accused. To prove this chain of events, prosecution had
examined as many as 49 witnesses. This included the persons
who were working at the bungalow, neighbours, the worker at
the petrol pump from which Accused no.2 purchased petrol, the
doctors, forensic experts, fingerprint expert and the only surviving c
member of the family i.e., daughter Meenal Seth, PW12. This
ocular evidence is obviously in addition to the documentary and
expert evidence brought by the prosecution on record. A case
of circumstantial evidence is primarily dependent upon the
prosecution story being established by cogent, reliable and 0
admissible evidence. Each circumstance must be proved like
any other fact which will, upon their composite reading,
completely demonstrate how and by whom the offence had
been committed. This Court has clearly stated the principles and
the factors that would govern judicial determination of such E
cases. Reference can be made to the case of Sanatan Naskar
and Anr. Vs. State of West Bengal [(2010) 8 SCC 249], where
the Court held as follows:-
"27. There cannot be any dispute to the fact that it is a
case of circumstantial evidence as there was no F
eyewitness to the occurrence. It is a settled principle of law
that an accused can be punished if he is found guilty even
in cases of circumstantial evidence provided, the
prosecution is able to prove beyond reasonable doubt
complete chain of events and circumstances which G
definitely points towards the involvement and guilt of the
suspect or accused, as the case may be. The accused will
not be entitled to acquittal merely because there is no
eyewitness in the case. It is also equally true that an
accused can be convicted on the basis of circumstantial H
636 SUPREME COURT REPORTS [2012] 6 S.C.R.
A evidence subject to satisfaction of the accepted principles
in that regard.
28. A three-Judge Bench of this Court in Sharad
Birdhichand Sarda v. State of Maharashtra held as under:
(SCC pp. 184-85, paras 152-54)
B
"152. Before discussing the cases relied upon by
the High Court we would like to cite a few decisions
on the nature, character and essential proof
required in a criminal case which rests on
c circumstantial evidence alone. The most
fundamental and basic decision of this Court is
Hanumant Govind Nargundkar v. State of M.P.
This case has been uniformly followed and applied
by this Court in a large number of later decisions
D up-to-date, for instance, the cases of Tufail v. State
of UP. and Ram Gopa/ v. State of Maharashtra.
It may be useful to extract what Mahajan, J. has laid
down in Hanumant case: (AIR pp. 345-46, para 10)
'10 .... It is well to remember that in cases
E
where the evidence is of a circumstantial
nature, the circumstances from which the
conclusion of guilt is to be drawn should in
the first instance be fully established, and all
the facts so established should be consistent
F only with the hypothesis of the guilt of the
accused. Again, the circumstances should be
of a conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
G proved. In other words, there must be a chain
of evidence so far complete as not to leave
any reasonable ground for a conclusion
consistent with the innocence of the accused
and it rriust be such as to show that within all
H human probability the act must have been
MUNNAKUMAR UPADH:VAYA@MUNNAUPADHYAYAv. STATE 637
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
done by the accused.' A
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: B
(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 c
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. · o
State of Maharashtra9 where the observations were
made: [SCC p. 807, para 19 : SCC (Cri) p. 1047]
'19 .... Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the E
mental distance between "may be" and "must
be" is long and divides vague conjectures
from sure conclusions.'
(emphasis in original) F
(2) the facts so established should be com;i~tent
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, G
(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 H
638 · SUPREME COURT REPORTS [2012] 6 S.C.R.
A (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.
B
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
11. Now, let us examine the prosecution evidence in this
C case before considering the contentions raised on behalf of the
appellant. PW-4 7 is the police officer who had registered the
First Information Report, Ext.P-134. PW-48 and 49 are the
investigating officers who conducted the investigation of the
case. The identity of all the deceased and the fact that they were
D residents of the bungalow in question, that accused Nos. 1 and
5 were living in the premises and that accused No. 2 was
nephew of accused No. 1 have been fully established on record
by the statements of PW-3 to PW-8 and PW-12, Meenal Seth,
daughter of Baldevraj Seth.
E
12. The identity of the deceased persons as well as the
connection of accused No. 3 with the commission of crime has
duly been proved by Ext. P-96, the DNA Report from the
Forensic Science Laboratory Hyderabad, Andhra Pradesh
which was specifically recorded and supported by the evidence
F
of PW-39, Dr. G.V. Jagdamba. According to this witness, he
had received the requisition from the Commissioner of Police,
Cyberabad for performing DNA test. He stated that he
conducted the DNA test on the items which were received by
him. The analysis was taken up by organic extraction process
G and thereby he could establish the identity of deceased, Kanika
Seth and Prabha Seth as als.o the involvement of Monu Singh,
accused No. 3 after examination of the submitted blood
samples.
H 13. In fact, there can be no doubt as to the fact that the
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 639
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
accused No. 1 was working as domestic servant of Baldevraj A
Seth and living in the servant quarters. The reason for
commission of crime, as per the case of the prosecution, was
the persistent grudge of accused No. 1 towards Prabha Seth,
the deceased.
