Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1768 OF 2010
Surendra Singh & Anr. ….Appellant(s)
VERSUS
State of Uttarakhand ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is directed against the final
judgment and order dated 30.12.2009 passed by
the High Court of Uttarakhand at Nainital in
Criminal Appeal No.1644 of 2001 (Old
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.12.05
14:48:46 IST
Reason:
No.2113/1996) whereby the High Court dismissed
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the appeal filed by the accusedappellants herein
and confirmed the order dated 11.10.1996 passed
by the Sessions Judge, Tehri Garhwal in Sessions
Trial No.7 of 1990.
2. In order to appreciate the issues involved in
this appeal, it is necessary to state the relevant
facts hereinbelow.
3. Three persons, namely, Rameshwar Singh (A
1), Surendra Singh (A2) and Ram Singh (A3) were
prosecuted for commission of offence of murder of
one Rajendra Prasad. The Sessions Judge held all
the three accused persons guilty for having
committed murder of Rajendra Prasad and
accordingly convicted all the three accused under
Sections 457, 380 and 302/34 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”). They
were accordingly sentenced to undergo rigorous
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imprisonment for two years and a fine of Rs.1500/
and in default of payment of fine to further undergo
rigorous imprisonment for six months under
Section 457 IPC, rigorous imprisonment for two
years and a fine of Rs.1500/ and in default of
payment of fine to further undergo rigorous
imprisonment for six months under Section 380 IPC
and life imprisonment under Section 302/34 IPC.
However, all the sentences were to run
concurrently.
4. All the three accused felt aggrieved and filed
criminal appeal in the High Court of Uttarakhand.
By impugned judgment/order, the High Court
dismissed the appeal and confirmed the conviction
and the sentence awarded by the Sessions Judge to
all the three accused.
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5. All the three accused, therefore, felt aggrieved
by dismissal of their appeal and filed appeal by way
of special leave in this Court. During the pendency
of appeal, Rameshwar Singh(A1) expired and,
therefore, the appeal against him stood abated. The
appeal is now survived for its consideration on
merits at the instance of remaining two accused
persons, namely, Surendra Singh (A2) and Ram
Singh (A3).
6. The question, which arises for consideration in
this appeal, is whether the two Courts below were
justified in convicting the appellants, i.e., Surendra
Singh (A 2) and Ram Singh (A3) for the offences in
question or in other words, whether the prosecution
was able to prove its case beyond all reasonable
doubt against the present two appellants as was
held by the two Courts below against them.
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7. In order to examine the issues, it is necessary
to set out the case of the prosecution in brief.
8. Rajendra Kumar (deceased) was the resident of
village Amni, PS Deoprayag, District Tehri Garhwal.
The deceased was running a shop in village for his
livelihood. Rameshwar Singh (A1) used to visit the
village Amni to meet one person, namely,
Rakshanand, who was involved in some unlawful
trading business. Having noticed this, Rajendra
Kumar had objected Rameshwar Singh's (A1) visits
to Rakshanand’s place. Due to this, Rameshwar
Singh had developed grudge against Rajendra
Kumar and in retaliation he had threatened him
with dire consequence in presence of three persons,
namely, Km. Asura(PW3), Smt. Surati(PW4) and
Dhirendra Prasad(PW11).
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9. On 21.01.1990, Rajendra Kumar after taking
dinner in his house in the night went to his shop to
sleep there overnight. It is the case of the
prosecution that three persons named above saw
Rameshwar Singh (A1) with two more persons
coming in one Maruti Van (UMT 8062) in that area
from Deoprayag side prior to commission of the
offence.
10. In the midnight, the shop was found unlocked
and a cash of Rs.2000/ and some cloth items (two
bundles of terrycot, 4 Chaddars, one pant piece,
one shirt, one trouser and torch) were found
missing from the shop. Rajendra Prasad was found
violently assaulted on his head causing him instant
death. His dead body was seen lying at a distance of
around 300 meters from water source of the village
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Amni next day morning, i.e., on 22.01.1990 by
Surendra BhattPradhan of Gaon Sabha, Amni.
11. He, therefore, lodged FIR (Ext. ka1) around
9.35. a.m. at Police Station, Deoprayag, which was
around 12 KM away from the place of occurrence.
The FIR contained a narration that when Surendra
Bhatt was going to Bus Station from his house, he
noticed blood stains on the road and saw the dead
body of a person lying downside of the road whose
face was hidden in bushes.
