SANAULLAH KHANversusSTATE OF BIHAR

                    [2013] 1 S.C.R. 1079


                     SANAULLAH KHAN                                A
                               v.
                     STATE OF BIHAR
          (Criminal Appeal Nos. 94 - 95 of 2011)

                    FEBRUARY 15, 2013
                                                                   B
      [A.K. PATNAIK AND MADAN B. LOKUR, JJ.]

    Penal Code, 1860:

     ss. 302 and 201 - Triple murder - Circumstantial              c
evidence - Conviction and sentence of death awarded by trial
court confirmed by High Court - Held: Chain of circumstances
proved by prosecution establishes beyond reasonable· doubt
that it was the appellant who had eliminated three persons -
Therefore, conviction of appellant u/s 302 for each of the three   0
offences of murder is upheld - However, as regards the
sentence, motive for crime was not established - Further,
though deceased persons appear to have been brutally killed,
what exactly happened leading to their murder by appellant
is not known - There is no evidence to establish the gravest       E
case of extreme culpability of appellant and there is also no
evidence to establish his circumstances - Therefore,
imprisonment for life for each of the three offences of murder
and the sentences to run consecutively would meet the ends
of justice - Ordered accordingly - Code of Criminal
Procedure, 1973 - s.31 - Sentence/Sentencing - Criminal            F
law - Motive.

     The appellant and another were prosecuted for
committing offences punishable ulss. 364134, 302, 120-B
and 201 IPC. The prosecution case was that regarding               G
the quality of milk supplied by the appellant at the tea stall
of 'R' the father of the informant, there arose a dispute
between the two. On 16.12.2002 at about 8 p.m. 'A', the
worker of the appellant came at the tea stall and told 'R'
                             1079                                  H
    1080    SUPREME COl,.JRT REPORTS           [2013) 1 S.C.R.

A that the appellant was calling him. 'R' went along with 'A'.
  After some time 'A' again came to the tea stall and said
  that the appellant was calling 'S', the other son of 'R'. 'S'
  also accompanied 'A'. However, both 'R' and 'S' did not
  return till the following morning. On the basis of the
B 'fardbeyan' given by the informant, an FIR was registered
  for the offence of kidnapping. During the investigation
  three dead bodies, of 'R', 'S' and 'A', were recovered from
  the 'Khatal (a cattle shed)' of the appellant. The trial court
  convicted the appellant and sentenced him to death. The
c other person was acquitted. The High Court confirmed
  the conviction as also the death sentence.

        Partly allowing the appeals, the Court

       HELD: 1.1. In the instant case, three circumstances
D have been established by the prosecution. Firstly, 'A'
  came to the tea stall on 16.12.2002 at about 8.00 p.m. and
  told 'R' that he was being called by the appellant and 'R'
  went with 'A' and within an hour thereafter 'A' again came
  to the tea stall and told 'S' that he was being called by
E the appellant and 'S' also went along with 'A'; secondly,
  on 17 .12.2002 the dead bodies of the three deceased
  were recovered from a room in occupation of the
  appellant; and thirdly, pursuant to the information
  divulged by the appellant, the incriminating materials
F were recovered by the 1.0. Thus, the chain of these three
  circumstances establishes beyond reasonable doubt that
  it was the appellant who had eliminated the three
  deceased persons. Therefore, the 5 golden principles laid
  down in Sharad Birdhichand Sarda* apply in the instant
  case and the only hypothesis that the Court can conclude
G from the chain of three circumstances is that it is the
  appellant who has committed the murder of the three
  deceased persons. [Para 17-18] [1091-E-H; 1092-D-E]

        *Sharad Birdhichand Sarda vs. State of Maharashtra
H
         SANAULLAH KHAN v. STATE OF BIHAR             1081


1985 (1) SCR 88   =(1984) 4 SCC 116 - relied on               A

    1.2. The evidence of PW4 may create some doubt
with regard to the motive of the appellant to kill 'R' ·and
?S?. Where other circumstances lead to the only
hypothesis that the accused has committed the offence,        8
the court cannot acquit the accused of the offence merely
because the motive for committing the offence has not
been established in the case. [Para 19] [1093-B-C]