8
14. All the accused planned and then killed all the four
member~ of the family, one by one. They committed the criime
in a most brutal manner by cutting the throat of each one of the
deceased. Of course, in the process, when accused No. 3
wanted to shoot Prabha Seth in the scuffle, he suffered the gun
injury and later they killed Prabha Seth by causing a knife injury C
at her throat.
15. To this entire occurrence, there is no eye-witness but
the attendant circumstances have fully been established by the
prosecution. The forensic expert as well as the neighbours and D
the Investigating Officers had seen the blood stained walls, the
floor, having been washed with phenyl and acid, which was
sticky and various incriminating items seized in the presence
of the witnesses after confessions of the accused.
E
16. Furthermore, PW-8, Pandu clearly stated that when he
had come to the bungalow, it was accused No. 1 who did not
permit him to go inside the house and asked him to wait outside
at the main gate and then, had even sent him to get the sweets
from the market, which he brought and gave to accused No. 5.
Similarly, Janagana Maheshwar, carpenter, PW-23, who had F
come to repair the wooden bedsteads was again not allowed
admission into the house and was sent away to work outside,
on the pretext that Prabha Seth was not feeling well and did
not want to be disturbed. PW-3 identified accused No.1,
accused No.2 and accused No.5 as he had seen them in the G
bungalow on various occasions. PW-4, Sabita also stated that
she was working as a maid servant for sweeping and mopping
the floor of the bungalow and on the fateful day, was not
permitted by accused No.1 to do her routine job. She found that
the rear door from where she used to enter the house normally H
640 SUPREME COURT REPORTS [2012] 6 S.C.R.
A had been closed from inside and after she called for the
accused, he asked her to go away because Prabha Seth was
not feeling well. On similar lines were the statements of PW5
and PW6. The following portion of the statement of PW-6, in
fact, completely brings out the involvement of accused No. 1 in
the commission of the crime.
"Then A 1 asserted that madam had gone to a 111ovie, got
wild and in an angry mood asked me to go away. I noticed
the floor of the hall sticky and wet. Then I asked A 1 why
the floor in the hall is sticky and wet. A 1 replied me that
c madam asked him to clean the floor of the hall with an acid
and accordingly he washed the floor of the hall with an acid
and asked me to go away, in an angry mood. Then I
returned home. As soon as I came out of the house, A 1
closed the rear door from inside. I returned to my house.
D On the next day i.e. on 18-03-2003 at about 7.30 a.m., I
was returning home by purchasing milk from a nearby milk
booth. I found A 1 and the wife of PW3 talking with each
other. She was asking A 1 whether B. R. Seth and his
family members had come back or they gave any
·E information through telephone, for which A 1 replied her that
Seth and his family members have not come back. I
returned to my house. At about 11.00 a.m. on 18-03-2003,
police officials and railway official came to the official
bungalow of B.R. Seth. Then I came to know about the
F death of B.R. Seth and his family."
17. Besides all this is the statement of PW-12, the sole
surviving member of Seth family, which has fully corroborated
the statement of all these witnesses, as well as that of neighbour
G PW3. She was travelling from Delhi to Secunderabad by train.
A number of times, she claims to have called up the numbers
of her father and other family members, but none responded.
Upon this, she had rang up PW-3 to find out what had
happened. It was only on her arrival at Secunderabad that she
came to know about the unfortunate event where her entire
H
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 641
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
family had been murdered by the accused. Accused had A
disappeared from the premises in question. Prior thereto, he
had even told the neighbour, who made enquiry in furtherance
to the phone calls by PW-12, that Baldevraj Seth and the family
had gone out in the car on the evening of 17th March, 2003,
but had never returned back. There is no occasion for so many B
witnesses to depose falsely implicating the accused in the
commission of crime. The statement of these witnesses seen
in conjunction with the circumstance that the accused had given
different and conflicting versions to different persons (servants
and neighbours) at different times, either for not permitting their c
entry into the house, or claiming that the family had gone out
on 17th March, 2003, fully support the case of the prosecution.
18. PW25 is again a very material witness, who has proved
the involvement of accused No. 2 in the commission of the
crime. According to this witness, he was working as a helper D
in the University Filling Station petrol pump. He knew only
accused No.2. On the evening of 17/18th March, 2003, at about
12.30 - 1.00 a.m. accused No. 2 had come to the petrol pump
and asked for 10 litres of petrol. Accused No. 2 was carrying
a plastic container for that purpose. Upon enquiry from this E
witness, he told this witness that he needed the petrol because
his family was travelling in a car and the petrol in the car had
finished. On this pretext, he purchased 10 litres of petrol.
