JUDGMENT 1. 1. The Murder Reference No. 3/95, D.B. Criminal Appeal No. 395/95 and D.B. Criminal (Jail) Appeal No. 404/95 arise out of the judgment dated 23.8.95 whereby the learned Addl. Sessions Judge, Hanumangarh sentenced accused Raja Ram to death and pay a fine of Rs. 5,000 under Section 302 Indian Penal Code. All of them are being disposed of by this common judgment. The case relates to the murder of five persons. Ramkaran (80) was the father, Mani Ram (30) was the brother, Revti (25) was the sister-in-law of the accused i.e. wife of Mani Ram and Rani (06) and Pappu (4) were the children of Mani Ram and Revti. 2. This heinous crime murdering five persons was committed in the evening of 19th December, 1989 in the Dhani of Mani Ram situate in Chak 8 BGP "B". The prosecution case is that there was some land dispute between Mani Ram and the accused and Mani Ram was intending to sell his land which the accused did not like and therefore on the fateful evening he murdered all the family members of Mani Ram and also his father by causing fire arm injuries. The FIR of the occurrence was lodged by Sahi Ram, brother of the accused on 20.12.89 at 7.15 a.m. in Police Station Sangaria on which C.R. No. 327/89 was registered. During investigation, the police inspected the site, collected the dead bodies of the deceased persons, prepared inquest memos, got the post mortem of the bodies done, interrogated the witnesses and arrested the accused. It is stated that the accused made disclosure statement and on his information a pistol and his blood stained clothes were recovered which were sent to the FSL for examination. It was reported that the Kamij and Payjama had stains of human blood and pistol was serviceable and the barrel residue indicated that the pistol had been fired. The police, after investigation submitted the challan. The prosecution examined PW 1 Chunnilal, PW 2 Surendra Kumar, PW 3 Vinod Kumar, PW 4 Nand Ram, PW 5 Guddi, PW 6 Sahi Ram, PW 7 Om Prakash, PW 8 Karnail Singh and PW 9 Dr. Mahabir Prasad Agrawal. Accused in his statement under Section 313, Cr. P.C. stated that he has been falsely implicated in the case. He himself entered into the witness box in defence as DW 1. Mahabir Prasad Agrawal. Accused in his statement under Section 313, Cr. P.C. stated that he has been falsely implicated in the case. He himself entered into the witness box in defence as DW 1. The learned Sessions Judge, after hearing the parties found the charge under Section 302 Indian Penal Code proved against the accused on the basis of the circumstantial evidence produced in the case and sentenced him as above. 3. We have heard the arguments of learned counsel for the appellant and the learned Public Prosecutor appearing for the State-respondent and perused the record of the case. 4. Dr. M.P Agarwal (PW 9) has deposed that on 20.12.89 he had conducted postmortem of the bodies of Ram Karan, Mani Ram, Revti, Rani and Pappu and prepared post-mortem reports Ex. P. 56 to P. 60. In the Post-mortem reports Ex. P. 56 pertaining to Ram Karan it is stated that Ram Karan had one wound of entry lacerated, irregular with inverted edges 1-1 /8 x 1-1 /8" x thoracic cavity deep with slight scorching at edges, on right infrascapular region just above renal angle area. It is opined in this report that the deceased had died of the fire arm injury leading to laceration of right lung, right lobe of liver and right kidney with haemorrhage and shock.In the report Ex. P/57 pertaining to Mani Ram, it is stated as follows:- 1. Wound of entry, lacerated, inverted edges with scorching 2"xl- 1/2" through and through to wound of exit with comminute fracture of underlying bone, on lateral aspect of upper and middle third of right arm. 2. Wound of exit, lacerated with averted edges 21/2" x 11/4" x through and through to above wound of entry, on medial aspect of upper ⅓ of right arm. Four wounds of entry on area of 11/2" x 3/4" measuring 1/4" x 1/4" thoracic cavity deep on right side of chest laterally 21/2" below armpit corresponding to above wound of entry. The cause of death was fire arm injury leading to laceration of right lung, intrathoracic haemorrhage added by comminute fracture of right humerus, haemorrhage and shock. In the report Ex. P. 58 which pertains to Revti, it is stated that she had the following injuries: 1. The cause of death was fire arm injury leading to laceration of right lung, intrathoracic haemorrhage added by comminute fracture of right humerus, haemorrhage and shock. In the report Ex. P. 58 which pertains to Revti, it is stated that she had the following injuries: 1. Wound of entry, lacerated, irregular with inverted edges and scorching at edges and blackening in surrounding area 1" x 1" x thoracic cavity deep on right infrascapular region. 