    Ujjagar Singh v. State of Punjab 2007 (13) SCR 653 =
(2007) 13 sec 90 - relied on.                                 c
     Javed Masood and Another vs. State of Rajasthan 2010
(3) SCR 236 = (2010) 3 SCC 538; and Mukhtiar Ahmed
                                    =
Ansari vs. State 2005 (3) SCR 797 (2005) 5 SCC 258 -
cited.                                                        D
     2.1. As regards the sentence, motive for the appellant
to commit the murder of three persons has not been
established. There is also no eyewitness to the manner
in which the appellant committed the murder of three
persons and the culpability of the appellant has been         E
established only by a chain of three circumstances
established by the prosecution. The finding of the High
Court, therefore, that either 'R' or 'S' had to undergo the
trauma of watching the father or the son being killed first
in front of the other is a pure surmise. What exactly         F
happened leading to the murder of three persons by the
appellant is not known, but what appears from the post
mortem reports is that the three deceased persons were
brutally killed by the appellant. Brutality would be a
relevant factor, but how the same did take place is also      G
a relevant and necessary material to be considered while
deciding whether to award life imprisonment or death for
the offence of murder. As has been held in Bachan Singh's
case, the extreme penalty of death can be inflicted only
in gravest cases of extreme culpability and in making         H
    1082    SUPREME COURT REPORTS              [2013] 1 S.C.R.


A choice of the sentence, in addition to the circumstances
  of the offence, due regard must be paid to the
  circumstances of the offender also. In the instant case,
  there is no evidence to establish the gravest case of
  extreme culpability of the appellant and there is also no
B evidence to establish the circumstances of the appellant.
  [Para 22-23] [1094-D-H; 1095-A-D-F]

      Panchhi & Ors. v. State of U.P. 1998 (1) Suppl. SCR 40
  = AIR 1998 SC 2726; and Bachan Singh vs. State of
C Punjab 1983 (1) SCR 145=1980 AIR 898 - referred to

       2.2. However, there is sufficient evidence to establish
  the culpability of the appellant for three offences of
  murder as defined in s. 300, IPC, and for each of the three
  offences of murder, he is liable u/s. 302, IPC for
D imprisonment for life if not the extreme penalty of death.
  Section 31 (1 ), Cr. P.C. empowers the court to inflict
  sentences of imprisonment for more than one offence to
  run either consecutively or concurrently. The term
  "imprisonment" ins. 31 Cr.P.C. includes the sentence for
E imprisonment for life. Considering the facts of the case,
  this Court is of the opinion that the sentences of
  imprisonment for life should not run concurrently but
  consecutively and such punishment of consecutive
  sentence of imprisonment for the triple murder committed
F by the appellant will serve the interest of justice. Ordered ·
  accordingly. [Paras 24 and 25] [1095-F-G; 1096-B-D]

        Kamalanantha & Ors. vs. State of T. N. 2005 (3) SCR
    182 =(2005) 5 sec 194 - relied on
G       Macchhi Singh vs. State of Punjab 1983 (3) SCR 413 =
    (1983) 3 sec 470 - cited.
                       Case Law Reference:
        1983 (3) SCR 413          cited               para 5
H
       SANAULLAH KHAN v. STATE OF BIHAR                      1083


    2010 (3) SCR 236               cited                para 10       A
     1985 (1) SCR 88               relied on            'Para 18

    2005 (3) SCR 797               cited                para 19
    2007 (13) SCR 653              relied on            para 19
                                                                      B
     1983(1)SCR145                 relied on            para 22

     1998 (1) Suppl. SCR 40        referred to           para 22

     2005 (3) SCR 182              relied on             para 24
                                                                      c
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 94-95 of 2011.

     From the Judgment & Order dated 16.12.2009 of the High
Court of Judicature at Patna in Death Reference Case No. 1
of 2007 with Criminal Appeal (DB) No. 379 of 2007.                    D

   Amarendra Sharan, lrshad Ahmad, Sanchit G., Somesh
Chandra Jha, Dhruv Pal for the Appellant.

     Samir Ali Khan, Gopal Singh for the Respondent.                  E

     The Judgment of the Court was delivered by

    A.K. PATNAIK, J. 1. This is an appeal against the
judgment dated 16.12.2009 of the Patna High Court in Death
Reference Case No. 1 of 2007 and Criminal Appeal (DB) No.             F
379 of 2007.