Accused No. 2 paid this witness Rs.350/- and had to collect
Rs.3 as change. When PW-25 was looking for the change, the F
accused did not wait and went away. This witness duly identified
MO 74, the plastic cane in which he had given petrol to the
accused. This petrol, according to the prosecution, had been
used in burning the car as well as the dead bodies of the
deceased persons. PW36, M. Sanjiv Kumar, is the forensic G
expert who had been sent various items collected from the
scene of the car. According to him, he was asked to analyze
for detection of flammable material on these items. Upon
analysis, he gave a report that the items 1 to 8, 24.and 31 were
detected for flammable material. From the burnt clothes, he H
642 SUPREME COURT REPORTS [2012] 6 S.C.R.
A reported that they bore traces of flammable material. Smell of
petrol was also present at the scene and this fact stood
confirmed by the statement of PW48, the Investigating Officer.
Thus, it is clear that accused No. 2 had taken the petrol from
the petrol pump and used it, along with other accused, for the
B purpose of putting the car and the dead bodies of the deceased
persons on fire.
19. PW45, another forensic expert, had found human blood
in the rooms where the crime was committed and also on the
items which were sent to him for his opinion. The presence of
C human blood (B+) on these items, including the clothes which
were sent for serological examination, clearly indicates that in
that house, murder of some human being had been committed.
Identities of those human beings stands completely established
not only by expert evidence but by the evidence of the
D neighbours also.
20. The prosecution had also examined the ballistics
expert as PW-37. He expressed his opinion that item No. 2 was
a live cartridge and he opined that it was a country made pistol
E with 7.62 MM calibre and that the cartridges recovered had
been fired from the recovered pistol. The cartridges were
recovered from the bungalow while the pistol and live cartridge
was recovered in furtherance to the confessional statements
made by accused Nos.2 and 3.
F 21. The learned counsel appearing for the appellant had
argued with some vehemence that the reliance placed by the
High Court on the evidence relating to finger prints is
misplaced, as it has not even been proved in accordance with
law. Firstly, we may notice that the judgments of the Courts
G below do not solely rely upon the evidence of finger prints, but
this was only one of the factors which were taken into
consideration by the trial Court. Secondly, the contention itself
is without any substance.
H 22. PW-38, the finger print expert had visited the site and
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 643
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.)
lifted some chance finger prints on the steel afmirahs from near A
the inner lock door and another set of finger prints from the rear
side of the bathroom. During the course of investigation, the
investigating officer PW-48, with the leave of the Court, had
taken the sample finger prints of all the accused, i.e., accused
No.1 to accused No.5. These finger prints were sent to the B
forensic laboratory to be compared with the chance finger
prints that had been lifted by the ·expert. The Investigating
Officer had sent them vide Ext. P52 to the finger print expert.
These were examined by the expert, who submitted his Report
vide Ext. P73 to the Court and in particular vide Ext. P38, he c
clearly stated that the chance finger prints matched with the
finger prints of accused Nos.1 and 2. This expert was
examined as PW38 in the Court. In his statement, he clearly
stated that he had not found any chance print, either on the
plastic tin or on the burnt car, but with regard to the chance
0
finger prints collected from the bungalow, i.e. inner lock door
of steel almirah and the back door of the house, he clearly
stated that those matched the finger print slip containing the
finger prints of Munna Kumar Upadhyay (accused No. 2), which
are marked as "P". This witness was cross-examined at length,
without any material to favour the accused. Even in his cross- E
examination, he clearly stated that when they went to the
bungalow, the steel almirah of the bedroom was open. He also
examined the wooden door planks of the rear side bathroom
and had taken a chance print from there, which was later proved
to match the prints of accused No.1. F
23. No suggestion was put to this witness in his cross-
examination that he never went to the site, never collected the
finger prints or that the finger prints of the accused were never
sent by the police to him. We may also notice that, even to the G
investigating officer, this suggestion was never put. The attempt
on behalf of the accused to object to the evidence of the finger
prints on the ground that the investigating officer has not told
in his examination-in-chief that he had taken the finger prints
of the accused and sent them to the expert does not carry much H
644 SUPREME COURT REPORTS [2012) 6 S.C.R.
A weight in view of the above documentary, ocular and expert
evidence. It was expected of the Investigating Officer to make
a statement in that behalf, but absence of such statement would
not weight so much against the prosecution that the court should
be persuaded to reject the evidence of PW38 along with the
B clinching evidence of Ext. P-52, P-72 and P-73 respectively.
24. Equally without merit is the submission on behalf of the
appellant that the finger print could be there upon the almirah
in the normal course of business, as accused No. 1 was the
domestic servant working in the bungalow. What is important
C is that the presence of finger prints of accused No. 2 found in
the house and particularly on the almirah Ln the bedroom of the
deceased, remain unexplained and secondly, no attempt was
made by any of the accused persons to take a stand to explain
their conduct.
D
25. The reliance upon the case of Chandran @ Surendran
and Anr. Vs. State of Kerala [1991 Supp. (1) SCC 39, para
21 and 24) is again not of help to the accused inasmuch as·
the facts of that case were totally different and the accused had
E taken up the plea that the finger prints upon the glass had been
taken by the police by coercion. The Court, on the facts of that
case and upon the evidence before the Court, came to the
conclusion that finger print evidence was not reliable because
among all glass pieces, only two had matching finger prints and
F no appropriate explanation has been given.