12. Thereafter, Surendra Bhatt went near to water
source and informed Sita Ram, who was taking
water from there, about the incident. Surendra
Bhatt's child was also accompanying him. He also
rushed to nearby area and called some persons.
This is how 45 persons were assembled there on
being informed of the incident. All persons then
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visited the place where the dead body was lying. It
was recognized to be that of Rajendra Prasad.
13. On the basis of FIR, Head Moharir Jagdish
Prasad registered a report (Ext. Ka8) and then also
registered the case (Ext. Ka9). The case was then
handed over to the investigating officer (IO) M.R.
Dugtal, S.I. The IO then visited the spot and
prepared the inquest report on the dead body (Ext.
Ka3). He also prepared the samples of seal (Ext.
Ka10), photo lash (Ext. Ka11), letter sent to CMO
(Ext. Ka12), challan (Ext. Ka13), and site plan
(Ext. Ka14). He also recorded the statement of
Surendra Bhatt. The dead body was then removed
from the place and sent for post mortem. Km.
Asura, the daughter of deceased gave to IO the list
of stolen articles. The IO then visited the shop of the
deceased and prepared the site plan (Ext. Ka15).
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He also took samples of blood stains and earth in
two containers. (Exts. Ka14 and 15) and also
collected Biri (Ext. Ka16), one match box (Ext. Ka
17), one cap (Ext. Ka18), one pair of chappal
(Ext.Ka19) from the spot and took them into police
custody after preparing memo (Ext. Ka16).
14. Dr. N.K.Saxena conducted the post mortem
and found 9 injuries on the dead body, namely, (1)
Lacerated wound 5cm x ½ cm bone deep on front of
forehead, 4 cm above eyebrow, (2) Lacerated wound
3 cm x ½ cm x muscle deep, on right side lower jaw,
½ cm below lower lip, (3) Incised wound ½ x ½ cm
on right side face, 2 cm lateral to injury no.2, (4)
Incised wound ½ x ½ muscle deep on front of right
fragus, (5) Incised wound ½ x ½ cm muscle deep on
right side face, 3 cms below injury no.4, (6) Fracture
of frontal bone, (7) Lacerated wound 3 cm x ½ cm x
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bone deep, on right parietal bone, (8) Lacerated
wound 10 cm x 4 cms x bone deep, on right parietal
and occipital bone and (9) Left ear outer part whole
tear, lacerated wound which goes upto to bone
matter. All were ante mortem . On internal
examination, he found the fracture of parietal and
frontal bones of skull. He opined that cause of death
was shock and hemorrhage due to
ante mortem
injuries. He also opined that the deceased died in
nd
the intervening night of 2122 around 89 p.m.
The post mortem report is (Ext. Ka5).
15. The IO then recorded the statements of Km.
Asura, Dhirendra Prasad, Madho Singh and Sada
Singh. This led to arrest of the accused persons on
11.02.1990.
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16. On being interrogated at the instance of
Rameshwar Singh(A1), one bushshirt, pant, one
pant piece of terrycot, which was stolen from the
shop were recovered. In addition, one blood stained
jersey from Khoka situated at Mussorrie taxi stand,
Dehradun was also recovered. At the instance of
Surendra Singh (A2), one blood stained shirt and
pant, stolen shirt, pants and 2 chaddars from his
house at Bharuwala, Dehradun were recovered.
Likewise, at the instance of Ram Singh(A3), one
stolen pant, one shirt, two chaddars and one torch
from his house were recovered. In addition, Maruti
Van (UMT8062), wheelpana (Ext. Ka20) which
was used in commission of the offence, were also
recovered from the house of one Anup Kumar at
Dehradun.
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17. The IO accordingly prepared site plan of the
houses of A1, A2 and A3 and Anup Kumar (Exts.
Ka21 to Ka24). The IO also discovered the lock
and key of the shop of the deceased at the instance
of A1 near the road situated in village Gyuli.
Accordingly, recovery memo (Ext.Ka5 and site plan
(Ext.Ka25) was drawn up.
18. The IO then got the identification of the stolen
articles from the two daughters of the deceasedKm.
Asura and Guddi, who duly identified the items to
be the ones stolen from the shop of the deceased.
Accordingly, identification memo (Ext.Ka7) was
prepared.
