Full Judgment Text
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 262 OF 2021
[Arising out of S.L.P.(Crl.)No.3449 of 2019]
Rahul …..Appellant
Versus
State of Haryana …..Respondent
J U D G M E N T
R. Subhash Reddy, J.
Leave granted.
1.
This appeal has been preferred, aggrieved by the judgment
2.
th
and order dated 06 December 2016 passed by the High Court of
Punjab & Haryana at Chandigarh, confirming the conviction recorded
and sentence imposed, for the offence punishable under Section 302
read with Section 34 of Indian Penal Code (IPC) and under Section
25(1B)(a) of the Arms Act, 1959, by the learned Sessions Judge,
Bhiwani.
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.03.03
17:06:54 IST
Reason:
3. On 07.08.2010 a telephonic message was received in Police
Station, Charkhi Dadri from one Jaswant Singh, resident of Village
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Kaliyana, to the effect that in the pit of panchayat land adjoining
KaliyanaJhojhu road towards hill, dead body of a young boy was
lying. After receiving the said information, the Inspector of
Police/SHO of the Police Station along with other police officials
reached the spot for investigation. After reaching the place of
occurrence, they found a dead body of an unknown person with fire
arm injury marks. At the place of occurrence, two empties of brass
having marka of 8 MM PF on their bottom were recovered along with a
pair of chappal s. Bloodstained earth was collected from the spot and
converted into sealed parcels. The complainant Jaswant Singh who
was examined, during the trial, as PW6 was present and his
statement was recorded. The inspecting officers have found marks of
dragging of the deceased on the kacha road which was going towards
hill; there were also marks of tyres of a small vehicle. On checking of
the dead body by the police, they have noticed two firearm shots on
both sides of waist and there was a deep wound on the back of right
ear and left jaw of the mouth was cut. The dead body was smeared
with blood and they suspected, some unknown persons have brought
the deceased in a vehicle and committed murder by causing fire arm
injuries. On the complaint of Jaswant Singh (PW6) a crime was
registered in FIR No.297 on 07.08.2010 for the offence punishable
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under Section 302 read with Section 34, IPC and Section 25 of the
Arms Act.
4. After registering the crime, investigation was taken up. The
post mortem of the dead body was conducted in PGIMS Rohtak. For
identification of dead body, news item was got published in the
newspaper along with the photograph of the deceased. During the
investigation of the case, on 14.08.2010, the mother of the deceased
Kasturi Devi (PW12) and the brother of the deceased, by name, Anil
Kumar (PW3) approached the police on the basis of news publication
and identified the deceased as Jitender, who was son of PW12 and
brother of PW3 and resident of Kanhra. After recording the
statements of the aforesaid witnesses, investigation was proceeded on
the basis of call details of the deceased and statements of the mother
and brother of the deceased. After collecting necessary evidence, the
appellant herein, i.e., Rahul, a resident of Mirpur was arrested on
21.08.2010. It is stated that during the interrogation, the accused
Rahul made disclosure statement that about six months earlier he
was married with Priyanka, daughter of Ramesh, caste Jat , resident of
village Chandwas. He had suspicion on the character of his wife and
he is stated to have informed his fatherinlaw Ramesh Kumar and
brotherinlaw Ashok Kumar, that Priyanka has illicit relation with
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Jitender (deceased), resident of village Kanhra. Therefore, they have
decided to eliminate Jitender. As per the case of the prosecution, on
06.08.2010 at about 06:00 p.m. as per their plan, appellant (Rahul)
called Jitender, his fatherinlaw Ramesh and brotherinlaw Ashok to
Badhra. He was having a Maruti car bearing registration no.DL9CJ
5165 and thereafter in Badhra, Jitender had two bottles of beer and
he came under influence of liquor. Further, the case of the
prosecution is that all of them have taken the deceased from Jhojhu
to Kaliyana hill where Jitender also got down from the car and they
have fired on the deceased and thrown him in the pit. The Maruti car
bearing registration no.DL9CJ5165 and the mobile phone of the
accused Rahul were taken into possession vide recovery memo.
Further it is stated that on 23.08.2010, the appellantaccused pointed
the place of occurrence and on 24.08.2010, in pursuance of his
disclosure statement, a country made pistol .315 bore and two live
cartridges were seized from the house of his Bua , resident of Old
Housing Board Colony, Bhiwani. It is alleged that during the
investigation the other accused, namely, Ramesh also suffered
disclosure statement and disclosed that the SIM of phone which he
was using, was in the name of his brotherinlaw, and he was talking
to his soninlaw (Rahul) by using the said SIM. As the other accused
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Ashok Kumar was absconding, nonbailable warrants were pending
execution and proceedings under Sections 82 and 83 of Cr.PC were
also issued.