FACTS:

     2. The facts very briefly are that a fardbeyan was lodged
on 17.12 .2002 by one Sanju Kumar (hereinafter referred to as         G
Informant), resident of Village Mathura, P.S. Bidupur, District
Vaishali. In the fardbeyan, it was stated: Father of the informant,
namely Ravindra Prasad, was running a tea stall near the
Eastern gate of the GPO. For the tea stall he required about
25 Litres of milk everyday and this milk was being supplied by        H
    1084    SUPREME COURT REPORTS                 [2013) 1 S.C.R.

A Sanaullah Khan, the appellant herein, for about a month.
  Sanaullah Khan started mixing water with the milk and the
  customers of the tea stall started making complaints about the
  quality of tea. On 02.12.2002 at about 2.00 p.m. Sanaullah Khan
  along with Md. Hamid and Arvind came to the tea stall and
B demanded the dues for the supply of milk. After calculation it
  was found that the dues amounted to Rs. 1,000/- and Ravindra
  Prasad gave Sanauallah Khan Rs. 500/- and told him that the
  rest of the amount will be paid later. Ravindra Prasad, however,
  informed Sanaullah Khan that the milk supplied by him was not
c up to the mark and therefore he will no longer purchase milk
  from his Khatal. Sanaullah Khan got annoyed and told him that
  he will not allow him to run the tea stall. Ravindra Prasad
  retorted that he had seen many persons like him at his tea stall.
  Sanaullah Khan said that he will have to face serious
D consequences and that he will teach him a lesson within two
  to four days. Thereafter, Sanaullah Khan, Hamid and Arvind
  went away. On 16.12.2002 at about 8.00 p.m. Arvind, who was
  working with Sanaullah Khan came and told Ravindra Prasad
  that his master was calling him for some urgent work and
  Ravindra Prasad went along with Arvind and did not return for
E an hour. Arvind again came and told his brother Sunny Kumar,
  who was in the tea stall, that his master was calling him and
  that Ravindra Prasad was in the Khatal. Sunny Kumar also
  accompanied Arvind. Ravindra Prasad and Sunny Kumar,
  however, did not return till the next morning. The Informant
F became suspicious and started searching for his father and his
  brother. He went to the Khatal of the appellant, but found it to
  be closed. He suspected that the appellant, Hamid and Arvind
  had kidnapped his father and younger brother.

G      3. The fardbeyan given by the Informant was registered as
  FIR No.451 of 2002 at Kotwali, P.S. for the offence of
  kidnapping under Section 364 read with Section 34 of the
  Indian Penal Code, 1860, (for short 'the IPC'). When
  investigation was done by the police, three dead bodies were
H found concealed in husk in a room on the eastern verandah of
       SANAULLAH KHAN v. STATE OF BIHAR                     1085
               [A.K. PATNAIK, J.]
Pearl Cinema and the dead bodies were seized and a seizure           A
list was prepared in which Parimal Kumar and Baleshwar Ram
signed as witnesses. Two of the dead bodies were identified
by the informant as those of Ravindra Prasad and Sunny
Kumar. Inquest reports and postmortem reports of the dead
bodies were prepared. Later the third body was identified to         B
be that of Arvind by Ramanand Ram, father .of Arvind. The
appellant was arrested and pursuant to the confession of the
appellant, the shoes, sandal and gamchha of the three
deceased persons, a rope, a small plastic bag and a knife
were recovered from the garbage situated in north-east of            c
Khatal and were seized and Parimal Kumar and Baleshwar
Ram signed the seizure list. Offences under Sections 302,
1208 and 201 IPC were added and a charge-sheet was filed
against the appellant and Hamid and the case was committed
to the Court of Sessions.
                                                                     D
     4. At the trial, altogether eight witnesses were examined.
The Trial Court held that the chain of circumstances is complete
and does not leave any reasonable ground for conclusion
consistent with the innocence of the appellant and it goes to
show that in all human probabilities, the offences must have         E
been committed by the appellant. The trial court, however,
acquitted Hamid of the charges. After hearing on the question
of sentence, the trial court took the view that the appellant
should be hanged by the neck till death as he had killed three
helpless persons brutally after premeditation and if he is allowed   F
to continue to live in the present society, he will be a threat to
his co-human beings and this was one of those rarest of rare
cases in which the appellant deserves the capital punishment
of death. The trial court accordingly referred the sentence of
death to the High Court.                                             G

     5. The appellant also filed a criminal appeal against the ·
judgment of the trial court. On 03.07.2006, the High Court
directed recording of additional evidence on two points in
exercise of its powers under Section 391 of the Criminal H
    1086    SUPREME COURT REPORTS                [2013] 1 S.C.R.