26. In the present case, lifting of chance finger prints and
on comparison being found to be matching with the sample
finger prints of the accused, taken by the Police, is not the only
piece of evidence. There is corroborating evidence of the
G prosecution witnesses on the one hand, and on the other,
evidence of PW-12, the daughter of the deceased, who
identified the gold ornaments, which were stolen by the accused
from the almirah, as belonging to her deceased mother and
which were recovered from the possession of accused persons.
H
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 645
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
27. This Court, in the case of B.A. Umesh v. Registrar A
General, High Court of Karnataka [(2011) 3 SCC 85], where
the finger prints were found on the handle of a steel almirah to ,
which the persons from outside had no access, held as under:-
"75. The aforesaid position is further strengthened by the
B
forensic report and that of the fingerprint expert to establish
that the fingerprints which had been lifted by PW 13 from
the handle of the steel almirah in the room, matched the
fingerprint of the appellant which clearly established his
presence inside the house of the deceased. The
explanation attempted to be given for the presence of the C
fingerprints on the handle of the almirah situated inside the
room of the deceased does not inspire any confidence
whatsoever. In a way, it is the said evidence which
scientifically establishes beyond doubt that the appellant
was present in the room in which the deceased was found D
after her death and had been identified as such not only
by PW 2, who actually saw him in the house immediately
after Jayashri was murdered, but also by PWs 10 and 11,
who saw him coming out of the house at the relevant point
of time with the bag in his hand. The fingerprint of the E
appellant found on the handle of the almirah in the room
of the deceased proves his presence in the house of the
deceased and that he and no other caused Jayashri's
death after having violent sexual intercourse with her
against her will." F
28. In light of the above, we have no hesitation in rejecting
this contention of the appellant. The prosecution has by other
evidence, clearly been able to establish the physical contact
·between the accused and the articles within the almirah, and G
therefore, the almirah door also.
29. In the present case, as far as the deceased persons
are concerned, because of the burnt condition of bodies, there
could be no other evidence of cause of death except
identification of the deceased persons, which has already been H
646 SUPREME COURT REPORTS [2012] 6 S.C.R.
A established by the prosecution. The accused persons,
particularly, accused Nos. 1, 2 and 3 have suffered physical
injury. Accused No. 3 had even suffered bullet injury which has
been proved on record by the statement of PW-46, the doctor,
as also PW-33 and PW-43, all doctors. PW-18, who was
B running a', clinic in the name of "Baba Clinic" NFC Main Road,
stated that he knew the accused and on 17th March, 2003, the
accused persons had come to his residence and informed him
that accused No.3 had suffered injury on account of a .fall due
to drunken stage. After examining accused No.3, he found two
c bullet gun shots on the left leg of accused No.3, who was also
in intoxicated condition. They were sent to hospital for treatment
and they paid money for treatment. Thereafter, leaving Accused
No. 3 in the hospital, the rest of the accused went missing.
These are the circumstances which connect the accused
D persons with the crime.
30. The High Court has declined to rely upon any of the
extra judicial co9fessions made by the accused persons to
various other persons. It is stated by the prosecution that the
Panch witnesses P. Chiranjeevi, PW-41 and Sudarshan Rao,
E PW-34 were called to the bungalow by the investigating officer
PW-49, and it was this mediator Shri P. Chiranjeevi, PW-41
who made inquiries. When the inquiry was made from Accused
No. 1, Accusea No. 1 is voluntarily stated to have confessed
to opening the almirah and taking out the cash and jewellery.
F He also confessed that he had murdered the deceased and
had hid the knife and cell phone in the MCH dustbin near
Mettuguda. In furtherance to his statement Ext. P-37, recoveries
were also effected.
31. Accused No. 2 had also made a confessional
G statement to Panchas. From the statements of accused No. 2,
they had got recovered the cartridges and pistol, etc. also.
32. PW33, Dr. D. Sudha Rani who had treated the
accused for their injuries, stated in her statement that the
H accused persons had told her that they had suffered injuries on
MUN NA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE 64 7
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
17th March, 2003 while committing the murder'and at different A
times, when they killed each of the deceased.
33. The High Court was right in not relying upon such
confessions, but it ought to have rejected only the part which is
inadmissible in accordance with the provisions of Section 27 8
of the Indian Evidence Act, 1872.
34. The statements in so far as they concern the use of
various articles in commission of crime and recovery of such
articles and stolen items, would form a valid and admissible
piece of evidence for the consideration of the court. The history C
given to the doctor at the time of treatment would not be strictly
an extra judicial confession, but would be a relevant piece of
evidence, as these documents had been prepared by PW33
in the normal course of her business. Even the accused do not
dispute that they were given treatment by the doctor in relation D
to these injuries. Thus, it was for the accused to explain this
aspect. This Court has had the occasion to discuss the effect
of extra-judicial confessions in a number of decisions.