19. On completion of the investigation, charge
sheet was filed and the case was committed to the
Court of Sessions for trial. The prosecution
examined as many as 14 witnesses. All the three
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accused denied the prosecution case in their
statement under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as
“the Cr.P.C.”). The Sessions Judge, as mentioned
above, found all the three accused guilty and
accordingly convicted them under Sections 457, 380
and 302/34 IPC and sentenced each of them
mentioned above. In appeal filed by the accused, the
High Court confirmed the order of conviction and
sentence and dismissed their appeal, which gives
rise to filing of the present appeal by way of special
leave in this Court by the accused persons.
20. Heard Mr. C.N. Sree Kumar, learned counsel
for the appellants and Mr. Jatinder Kumar Bhatia,
learned counsel for the respondent.
21. Learned counsel for the appellants(accused
persons) mainly urged five points.
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22. In the first place, the learned counsel
submitted that the entire case is based on
circumstantial evidence and, according to him, the
prosecution has failed to adduce sufficient evidence
to prove the case beyond all reasonable doubt.
23. It was his submission that as a matter of fact
this is a case of no evidence against the appellants
and, therefore, the conviction of the appellants by
the two Courts below is wholly unsustainable in
law.
24. In the second place, learned counsel submitted
that the prosecution has failed to prove the chain of
events, which was the basic requirement in cases of
circumstantial evidence to connect the accused with
the commission of offence and, therefore, the
conviction is legally unsustainable.
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25. In the third place, learned counsel submitted
that whatever evidence the prosecution has
adduced to prove the chain of events to connect the
accused with the commission of the offence, the
same is not sufficient to prove the complicity of the
appellants in commission of the crime. In any event,
according to learned counsel, the evidence adduced
is not reliable for sustaining the appellants’
conviction.
26. In the fourth place, learned counsel submitted
that no motive could be proved against the
appellants for commission of the crime in question
and, therefore, the conviction is legally
unsustainable.
27. And lastly, the learned counsel took us
through the evidence and the findings of the two
Courts below while elaborating his submissions and
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contended that the concurrent findings of the two
Courts below are wholly “perverse” inasmuch as
they are based on the evidence which is not reliable
for want of its quality or/and sufficiency.
28. In reply, learned counsel for the respondent
(State) supported the conviction of the appellants
and prayed that impugned judgment does not call
for any interference and the appeal is liable to be
dismissed.
29. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no force in any of the submissions urged by the
learned counsel for the appellants (accused).
30. At the outset, we consider it apposite to state
that when the two Courts below in their respective
jurisdiction has appreciated the entire ocular evidence,
then this Court would be very slow in exercise of its
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appellate jurisdiction under Article 136 of the
Constitution to appreciate the evidence afresh unless
the appellants are able to point out that the
concurrent findings of the two Courts below are wholly
perverse or are recorded without any evidence or are
recorded by misreading or ignoring the material
evidence.
31. We consider it apposite to recall the apt words of
Justice Fazal Ali, a learned Judge, while speaking for
the Bench in the case of vs.
Lachman Singh State
(AIR 1952 SC 167 at page 169) when His Lordship
observed “ It is sufficient to say that it is not the function
of this Court to reassess the evidence and an argument
on a point of fact which did not prevail with the Courts
below cannot avail the appellants in this Court .”
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32. Yet, we have gone through the evidence and
examined the findings of the two Courts below with
a view to find out as to whether they are sustainable
in law.
33. It is not in dispute that the entire case is
based on circumstantial evidence and that there is
no eyewitness to the incident. It is, therefore,
necessary to see those circumstances which found
proved by the two Courts below on the basis of
evidence adduced by the prosecution for holding the
appellants guilty for commission of the crime in
question resulting in their conviction.
34. First the motive. This was held proved by the
two Courts below with the aid of ocular evidence of
PWs 3, 4, 10 and 11 by the prosecution. These
witnesses stated that Rameshwar Singh(A1) had a
grudge against the deceased because much prior to
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the date of incident, it was seen and heard by them
that the deceased used to object Rameshwar Singh
(A1) for his having close association with one
Rakshanand, who was involved in carrying illegal
business in the village. These witnesses stated that
due to the deceased objecting to Rameshwar Singh,
he had threatened the deceased to kill him one day.