A Procedure Code, 1973 (for short 'the Cr.P .C.'). Pursuant to the
  direction of the High Court the confessional statement of the
  appellant was marked as an exhibit through the investigating
  officer (PW-8) after his recall by the trial court and the knife
  which was seized and listed as item 10 in the seizure list was
B also marked as an exhibit. Thereafter, the High Court heard the
  appeal and held that the prosecution has been able to bring
  home the guilt of the appellant with regard to the murder of the
  3 deceased persons by exhibiting four circumstances and
  these are (i) that the appellant was selling milk to the deceased
c Ravindra Prasad and Ravindra Prasad stopped buying the milk
  (ii) the appellant summoned the deceased Ravindra Prasad
  and deceased Sunny Kumar through the deceased Arvind who
  was working with the appellant (iii) the dead bodies of the three
  deceased persons were recovered from the room belonging
D to the appellant and (iv) the weapons used in the murder of
  three deceased persons were recovered pursuant to the
  confession of the appellant. The High Court also confirmed the
  death sentence of the appellant saying that the tests laid down
  by this Court in Macchhi Singh vs. State of Punjab [(1983) 3
  sec 470] regarding the cases in which death penalty should
E be imposed were present in the facts and circumstances of the
  present case. Aggrieved by the judgment of the High Court, the
  appellant has filed this appeal.

  CONTENTIONS OF THE LEARNED COUNSEL FOR THE
F PARTIES:

        6. Mr. Amarendra Sharan, learned senior counsel
  appearing for the appellant, submitted that there is no eye
  witness to the murder of the three deceased persons and the
G finding of the High Court that the prosecution has been able to
  establish the guilt of the appellant beyond reasonable doubt are
  based on 4 circumstances is not correct.

       7. Mr. Sharan relied on the evidence of PW-3 to the effect
  that Arvind had a dairy (khatal) at Old Bakri Bazar and also on
H the evidence of PW-4 that the appellant never had any business
       SANAULLAH KHAN v. STATE OF BIHAR                  1087
               [A.K. PATNAIK, J.]
of milk but had a business of bakri (goat). He submitted that     A
the first circumstance which was the motive for the appellant
to kill the deceased Ravindra Prasad and Sunny Kumar is itself
not established in this case.
    8. Mr. Sharan submitted that there is absolutely no           8
evidence to establish the second circumstance that the
appellant summoned the deceased persons Ravindra Prasad
and Sunny Kumar. He submitted that the trial court and the High
Court has relied on the evidence of PW-6 to hold that the
appellant summoned the deceased persons Ravindra Prasad           C
and Sunny Kumar through his servant Arvind but PW-6 was not
present at the tea stall. He submitted that the evidence of PW-
7 would show that PW-6 was in the house of PW-7 on
16.12.2002 and remained there till the morning of 17.12.2002
and thus PW-6 was not present at the tea stall on 16.12.2002
when Arvind is alleged to have told Ravindra Prasad and Sunny     D
Kumar that they have been summoned by the appellant.

      9. Mr. Sharan next submitted that the third circumstance
that dead bodies were recovered from the room belonging to
the appellant is also not proved in as much as PW-7 has said E
in his evidence that the dead bodies were in fact recovered in
front of the Pearl Cinema. He submitted that the two seizure
witnesses PW-1 and PW-2 have clearly said that recovery of
the dead bodies and the weapon with which the offence was
committed and either incriminating materials were not made in F
their presence. He argued that Rajender Tiwari, the officer who
made the recoveries has also not been examined. He
submitted that the recoveries were made from the pile of the
garbage and not from the drain by the side of Sona Medical
Hall as Is alleged to have been stated by the appellant in his G
confession. He submitted that, therefore, the fourth
circumstance that the incriminating materials were recovered
pursuant to the confession of the appellant is also not
established.
                                                                  H
    1088    SUPREME COURT REPORTS                 [201 ~] 1 S.C.R.