35. In Ba/winder Singh v. State of Punjab [1995 Supp. (4)
E
SCC 259], this Court stated the principle that an extra-judicial
confession, by its very nature is rather a weak type of evidence
and requires appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
F
importance.
36. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158],
the Court held that it is well settled that it is a rule of caution
where the court would generally look for an independent reliable
corroboration before placing any reliance upon such extra- G
judicial confession.
37. Again, in Kavita v. State of TN. [(1998) 6 SCC 108],
the Court stated the dictum that there is no doubt that conviction
can be based on extrajudicial confession, but it is well settled
H
648 SUPREME COURT REPORTS [2012) 6 S.C.R.
A that in the very nature of things, it is a weak piece of evidence.
It is to be proved just like any other fact and the value thereof
depends upon veracity of the witnesses to whom it is made.
38. While explaining the dimensions of the principles
governing the admissibility and evidentiary value of an extra-
8
judicial confession, this Court in the case of State of Rajasthan
v. Raja Ram [(2003) 8 SCC 180) stated the principle that 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
C will have to be proved like any other fact. The value of evidence
as to confession, like any other evidence, depends upon the
veracity of the witness to whom it has been made. The Court
further expressed the view that such a confession can be relied
upon and conviction can be founded thereon if the ~vidence
about the confession comes from the mouth of witnesses who
D appear 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 of attributing
an untruthful statement to the accused.
E 39. In the case of Aloke Nath Dutta v. State of WB. [(2007)
12 SCC 230), the Court, while holding that reliance on extra-
judicial confession by the lower courts in absence of other
corroborating material, was unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is
F a relevant fact. It can be acted upon. Confession may under
certain circumstances and subject to law laid down by the
superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the
court has to satisfy itself in regard to: (i) voluntariness of
G the confession; (ii) truthfulness of the confession; (iii)
corroboration.
xxx xxx xxx
89. A detailed confession which would otherwise be within
H
MUNNAKUMAR UPAOHYAYA@MUNNAUPADHYAYAv. STATE 649
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
the special knowledge of the accused may itself be not A
sufficient to raise a presumption that confession is a truthful
one. Main features of a confession are required to be
verified. If it is not done, no conviction can be based only
on the sole basis thereof."
B
40. Accepting the admissibility of the extra-judicial
confession, the Court in the case of Sansar Chand v. State of
Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial
confession can never be the basis of a conviction, although C
ordinarily an extra-judicial confession should be
corroborated by some other material. [Vide Thimma and
Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P.,
Sivakumar v. State (SCC paras 40 and 41 : Al R paras 41
& 42), Shiva Karam Payaswami Tewari v. State of D
Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by
Balwan has been referred- to in the judgments of the
learned Magistrate and the Special Judge, and it has been
E
corroborated by the other material on record. We are
satisfied that the confession was voluntary and was not the
result of inducement, threat or promise as contemplated
by Section 24 of the Evidence Act, 1872."
41. Dealing with the situation of retraction from the extri;t F
judicial confession made by an accused, the Court in the case
of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5sec 740], held as under :
"It appears therefore, that the appellant has retracted his G
, confession. When an extra-judicial confession is retracted
by an accused, there is no inflexible rule that the court must
invariably accept the retraction. But at the same time it is
unsafe for the court to rely on the retracted confession,
unless, the court on a consideration of the entire evidence H
650 SUPREME COURT REPORTS [2012] 6 S.C.R.
A comes to a definite conclusion that the retracted
confession is true."
. 42. Extra-judicial confession must be established to be true
and made voluntarily and in a fit state of mind. The words of
the witnesses must be clear, unambiguous and should clearly
8
convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis
of conviction, if it passes the test of credibility. The extra-judicial
confession should inspire confidence and the court should find
out whether there are other cogent circumstances on record to
C support it. [Ref. Sk. Yusuf v, State of W 8. [(2011) 11 SCC
754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
43. Thus, all the above circumstances have to be examined
in light of the above principles. We have discussed in some
D detail the evidence led by the prosecution and the above cases
would squarely apply to the present case.
44. Another contention of the accused is in relation to the
identification of the accused being conducted in a manner
E contrary to law. The counsel, while relying upon the case of
Rajesh Govind Jagesha Vs. State of Maharashtra [(1999) 8
sec 428], submitted that the identification parade of the
accused was conducted much after their arrest. They were
arrested on 19th March, 2003 and the identification parade of
the accused was conducted on 20th June, 2003. Furthermore,
F the photograph of the accused had been published in the
newspaper on 19th March, 2003. In the case relied upon by the
appellant, the accused who was stated to be having a beard
and long hair and was so described in the First Information
Report was required to be clean-shaven by the police. The fact
G that no person similar to the person whose description was
given in FIR was included in the Test Identification Parade, the
Court expressed dissatisfaction and held that it was required
for the prosecution to show how and under what circumstances
the complainant and the witnesses came to recognise the
H
MUN NA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. ~TATE 651
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMA~. J.]
accused. This case on facts, therefore, is of no assistance to A
the accused.
