MUNNA KUMAR UPADHYAYA @ MUNNA UPADHYAYA v. THE STATE OF ANDHRA PRADESH THROUGH PUBLIC

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 B 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 C 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 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.

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 fully established on record by the statements of PW-3 to G H 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] F

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 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 E been murdered by

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 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 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] 0

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 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] 0

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