A      10. Mr. Sharan relied on Sharad Birdhichand Sarcia vs.
  State of Maharashtra [(1984) 4 SCC 116] in which this Court
  has laid down the tests to be satisfied before the court convicts
  an accused on the basis of only circumstantial evidence. He
  argued that in this case these tests are not satisfied and
B therefore the conviction of the appellant by the trial court as
  maintained by the. High Court should be set aside. He also
  cited the decision of this Court in Javed Masood and Another
  vs. State of Rajasthan [(2010) 3 SCC 538) to argue that the
  evidence of prosecution witnesses was binding on the
c prosecution. He submitted that the evidence of PW3, PW4 and
  PW7 relied upon by the appellant to establish his innocence,
  therefore, is binding on the prosecution.

       11. Mr. Samir Ali Khan, learned counsel appearing for the
  State, on the other hand, submitted that the evidence of PW-6
D is consistent and if the evidence of PW-6 is considered along
  with the recovery of the dead bodies from the room belonging
  to the appellant as well as the recovery of the weapons and
  other incriminating materials pursuant to the confessional
  statement of the appellant marked Ex.1, the Court will arrive at
E the only conclusion that it is the appellant who has committed
  the murder of three deceased persons. He submitted that
  though the appellant retracted his confession before the trial
  court when his statement under Section 313 of the Cr.P.C. was
  recorded, the appellant has not led any evidence to establish
F his innocence. He submitted that the trial court and the High
  Court, therefore, have rightly held that the prosecution has been
  able to prove the guilt of the appellant beyond reasonable
  doubt.
G FINDINGS OF THE COURT:
       12. The evidence of PW-6 on which both the trial court and
  the High Court have relied on is clear that on 16.12.2002 at
  about 8.00 p.m. when he was present at the tea stall, Arvind,
  servant of the appellant came and called Ravindra Prasad·
H saying that the appellant wanted to talk to him on certain issues
       SANAULLAH KHAN v. STATE OF BIHAR                     1089
               [A.K. PATNAIK, J.]
and that Ravindra Prasad left with Arvind. PW-6 has also stated      A
in his evidence that after about an hour Arvind came again and
told that the appellant was calling Sunny also and Sunny went
along with Arvind and thereafter PW-6 closed the shop and
went to his house. No suggestion has also been made to PW-
6 in his cross-examination by the defence that PW-6 was not          B
present at the tea stall on 16.12.2002. Mr. Sharan, however,
referred to the evidence of PW-7 that PW-6 has come to his
house on 16.12.2002 and stayed at his house at Patna itself
in the night and left in the morning but PW-7 has not stated the
time when PW-6 had come to his house on 16.12.2002. Hence,           c
the evidence of PW-7 does not contradict the evidence of PW-
6 that he was at the tea stall at 8.00 p.m. on 16.12.2002 when
Arvind told Ravindra Prasad and Sunny Kumar that they were
being called by the appellant.
      13. There is also evidence to show that the dead bodies        D.
of Ravindra Prasad, Sunny Kumar and Arvind were recovered
from the Khatal of the appellant. Though, the seizure witnesses
PW-1 and PW-2 stated that nothing was seized in their
presence, PW-6 has stated that when the Khatal (cattle shed)
of the appellant was opened, he saw some splashes of blood           E
and the dead bodies were found in another room and these
dead bodies were of Ravindra Prasad, Sunny Kumar and
Arvind. He has also stated that the inquest reports of all the
three dead bodies were prepared at the place of occurrence
itself and he put his signature on it and all the three signatures   F
are his and these have been marked as Ex.1/5, 1/6 and 1/7. In
cross examination by the defence, PW-6 has denied the
suggestion that the dead bodies had not been recovered in his
presence and that the inquest reports were not prepared in his
presence and that he had not put his signatures on the inquest       G
reports.
      14. Mr. Sharan relJed on the evidence of ~W-7 to submit
that the three dead bodies were not recovered from the Khatal
but we find that PW-7 has also stated that the three dead            H
    1090    SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A bodies were recovered from the room of Pearl Cinema where