45. There was some delay in holding the. id~ntification
parade. But the delay per se cannot be fatal to the validity of
holding an identification parade, in all cases, without ¢xception. 8
The purpose of the identification parade is to provide
corroborative evidence and is more confirmatory in its nature.
No other infirmity has been pointed out by the learned counsel
appearin.g for the appellant, in the holding of the identification
parade. The identification parade was held in accord~nce with C
law and the witnesses had identified the accused from: amongst
a number of persons who had joined the identification parade.
There is nothing on record before us to say that the photograplis
of the accused were actually printed in the newspa};ler. Even if
that be so, they were printed months prior to the identification
parade and would have lost their effect on the minds of the D
witnesses who were called upon to identify an accused.
46. However, we hasten to clarify that it is. always
appropriate for the investigating agency to hold identification
parade at the earliest, in accordance with law, so that the E
accused does not face prejudice on that count. We rpay refer
to the judgment of this Court in a more recent judgment in the
case of Sidhartha Vashisht alias Manu Sharma Vs. State
(NCT of Delhi) [(2010) 6 SCC 1], where law in relation, to
purpose of holding an identification parade, the effect of delay F
and its evidentiary value were discussed. The Court held as
under:-
"256. The law as it stands today is set out in lhe following
decisions of this Court which are reproduced as
hereinunder: G
Munshi Singh Gautam v. State of M.P.: (SCC pp.
642-45, paras 16-17 & 19)
"16. As was observed by this Court in Matru v.
H
652 SUPREME COURT REPORTS [2012) 6 S.C.R.
A State of UP. identification tests do not constitute
substantive evidence. They are primarily meant for
the purpose of helping the investigating agency with
an assurance that their progress with the
investigation into the offence is proceeding on the
B right lines. The identification can only be used as
corroborative of the statement in court. (See
Santokh Singh v. lzhar Hussain.) The necessity for
holding an identification parade can arise only
when the accused are not previously known to the
c witnesses. The whole idea of a test identification
. parade is that witnesses who claim to have seen
the culprits at the time of occurrence are to identify
them from the midst of other persons without any
aid or any other source. The test is done to check
upon their veracity. In other words, the main object
D
of holding an identification parade, during the
investigation stage, is to test the memory of the
witnesses based upon first impression and also to
enable the prosecution to decide whether all or any
of them could be cited as eyewitnesses of the
E crime. The identification proceedings are in the
nature .of tests and significantly, therefore, there is
no provision for it in the Code aAd the Evidence
Act. It is desirable that a test identification parade
should be conducted as soon as after the arrest of
F the accused. This becomes necessary to eliminate
the possibility of the accused being shown to the
witn~sses prior to the test identification parade.
This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to
G ensure that there is no scope for making such an
allegation. If, however, circumstances are beyond
control and there is some delay, it cannot be said
to be fatal to the prosecution.
H 17. It is trite to say that the substantive evidence is
MUNNA KUMAR UPADHYAYA@ MUN NA UPADHYAYA v. STATE 653
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
the evidence of identification in court. Apart from the A
clear provisions of Section 9 of the Evidence Act,
the position in law is well settled by a catena of
decisions of this Court. The facts, which establish
the identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a general B
rule, the substantive evidence of a witness is the
statement made in court. The evidence of mere
identification of the accused person at the trial for
the first time is from its very nature inherently of a
weak character. The purpose of a prior test c
identification, therefore, is to test and strengthen
the trustworthiness of that evidence. It is,
accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of 0
the accused who are strangers to them, in the form
of earlier identification proceedings .. This rule of
prudence, however, is subject to exceptions, when,
for example, the court is impressed by a particular
witness on whose testimony it can safely rely,
E
without such or other corroboration. The
identification parades belong to the stage of
investigation, and there is no provision in the Code
which obliges the investigating agency to hold or
confers a right upon the accused to claim a test
identification parade. They do not constitute F
substantive evidence and these parades are
essentially governed by Section 162 of the Code.
Failure to hold a test identification parade would
not make inadmissible the evidence of identification
in court. The weight to be attached to such G
identification should be a matter for the courts of
fact. In appropriate cases it may accept the
evidence of identification even without insisting on
corroboration. (See Kanta Prashad v. Delhi
Admn., Vaikuntam Chandrappa v. State of A.P., H
654 SUPREME COURT REPORTS [2012] 6 S.C.R.
A Budhsen v. State of UP. and Rameshwar Singh
v. State of J&K.)