2. Lacerated wound with inverted edges and scorching 4" x 3" x bone deep on dorsolateral aspect of middle ⅓" of right thigh with comminute compound fracture of farmer bone. The fire was stricken tangentially combining the wound of entry and exit together taking away all the soft tissues leaving the bane bore. 3. Abrasion with scorching 2-1 /4" x 1" on dorsomedial aspect of middle 1 /3 of left thigh. 4. Lacerated wound with inverted edges and scorching 7"x5" bone deep on dorsolateral aspect of upper half of left arm with comminuted compound fracture of humerus bone. The fire has striken tangentially combining the wound of entry and exit together taking away all the soft tissues leaving the bone bare. 5. Lacerated wound with inverted edges and scorching 11/2" x 1/2" bone deep with separation of right little finger at M.P. Joint and fracture of metacaple bone of right little finger. The cause of death as disclosed in the report is the fire arm injuries leading to massive laceration of lung with intrathoracic haemorrhage added with firearm injuries to thigh and arm causing comminute fracture of femur and humerus bones.In the report Ex. P. 59, the Medical Officer has stated that Rani had one wound of entry, lacerated irregular with inverted edges and scorching 11/2" x 1" abdominal cavity deep. (Intestinal loop protruding out of the wound) on left renal angle region of back. The cause of death is stated to be fire arm injury leading to damage of vital organ liver, spleen, left kidney, both lungs and heart with haemorrhage and shock.In the report Ex. P. 60 of Pappu it is stated that he had the following injuries : 1. Wound of entry, lacerated with inverted edges and scorching 1-1 /4" x 1" x abdominal cavity deep on left renal region. 2. P. 60 of Pappu it is stated that he had the following injuries : 1. Wound of entry, lacerated with inverted edges and scorching 1-1 /4" x 1" x abdominal cavity deep on left renal region. 2. Lacerated wound with inverted edges and scorching 73/4" x 4" x bone deep on lower half of right forearm and wrist with fractures of both bones. The fire has sticken tangentially taking away soft tissues and combining the exit and entry wound together. 3. Wound of entry, lacerated with inverted edges and scorching 1/4" x 1/4" x tissue deep in front of right side of chest in vth interspace near sternum. 4. Scorching area 31/4" x 21/2" present over lower part of front of right chest and right hypochandrium. Disclosing the cause of death, it has been stated in the report that the fire arm injury leading to laceration of left kidney, fracture of L2 and L3 vertebra with injury to spinal cord, laceration of small and large intestines and haemorrhage and shock. The medical officer has mentioned all the injuries noticed by him on the deceased in his statement recorded by the trial Court. 5. Mr. Garg has not assailed the finding of the trial Court that the five deceased had met homicidal death and they were killed by causing injuries by fire arm. 6. Mr. Garg, Learned counsel for the appellant has contended that the trial Court has erred in believing the statements of Vinod Kumar and Nand Ram regarding the extrajudicial confession of the accused. He has further submitted that no interference of crime could be drawn against the accused only on the ground that human blood was found on the clothes said to have been recovered at his instance. According to Mr. Garg, the motive alleged is also not proved on record. 7. The learned Public Prosecutor on the other hand has contended that the prosecution has satisfactorily proved in this case the five circumstances relied on by the learned trial Gourt to convict the accused and therefore, this Court should not disturb the conviction of the appellant. Reliance has been placed on State of U.P. v. M.K. Anthony, AIR 1985 SC 48 . 8. We have given our earnest consideration to the various contentions advanced by the learned counsel for the appellant. The prosecution had relied on six circumstances. Reliance has been placed on State of U.P. v. M.K. Anthony, AIR 1985 SC 48 . 8. We have given our earnest consideration to the various contentions advanced by the learned counsel for the appellant. The prosecution had relied on six circumstances. The 6th circumstance i.e. the recovery of the pistol, was not held proved against the accused as according to the FSL Report the emptees (C/1 to C/8) were not fired from the pistol sent to the Laboratory. There remains only five circumstances on which the learned Sessions Judge has convicted the accused. 