  the Khatals of the appellant were situated. PW-7 has, however,
  admitted in cross-examination on behalf of the defence that he
  had not seen with his own eyes as to from which place the dead
  bodies were recovered. Thus the evidence of PW.-7 may not
B establish the place from which the dead bodies were recovered
  but the evidence of PW-6 clearly proves that the bodies were
  recovered from a room in the verandah of Pearl Cinema, which
  was in occupation of the appellant and this evidence of PW-6
  has not been contradicted by the evidence of PW-7.
c       15. PW-8, the 1.0. who inspected the place of occurrence
  has stated in his deposition that Pearl Cinema is situated to
  the east of the tea stall in Budh Marg and was closed for a long
  period and there is a verandah to the east of the cinema hall
  which is divided into many rooms and the rooms situated to
D the north is in possession of the appellant. He has further stated
  in his evidence that in the western portion of the floor of this
  room, blood was found .in huge quantity which had already
  clotted and the stains of blood were found on the western wall
  also. PW-8 has further stated that to the north of this room and
E near the door there is a vacant place which is fitted with the
  grill gate and to the north of this place there is another room in
  which there is heap of straw and the three dead bodies were
  found concealed in this very heap of husk which were recovered
  and the husk was found sticking to the injuries on the dead
F bodies of the deceased persons. PW-8 has further stated that
  the three dead bodies were recovered from the place of
  occurrence itself. He has also stated that Rajender Tiwari, the
  SI of Police prepared the inquest reports of all the three dead
  bodies and he put his signatures on all the three inquest reports
G which have been marked as Ex.5, 5/1 and 5/2 respectively.
       16. PW-8 has also stated in his evidence that in course
  of investigation, after the appellant had surrendered in court,
  he took h!m on police remand and in course of investigation
H he gave his confessional statement, and pursuant to information
      SANAULLAH KHAN v. STATE OF BIHAR                  1091
              [A.K. PATNAIK, J.]
the appellant divulged, he seized two pair of blood stained A
plastic shoes, a blood stained white gamcha (towel of Indian
type), a blood stained chequerred gamcha, a plastic rope of
green colour, a blood stained piece of plastic, a blood stained
old sack, a small sack of blood, a blood stained green small
plastic sack, a blood stained small container made of plastic, B
a knife of 16 inches used for slaughtering goat. PW-8 has also
stated that a seizure list of all these articles which were
recovered were prepared by Rajender Tiwari and he had
identified the writing and signature of Rajender Tiwari and the
seizure list is marked as Ex.6/1. Section 27 of the Indian c
Evidence Act, 1872, states that when any fact is deposed to
as discovered in consequence of information reteived from a
person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby 0
discovered, may be proved. Hence, the information received
from the appellant pursuant to which the aforesaid incriminating
materials were recovered is not only admissible but also has
been proved.
      17. Thus, three circumstances have been established by E
the prosecution. The first circumstance established l;>y the ·
prosecution is that Arvind came to the tea stall on 16.12.2002
at about 8.00 p.m. and told Ravi.ndra Prasad that h'e was being
called by the appellant and Ravindra Prasad went with Arvind
and within an hour thereafter Arvind again came to the tea stall F
and told Sunny Kumar that he was being called by the appellant
and Sunny Kumar went- along with Arvind. The second
circumstance that has been established by the prosecution is
that on 17 .12.2002 the dead bodies of Ravindra Prasad, Sunny
Kumar and Arvind were recovered from a room in occupation G
of the appellant in the verandah of Pearl Cinema. The third
circumstance which has been established by the prosecution
is that pursuant to the information divulged by the appellant the
incriminating materials were recovered by the 1.0. These three
chain of circumstances establish beyond reasonable doubt that H
    1092    SUPREME COURT REPORTS                  (2013] 1 S.C.R.

A it was the appellant who had eliminated the three deceased
  persons.