19. In Harbajan Singh v. State of J&K, though a test
identification parade was not held, this Court upheld the
B conviction on the basis of the identification in court
corroborated by other. circumstantial evidence. In that case
it was found that the appellant and one Gurmukh Singh
were absent at the time of roll call and when they were
arrested on the night of 16-12-1971 their rifles smelt of
fresh gunpowder and that the empty cartridge case which
c was found at the scene of offence bore distinctive markings
showing that the bullet which killed the deceased was fired
from the rifle of the appellant. Noticing these circumstances
this Court held: (SCC p. 481, para 4)
D '4. In view of this corroborative evidence we find no
substance in the argument urged on behalf of the
appellant that the investigating officer ought to have
held an identification parade and that the failure of
Munshi Ram to mention the names of the two
E accused to the neighbours who came to the scene
immediately after the occurrence shows that his
story cannot be true. As observed by this Court in
Jadunath Singh v. State of U.P. absence of test
identification is not n~cessarily fatal. The fact that
F Munshi Ram did not disclose the names of the two
accused to the villagers only shows that the
accused were not previously known to him and the
story that the accused referred to each other by their
respective names during the course of the incident
contains an element of exaggeration. The case
G
does not rest on the evidence of Munshi Ram alone
and the corroborative circumstances to which we
have referred to above lend enough as~urance to
the implication of the appellant.'
MUN NA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 655
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
Malkhansingh v. State of M.P.: (SCC pp. 751-52, para A
7)
"7. It is trite to say that the substantive evidence
is the evidence of identification in court. Apart from
the clear provisions of Section 9 of the Evidence
8
Act, the position in law is well settled by a catena
of decisions of this Court. The facts, which estabfish
the identity of the accused persons, are relevant
under Section 9 of the Evidence Act. As a general
rule, the substantive evidence of a witness is the C
statement made in court. The evidence of mere
identification of the accused person at the trial for
the first time is from its very nature inherently of a
weak character. The purpose of a prior test
identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly D
considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of
witnesses in court as to the identity of the accused
who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, E
however, is subject to exceptions, when, for
example, the court is impressed by a particular
witness on whose testimony it can safely rely,
without such or other corroboration. The
identification parades belong to the stage of F
investigation, and there is no provision in the Code
of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon
the accused to claim a test identification parade.
They do not constitute substantive evidence and G
these parades are essentially governed by Section
162 of the Code of Criminal Procedure. Failure to
hold a test identification parade would not make
inadmissible the evidence of identification in court.
The weight to be ?ttached to such identification H
656 SUPREME COURT REPORTS [2012] 6 S.C.R.
A should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of
identification even without insisting on
corroboration."
259. In Mullagiri Vajram v. State of A.P.62 it was held that
B
though the accused was seen by the witness in custody,
any infirmity in TIP will not affect the outcome of the case,
since the depositions of the witnesses in court were
reliable and could sustain a conviction. The photo
identification and TIP are only aides in the investigation
c and does not form substantive evidence. The substantive
evidence is the evidence in the court on oath."
47. In the facts and circumstances of the present case, we
are unable to accept the plea that merely because of delay, the
D Court should reject the entire evidence of identification of the
accused in the present case. More so, the accused persons
were duly identified by these very witnesses in the upon court,
while they were deposing.
E 48. From the above discussion, it is clear that the
prosecution had been able to comprehensively and reliably
establish the chain of circumstances. The evidence produced
on record does not leave any major loopholes in the case of
the prosecution. With the help of the prosecution witnesses, the
presence of the accused in the bungalow, their intention of
F committing such heinous crime, the manner in which the
accused persons had destroyed the evidence, i.e., the car, dead
bodies and blood stained cloths of the deceased and the
accused themselves, from where and how they had procured
the incriminating articles which they used in the crime, like knife,
G petrol etc. and finally the conduct of the accused prior to and
after commission of the crime have been established by the
prosecution.
49. Most importantly, the recovery of incriminating articles,
H cash and jewellery belonging to the deceased, the finger prints
MUNNAKUMAR UPADHYAYA@MUNNA UPADHYAYA v. STATE 657
OF AP. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
of the accused and the false stories given by the accused to A
different persons who came to the bungalow of the deceased
during 17th/18th March, 2003, to ensure- that none of them enter
the house of the deceased stand unequivocally established.
Besides all this circumstantial evidence, another very significant
aspect of the case is that none of the accused, particularly B
accused No.2, offered any explanation during the recording of
their statements under Section 313 CrPC. It is not even
disputed before us that the material incriminating evidence was
put to accused No. 2 while his statement under Section 313
CrPC was recorded. Except for a vague denial, he stated c
nothing more. In fact, even in response to a question relating
to the injuries that he had suffered, he opted to make a denial,
which fact had duly been established by the statements of the
investigating officers, doctors and even the witnesses who had
seen him immediately after the crime. It is a settled law that
0
the statement of Section 313 CrPC is to serve a dual purpose,
firstly, to afford to the accused an opportunity to explain his
conduct and secondly to use denials of established facts as
incriminating evidence against him. In this regard, we may refer
to some recent judgements of this Court.