9. EXTRAJUDICIAL CONFESSIONComing to the most important circumstance relied on by the trial Court i.e. extrajudicial confession of the accused, we may read the statements of PW 3 Vinod Kumar and PW 4 Nand Ram. Both these witnesses have deposed that when they were going from Deengarh to the Dhani of Mani Ram, the accused had met them at about 6 p.m. in the field belonging to Nand Ram and he told them that he had murdered Ram Karan, Mani Ram, Revti, Rani and Pappu by discharging bullets from the pistol and if they went to police station, he would see them also. According to both the witnesses, Vinod Kumar had reached Deengarh in the evening from his village and he had requested Nand Ram to accompany him upto the Dhani of Mani Ram, his maternal uncle and that when both of them were going towards the Dhani, the accused had met them and informed them that he had killed five persons. The witnesses have deposed that on hearing from the accused they waited for some time observing the movements of the accused who was going to Deengarh and thereafter they, went to Deengarh and slept and in the morning they proceeded for the Dhani to ascertain the real facts and when they reached there, they noticed that the police was already there. Vinod Kumar has also deposed that he used to live with his maternal uncle in the Dhani and he had gone to his village a day before the occurrence. 10. It has of course been held by the Apex Court in the case of State of U.P. v. M.K. Anthony (supra) that conviction can be based only on the extrajudicial confession. 10. It has of course been held by the Apex Court in the case of State of U.P. v. M.K. Anthony (supra) that conviction can be based only on the extrajudicial confession. However, the important question that needs decision is whether this evidence of extrajudicial confession is itself trustworthy and credible or are there any circumstances which may tend to devalue its credibility. 11. In our opinion, the conduct of both these witnesses was far from natural. Even after learning that the five persons including Mani Ram, the maternal uncle of Vinod Kumar and Ram Karan who was the brother-in-law of Nand Ram, the witnesses chose to go back to Deengarh and did not care to go to the Dhani of Mani Ram. They have admitted that the accused had proceeded towards Deengarh and they kept standing so long he was visible to them. Once the accused had disappeared from the scene, the witnesses could not have any apprehension in their minds as not to go to the scene of occurrence. After all the deceased persons were the close relatives of both the witnesses. It cannot be believed in the ordinary course of human conduct and experience that such relatives would not care to visit the place of occurrence even after knowing that five persons had been murdered there, more so when the accused had gone in the different direction. It is relevant to state that the witnesses were not far away from the place of occurrence when they are said to have met the accused. The Dhani of Mani Ram and the field of Nand Ram where the accused met them were adjacent. Yet the witnesses chose to go back to Deengarh where certainly there could be risk as the accused had gone to that side. This very circumstance makes the testimony of these two witnesses untrustworthy. 12. Then the witnesses did not report the incident to anyone in the village during that night. They even did not care to approach the police. After they had reached Deengarh, there could not be any risk to them/more so when they have not deposed that they had seen the accused in village Deengarh. The very fact that the witnesses chose to keep mum throughout the night goes to show that they have given false statements. 13. They even did not care to approach the police. After they had reached Deengarh, there could not be any risk to them/more so when they have not deposed that they had seen the accused in village Deengarh. The very fact that the witnesses chose to keep mum throughout the night goes to show that they have given false statements. 13. Further, according to these witnesses when they started for the Dhani of Mani Ram, there was already a rumour in the village that murder had taken place. It is rather surprising that yet the witnesses did not think it proper to contact the villagers and tell them that the accused had committed murder. The witnesses have deposed that when they reached the Dhani, the police had already reached there. However, this part of the statement of the witnesses does not appear to be true in view of the statement of Om Prakash, I.O. who has deposed that he had reached the place of occurrence at about 9 a.m. whereas according to both the witnesses they had reached the Dhani at about 8 a.m. The witnesses have also not deposed that they had told the public men who had collected there that the accused had met them in the night and he had confessed to have committed the murder. 