        18. In Sharad Birdhichand Sarda vs. State of Maharashtra
  (supra), cited by Mr. Sharan, the following 5 golden principles
  were laid down for a proof of guilt on the basis of circumstantial
8
  evidence (i) the circumstance from which the conclusion of the
  guilt is to be drawn should be fully established; (ii) the facts so
  established should be consistent only with the hypothesis of the
  guilt of the accused; (iii) the circumstances should be of a
C conclusive nature and tendency; (iv) they should exclude every
  possiblEi hypothesis except the one to be proved, and (v) 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.
D Considering the chain of three circumstances which have been
  fully established by the prosecution, the 5 golden principles laid
  down in Sharad Birdhichand Sarda vs. State of Maharashtra
  (supra) apply in this case and the only hypothesis that we can
  conclude from the chain of three circumstances is that it is the
E appellant who has committed the murder of the three deceased
  persons.

        19. In Javed Masood and Another vs. State of Rajasthan
  (supra) cited by Mr. Sharan, this Court relying on its earlier
F decision in Mukhtiar Ahmed Ansari vs. State ((2005) 5 SCC
  258] has held that it was open to the defence to rely on the
  evidence led by the prosecution. In this case, we have found
  that the evidence of PW-7 does not contradict the evidence of
  PW-6 and does not support the defence. It, however, appears
G from the evidence of PW-3 that it was Arvind who had a Khatal
  at Old Bakri Bazar. We have perused the evidence of PW-3
  and we do not find that PW-3 has stated that the appellant did
  not have a Khatal on the verandah of the Pearl Cinema. Of
  course, PW4 has stated that the appellant runs business of
  bakri (sheep goat) and never ran milk business but in the
H
        SANAULLAH KHAN v. STATE OF BIHAR                      1093
                [A.K. PATNAIK, J.]
   evidence of PW-4 there is nothing to show that the room on A
   the verandah of Pearl Cinema was not in the occupation of the
   appellant. At best the defence can rely on PW-4 to argue that
   the appellant did not carry on milk business and therefore the
   motive for committing the offence did not exist. The evidence
   of PW4 may thus create some doubt with regard to the motive B
   of the appellant to kill Ravindra Prasad and Sunny Kumar.
   Where other circumstances lead to the only hypothesis that the
   accused has committed the offence, the Court cannot acquit
   the accused of the offence merely because the motive for
   committing the offence has not been established in the case. c
.. In. Ujjagar Singh v. State of Punjab [(2007) 13 SCC 90, this
   Court has held:                             ·

      "It is true that in a case relating to circumstantial evidence
      motive does assume great importance but to say that the
      absence of motive would dislodge the entire prosecution          D
      story is perhaps giving this one factor an importance which
      is not due and (to use the cliche) the motive is in the mind
      of the accused and can seldom be fathomed with any
      degree of accuracy".
                                                                       E ..
 SENTENCE:

       20. On the question of sentence, the trial court has
 recorded special reasons under Section 354(3) Cr.P.C. for
 awarding death sentence to the appellant. The trial court has         F
 held that the appellant has killed Ravindra Prasad and Sunny
 Kumar on an issue of petty amount and the appellant has also
 not spared his servant, Arvind. The trial court has also found
 from the post mortem reports of the three deceased persons
 that they have been brutally murdered after premeditation. The
 trial court has further held that if the appellant is allowed to      F
 continue to live in society, he will be a great threat to his co-
 human beings. For the aforesaid reasons, the trial court took
 the view that the appellant should be awarded the death
 sentence.
                                                                       H
    1094     SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A       21. While confirming the death sentence, the High Court
  has held in the impugned judgment that the present case clearly
  falls under the yardstick laid down in Machhi Singh & Ors. v.
  State of Punjab [AIR 1983 SC 957]. The reasons, which
  weighed with the High Court in confirming the death sentence,
B are that the appellant did not hesitate to take away three lives
  for petty monetary gain; the tender age of Sunny was of no
  concern to him; either Ravindra or Sunny had to undergo the
  trauma of watching the father or the son being killed first in front
  of the other and their hands and feet were tied and a butchering
c knife was used to cause multiple murders and the nature of the
  assault upon the deceased Arvind to do away with all evidence
  whatsoever was dastardly.
         22. We have, however, noticed that the motive for the
    appellant to commit the murder of three persons has not been
D   established in this case. Hence, one of the reasons given by
    the trial court and the High Court that the murders were
    committed for petty monetary gain is not substantiated by
    evidence. We have also found that there is no eyewitness to
    the manner in which the appellant committed the murder of three
E   persons and the culpability of the appellant has been
    established only by a chain of three circumstances established
    by the prosecution. The finding of the High Court, therefore, that
    either Ravindra or Sunny had to undergo the trauma of watching
    the father or the son being killed first in front of the other is a
F   pure surmise. Similarly, the finding of the High Court that the
    hands and feet were tied and a butchering knife was used to
    cause multiple murders is an inference drawn by the High Court
    from the post mortem report. What exactly happened leading
    to the murder of three persons by the appellant is not known,
G   but what appears from the post mortem reports is that the three
    deceased persons were brutally killed by the appellant. It has,
    however, been held by this Court in Subhash Ramkumar Bind
    @ Vakil & Anr. v. State of Maharashtra [AIR 2003 SC 269]
    that brutality would be a relevant factor but how the same did
H   take place is also a relevant and necessary material to be
        SANAULLAH KHAN v. STATE OF BIHAR                      1095
                [A.K. PATNAIK, J.]
 considered while deciding whether to award life imprisonment          A
 or death for the offence of murder. Moreover, in Panchhi & Ors.
 v. State of U.P. [AIR 1998 SC 2726] a three-Judge Bench of
 this Court has held:

      "Brutality of the manner in which a murder was perpetrated
                                                                       B
      may be a ground but not the sole criterion for judging
      whether the case is one of the "rarest of rare cases" as
      indicated in, Bachan Singh's case, (AIR 1980 SC 898),
      in a way every murder is brutal, and the difference between
      one from the other may be on account of mitigating or            C
      aggravating features surrounding the murder."

       23. The trial court, however, has held that as the appellant
  has eliminated the three deceased, if the appellant is allowed
  to continue to live in society, he will be a great threat to his co-
  human beings. This reason for awarding the extreme penalty D
  of death is based on an apprehension and may not be enough
  to impose the extreme penalty of death. As has been held by
  the majority of four Judges in Bachan Singh's case (supra}, the
  extreme penalty of death can be inflicted only in gravest cases
  of extreme culpability and in making choice of the sentence, in E
  addition to the circumstances of the offence, due regard must
  be paid to the circumstances of the offender also. In the present
  case, we do not find evidence to establish the gravest case of
  extrenie culpability of the appellant and we do not also have
. evidence to establish the circumstances of the appellant.            F

       24. We have, however, sufficient evidence to establish the
  culpability of the appellant for three offences of murder as
  defined in Section 300, IPC, and for each of the three offences
  of murder, the appellant is liable under Section 302, IPC for
  imprisonment for life if not the extreme penalty of death. Section   G
  31(1) of the Cr.P.C. provides that when a person is convicted
  at one trial of two or more offences, the Court may, subject to
  the provisions of Section 71 of the Indian Penal Code, sentence
· him for such offences, to the several punishments prescribed
  therefor which such Court is competent to inflict; such              H
    1096     SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A punishments when consisting of imprisonment to commence
  the one after the expiration of the other in such order as the
  Court may direct, unless the Court directs that such
  punishments shall run concurrently. Thus, Section 31 (1) of the
  Cr. P.C. empowers the Court to inflict sentences of
B imprisonment for more than one offence to run either
  consecutively or concurrently. In Kamalanantha & Ors. vs. State
  of T.N. [(2005) 5 SCC 194], this Court has held that the term
  "imprisonment" in Section 31 of the Cr. P.C. includes the
  sentence for imprisonment for life. Considering the facts of this
c case, we are of the opinion that the appellant is liable under
  Section 302, IPC for imprisonment for life for each of three
  offences of murder under Section 300, IPC and the
  imprisonments for life should not run concurrently but
  consecutively and such punishment of consecutive sentence of
  imprisonment for the triple murder committed by the appellant
0
  will serve the interest of justice.

          25. In the result, we maintain the conviction of the appellant
    for three offences of murder under section 302, IPC, but convert
  the sentence from death to sentence for rigorous imprisonment
E for life for each of the three offences of murder and direct that.
  the sentences of imprisonment for life for the three offences will
  run consecutively and not concurrently. Thus, the appeals are
  allowed only on the question of sentence, and dismissed as
  regards conviction.
F
    R.P.                                            Appeals allowed.