35. In our view, there is no reason to disbelieve the
evidence of these four prosecution witnesses on this
issue. Firstly, no evidence was adduced by the
defense; Secondly, no explanation was given by the
accused under Section 313 Cr.P.C. proceedings;
Thirdly, all the four witnesses knew each other
including the accused persons and Rakshanand
because all were the residents of one village and of
nearby area.
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36. We, therefore, find no good reason to discard
their evidence which, in our opinion, was rightly
believed by the two Courts below for recording the
finding of fact on the question of motive against the
appellants.
37. The second circumstance is of “appellants
last seen”. This was held proved by the two Courts
below with the aid of ocular evidence of PWs 3, 11
and 13. It was proved that Ram Singh (A3) was the
driver of Maruti Van which was owned by Anup.
This Maruti Van was seen moving prior to
commission of the offence in the area in question
carrying the appellants. This Van was recovered at
the instance of Ram Singh.
38. In our view, there is again no reason to
disbelieve the evidence of these three witnesses on
this issue. First, no evidence was adduced by the
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defense; Second, no explanation was given by the
accused under Section 313 Cr.P.C. proceedings and
lastly, this was one of the relevant circumstances to
prove the chain of events which led to commission
of the crime.
39. The third circumstance is of “recovery of stolen
articles at the instance of accused persons”. This
was held proved with the aid of evidence of PWs 3,
8, and 14.
40. This was also one of the relevant
circumstances to prove the chain of event, which led
to commission of crime. The reason was that the
deceased was sleeping in his shop where he was
found dead and several articles kept in his shop for
sale which were found missing were later recovered
at the instance of the accused persons.
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41. Neither any evidence nor any explanation was
given by the accused on this issue. We, therefore,
find no reason to find fault in this circumstance for
reversing the finding on this issue.
42. The fourth circumstance is of “identification of
stolen articles". This was held proved with the aid
of evidence of PWs 3 and 8. It was proved that the
items recovered at the instance of the appellants
were got tallied with the stolen items with the aid of
these two witnesses.
43. As there was neither any defense evidence and
nor any explanation given by the appellants under
Section 313 Cr.P.C. proceedings, the two Courts
below were justified in holding the fourth
circumstance as proved. It was undoubtedly one of
the relevant circumstances to prove the chain of the
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event in proving the commission of crime by the
appellants.
44. The fifth circumstance is of discovery of
weapon of crime at the instance of Ram Singh (A3).
This was held proved with the aid of evidence of PW
10. It was one of the important circumstances to
prove the chain of event in commission of offence.
45. Ext. Ka20 is the weapon “wheelpana” that
was used for assaulting deceased on his head. The
doctor, who performed the post mortem, also
confirmed that the injuries sustained by the
deceased on his head could be caused with the use
of wheelpana.
46. We find no reason to disbelieve this evidence
and nor there is any material to discard this
evidence at the instance of the appellants.
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47. The sixth circumstance is of “recovery of
clothes containing human blood”. The clothes were
recovered at the instance of the appellants and it
was held duly proved in evidence.
48. This equally is one of the relevant
circumstances in proving the chain of event, which
led to commission of the crime and we find no
ground to hold this fact as not proved for want of
any challenge at the instance of appellants.
49. The seventh circumstance is of “discovery of
lock and key of shop of the deceased”. This was
recovered at the instance of A1 and was held
proved with the aid of evidence of PWs12 & 14.
50. In our considered opinion, the aforementioned
are the circumstances, which were proved by the
prosecution with the aid of oral evidence beyond all
reasonable doubt, which led to commission of the
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crime. All the circumstances, in our view, point the
finger of guilt towards the appellants and their
complicity in commission of the crime. It is
established by the prosecution that none else other
than the appellants who were the persons involved
in the commission of offence in question and that
they conspired to eliminate the deceased. It is
proved that with such idea in mind they entered in
nd
the shop on the intervening night of 2122 and
brutally assaulted the deceased with the aid of
wheelpana on his head, looted his shop and took
away the stolen articles with them and threw away
the body of the deceased near the downside of the
road outside the shop at a distance.
51. We are unable to notice any kind of perversity
or arbitrariness or illegality in the reasoning and
conclusion arrived at by the two Courts below when
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it was held that it is the appellants who committed
the crime in question.
52. In view of the foregoing discussion, we find no
merit in the appeal. It thus fails and is accordingly
dismissed.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[INDU MALHOTRA]
New Delhi;
December 04, 2018
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