14. This part of the statement of the witnesses also does not appear to be true that the accused had threatened them when he is said to have met them as this important fact was not stated by them in their police statements Ex. D. 1 & D. 2. Obviously, the witnesses have made improvement when they were in the witness box. 15. It is relevant to state that Nand Ram (PW 4) is a history sheeter and has been charged with various criminal cases. He has admitted that even accused Raja Ram had also registered a case against him and that the case was still pending. It seems that this history sheeter witness prevailed over his nephew Nand Ram to give false statement against the accused so that he may settle his scores with the accused. There cannot be any dispute in this legal position that on the basis of extrajudicial confession alone accused can be convicted. However, it is necessary that the extrajudicial confession Should come from the witnesses whose testimony is found to be trustworthy and credible. There cannot be any dispute in this legal position that on the basis of extrajudicial confession alone accused can be convicted. However, it is necessary that the extrajudicial confession Should come from the witnesses whose testimony is found to be trustworthy and credible. In this case, as pointed out above, there are telling circumstances which tend to devalue the credibility of the two witnesses through whom the evidence of extrajudicial confession is coming. 16. The trial Court has also referred to the confession of the accused before Sahi Ram and the FIR Ex. P/24 lodged by Sahi Ram. Sahi Ram (PW 6) has deposed that at about 5-6 a.m. accused came to his house and thereafter he went to the police station to lodge the report. He has further deposed that the police did not record the report at that time and accompanied them to the place of occurrence and after the completion of the investigation when the SHO returned to the police station in the evening, he was asked to put his signatures on the FIR. Sahi Ram has nowhere deposed that the accused confessed before him that he had murdered the five persons. According to him, what the accused told him was that he had gone to his in-laws house and when he went back to Dhani he saw the five persons lying murdered. It is true that the FIR Ex. P. 24 recites that the accused told Sahi Ram that he had murdered the five persons by discharging bullets from the pistol. However, Sahi Ram has not supported this FIR in his court statement. There is some force in this contention of the Public Prosecutor that Sahi Ram being the police official could not put his signatures on the incorrectly written FIR but at the same time it cannot be denied that Sahi Ram could not be in perfect mental state when he heard about the murder of his five family members including his father and brother. True it is that Sahi Ram would be interested in the life of the accused as he is his real brother but when he has not deposed that the accused has made any confession before him and has stated that the accused had only told that five persons were found murdered in the house and that is what he had informed the police, it cannot be found proved that the FIR was correctly recorded by the police. It is not irrelevant to point out that in the FIR there is thumb mark of the accused also. It is, in other words, the FIR by the accused himself. It is well settled that the FIR by the accused which is inculpatory in nature is not admissible into evidence. Once we ignore the FIR, there remains hardly any evidence to hold that the accused had confessed before Sahi Ram that he had murdered five family members. PW 5 Guddi is sister-in-law of the accused. She has also not deposed that the accused had made any confession before her when he came to their house. 17. The result is that the extrajudicial confession of the accused is not proved on record. 18. ACCUSED SEEN NEAR THE PLACE OF OCCURRENCEThe trial Court has relied upon this circumstance that the accused was seen by Vinod Kumar and Nand Ram going from near the place of occurrence. We have already found that the statements of Vinod Kumar and Nand Ram that the accused had met them are not believable and, therefore, this circumstance relied on by the trial Court falls to the ground. 19. CONDUCT OF THE ACCUSEDIt is true that on seeing the dead bodies of the five family members the normal behavior of the person should be to make cries or to approach the police immediately. However, it has come in the evidence that there were no houses situate near the Dhani so even if the accused had cried, there was none to hear his cries and, therefore, it is not possible to hold that the accused had not cried seeing the dead bodies. Sahi Ram, being in the police department, it was natural for the accused to have approached him for ensuring proper investigation. As such because the accused did not go to the police station, no inference can be drawn against him. 20. Sahi Ram, being in the police department, it was natural for the accused to have approached him for ensuring proper investigation. As such because the accused did not go to the police station, no inference can be drawn against him. 20. Sahi Ram has deposed that the accused had gone to him in the evening and he had taken him to the police station which fact has been denied by the accused when he entered into the witness box as DW 1. On this circumstance, the learned Public Prosecutor has submitted that adverse inference should be drawn against the accused as he was concealing the important fact. True it is that the accused has denied those facts when he appeared in the witness box. However, it is cardinal principle of criminal jurisprudence that the prosecution has to stand on its own legs; it cannot take the advantage of the weakness or inconsistencies in the defence version. In our opinion, the circumstance that the accused has tried to conceal the factum of his going to Sahi Ram's house and to the police station is not such on which it can be inferred with certainty that the accused was the perpetrator of the crime. 