E
This Court in the case of Asraf Ali v. State of Assam
[(2008) 16 sec 328] has observed as follows :
"21. Section 313 of the Code casts a duty on the court to
put in an enquiry or trial questions to the accused for the F
purpose of enabling him to explain any of the
circumstances appearing in the evidence against him. It
follows as a necessary corollary therefrom that each
material circumstance appearing in the evidence against
the accused is required to be put to him specifically,
distinctly and separately and failure to do so amounts to G
a serious irregularity vitiating trial, if it is shown that the
accused was prejudiced.
22. The object of Section 313 of the Code is to establish
a direct dialogue between the court and the accused. If a H
658 SUPREME COURT REPORTS [2012] 6 S.C.R.
A point ih the evidence is important against the accused, and
the conviction is intended to be based upon it, it is right
and pmper that the accused should be questioned about
the m~tter and be given an opportunity of explaining it.
Where no specific question has been put by the trial court
on an mculpatory material in the prosecution evidence, it
would Vitiate the trial. Of course, all these are subject to
rider whether they have caused miscarriage of justice or
prejudibe. This Court also expressed a similar view in S.
Harnam Singh v. State (Delhi Admn.) while dealing with
c Section 342 of the Criminal Procedure Code, 1898
(corre,sponding to Section 313 of the Code). Non-
indicat1on of inculpatory material in its relevant facts by the
trial co1,.1rt to the accused adds to the vulnerability of the
proseC!ution case. Recording of a statement of the
accus~d. under Section 313 is not a purposeless
D
exercis~."
Again, itl its recent judgment in Manu Sao v. State of Bihar
[(2010) 12 sec 310], a Bench of this Court to which one of
us, Swatanter Kumar, J., was a member, has reiterated the
E above-statecl view as under :
"12. Let.us examine the essential features of this Section
313 CrPC and the principles of law as enunciated by
judgments, which are the guiding factors for proper
F application and consequences which shall flow from the
provisions of Section 313 of the Code.
13. As already noticed, the object of recording the
statement of the accused under Section 313 of the Code
is to put all incriminating evidence against the accused so
'
G as to provide him an opportunity to explain such
incriminating circumstances appearing against him in the
evidence pf the prosecution. At the same time, also to
permit him to put forward his own version or reasons, if
. he so choqs~s. in relation to his involvement or otherwise
H in the crime. °The court has been empowered to examine
MUNNA KUMAR UPADHYAYA@ MUNNA UPADHYAYA v. STATE 659
OF A.P. THR. PUB. PROSECUTOR [SWATANTER KUMAR, J.]
the accused but only after the prosecution evidence has A
been concluded. It is a mandatory obligation upon the court
and besides ensuring the compliance therewith the court
has to keep in mind that the accused gets a fair chance
to explain his conduct. The option lies with the accused to
maintain silence coupled with simpliciter denial or in the B
alternative to explain his version and reasons for his
alleged involvement in the commission' of crime. This is
the statement which the accused makes I
without fear or
right of the other party to cross-examine'; him. However, if
the statements made are false, the courtJs el)titled to draw c
adverse inferences and pass conseqa~ntial orders, as
may be called for, in accordance with 'law. The primary
purpose is to establish a direct dialogue between the court
and the accused and to put to the accused every important
incriminating piece of evidence and grant him an 0
opportunity to answer and explain. Once such a statement
is recorded, the next question that has to be considered
by the court is to what extent and consequences such
statement can be used during the enquiry and the trial. Over
the period of time, the courts have explained this concept
E
and now it has attained, more or less, certainty in the field
of criminal jurisprudence.
14. The statement of the accused can be used t0 test the
veracity of the exculpatory nature of the admission, if any,
made by the accused. It can be taken into consideration F
in any enquiry or trial but still it is not strictly evidence in
the case. The provisions of Section 313(4rexplicitly
provides that the answers given by the accused may be
taken into consideration in such enquiry or trial and put in
evidence against the accused in any other enquiry or trial G
for any other offence for which such answers may tend to
show he has committed. In other wo~ds, the use is
permissible as per the provisions of the <;ode but has its
own limitations. The courts may rely on i:i portion of the
statement of the accused and find: him guilty in H
660 SUPREME COURT REPORTS [2012] 6 S.C.R.
A consideration of the other evidence against him led by the
prosecution, however, such statements made under this
section should not be considered in isolation but in
conjunction with evidence adduced by the prosecution."
8 50. In view of the above principles, it was expected of the
accused to render proper explanation for his injuries and his
conduct. However, he opted to deny the same and in fact even
gave false replies to the questions posed to him.
51. If the accused gave incorrect or false answers during
C the course of his statement under Section 313 CrPC, the Court
can draw an adverse inference against him.
52. In the present case, we are of the considered opinion
that the accused has not only failed to explain his conduct, in
o the manner in which every person of normal prudence would
be expected to explain but had even given incorrect and false
answers. In the present case, the Court not only draws an
adverse inference, but such conduct of the accused would also
tilt the case in favour of the prosecution.
E
53. For the above reasons, we see no infirmity in the
judgments under appeal. There is no merit in the submissions
raised on behalf of the accused. Resultantly, the appeal is
dismissed.
F B.B.B. Appeal dismissed.
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