21. RECOVERY OF CLOTHES OF THE ACCUSED HAVING BLOOD STAINS.The next circumstance on which the learned trial Judge has relied on is the recovery of the shirt and payjama of the accused at his instance having blood stains. The accused has denied this recovery. The Recovery Memo is Ex. P. 21 which shows that Bhadar Ram and Nand Ram were present at the time of recovery. Bhadar Ram has not been examined by the prosecution for the reasons best known to them. As regards Nand Ram, suffice to say, he is not such a person who can be placed in the category of reliable witnesses. We have already discussed his evidence. Be that as it may even on accepting the recovery of Kamij and Payjama at the instance of the accused, this circumstance is not such on which it can be found that the accused was perpetrator of the crime. It is stated in th' FSL report Ex. P. 61 that the blood group of clothes could not be determined. The prosecution did not get the blood group of the accused determined. It is stated in th' FSL report Ex. P. 61 that the blood group of clothes could not be determined. The prosecution did not get the blood group of the accused determined. As such, the possibility that the blood on the clothes of the accused was his own blood cannot be ruled out. Since it cannot be said as to what was the duration of the blood on these clothes, it cannot be inferred that the clothes were stained with blood at the time of occurrence. 22. MOTIVEThe other circumstance on which the learned trial Judge has based conviction is the motive for the crime. The admitted facts are that Ram Karan and Tara were brothers. Tara died issueless. Mani Ram who is son of Ram Karan was cultivating the land left by Tara. It has come in evidence that Mani Ram wanted to sell this land and the accused was against the disposal of the land. These facts have been admitted even by Sahi Ram (PW 6). It has, therefore,"to be found that accused and Mani Ram were not on good terms and the bone of contention was the land left by Tara. It has come in the statement of Sahi Ram that Nand Ram was interested in getting the land sold by Mani Ram". However, it cannot be believed that on this matter the accused would think of committing murder of not only Mani Ram but his own father and the wife and the children of Mani Ram. After all, the accused could not have any grudge against his father Ram Karan who was 80 years old and in our opinion the alleged motive was not so strong as to commit the murder of five persons. 23. There remains no other circumstance to be discussed. Even if we presume for arguments sake that the accused was not happy with Mani Ram as he wanted to sell his land, this circumstance by itself in our opinion, is not sufficient to convict the accused for the murder. In the case resting on the circumstantial evidence, the circumstances should lead to irresistible conclusion that the accused and accused alone could be the person who committed the murder. In the case resting on the circumstantial evidence, the circumstances should lead to irresistible conclusion that the accused and accused alone could be the person who committed the murder. The accused can be convicted only when the circumstantial evidence is such that it should not be inconsistent with the principle that no other hypothesis could be available on record than the one relied upon by the prosecution. Certainly, this is not the case where it can be inferred that no other person could be perpetrator of the crime. At any rate, the case is not free from doubt. 24. We are conscious of the fact that five persons lost their lives. However, strong the emotional considerations may be, but the same cannot take place of proof. It is indeed unfortunate that five innocent persons lost their lives and culprit whosoever, he may be, goes unpunished. But it would be still worse if an innocent person is held responsible for the same merely on the basis of strong and serious doubts, (see 1995 Suppl. (3) SCC 357). 25. Consequently, we accept these appeals and reject the murder reference and acquit the accused appellant of the offence charged with. He is in custody. He shall be released forthwith if not required in any other case.Murder Reference Rejected. *******