5. After completion of the investigation, final report under
Section 173 of Cr.PC was filed against the appellant herein and
Ramesh for their trial and the case was committed to the Court of
Sessions. On the aforesaid allegations, the appellant (Rahul) and
other accused, by name, Ramesh were chargesheeted under Section
302 read with Section 34, IPC; and the appellant herein was also
chargesheeted for offence under Section 25(1B)(a) of the Arms Act,
1959. Accused pleaded not guilty and claimed trial.
6. To prove the charges framed against the appellant and
another, prosecution has examined 20 witnesses, namely, PW1,
Krishan Lal; PW2, Manjeet; PW3, Anil, brother of deceased Jitender
alias Jittu; PW4, Ravinder Pal, Senior Scientific Offficer; PW5 Dr.
Hitesh Chawla; PW6 Jaswant Singh (complainant); PW7
Dharmender Singh, draftsman; PW8 Inderjeet, photographer; PW9
HC Ravinder Kumar; PW10 HC Arvind Kumar; PW11 ASI Surat
Singh; PW12 Kasturi, mother of deceased Jitender; PW13 constable
Jasveer; PW14 constable Manoj Kumar; PW15 Krishan Singh,
Reader to District Magistrate; PW16 Sarif Singh; Inspector
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(investigating officer); PW17 ASI Amir Singh; PW18 EHC Rajbir
Singh; PW19 constable Radhey Shyam; and PW20 Vijender Singh,
Deputy Superintendent of Police (Investigating Officer). In defence, on
behalf of the accused, DW1 Rani, widow of Jagdish was examined.
7. After completion of the trial, the Sessions Judge, Bhiwani, by
recording a finding that the prosecution has proved the charges, vide
judgment dated 17.10.2012, held that both the accused Rahul
(appellant herein) and Ramesh were guilty for offence under Section
302 read with Section 34, IPC and appellant Rahul is also found guilty
for offence under Section 25 of the Arms Act and convicted them
accordingly. By order dated 20.10.2012 both the accused were
sentenced to undergo life imprisonment and to pay a fine of
Rs.20,000/ each, in default of payment of fine, to undergo rigorous
imprisonment for a further period of one year each under Section 302
read with Section 34, IPC and further sentenced appellant Rahul to
undergo rigorous imprisonment for a period of two years and to pay a
fine of Rs.5,000/ for offence under Section 25 of the Arms Act, 1959.
Both the sentences were ordered to run concurrently.
8. Aggrieved by the conviction recorded and sentence imposed
by the learned Sessions Judge, Bhiwani, the appellant, along with
another accused, namely, Ramesh approached the High Court of
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Punjab & Haryana at Chandigarh by way of Criminal Appeal No.D
1060 of 2012. The High Court, by judgment and order dated
06.12.2016, while confirming the conviction recorded and sentence
imposed on the appellant, has allowed the appeal partly by acquitting
the other accused, namely, Ramesh. The High Court has held that
prosecution has failed to prove its case against Ramesh (appellant
before High Court) beyond reasonable doubt.
9. We have heard Sri Tathagat Harsh Vardhan, learned counsel
appearing for the appellant and Sri Dinesh Chander Yadav, learned
Additional Advocate General for the State of Haryana.
Learned counsel for the appellant has made the following
10.
submissions :
The incident in question was a blind murder and the
conviction is solely based on the circumstantial evidence.
PW3 (Anil) and PW12 (Kasturi) who are brother and mother
respectively of the deceased, are interested witnesses and the
conviction is based on the testimony of these interested
witnesses, to prove that deceased was last seen with the
appellant.
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PWs3 and 12 have made improvements in their statements
and there are material contradictions in their depositions.
Moreover, PW3 was declared hostile by the prosecution.
Both these star witnesses have tried to introduce new theory
imputing motive for the first time by stating that panchayat
was held by Ramesh and Ashok against Jittu (deceased) for
latter calling Priyanka, daughter of Ramesh and sister of
Ashok.
The conviction is based on the alleged recovery of weapon at
the instance of the accused – appellant herein and said
weapon was used in commission of offence, though the same
was not proved by the prosecution.
In absence of any other independent evidence, courts below
have committed error in accepting such evidence which is
with material contradictions. It is submitted that PW3 has
himself stated in the chief examination that he did not have
any suspicion on anyone, and there was no enmity or grudge
with the accused persons. Further the conduct of the
aforesaid two witnesses is not trustworthy and is unnatural.
Thus, last seen theory is to be disbelieved and discarded. It is
submitted that any amount of suspicion, cannot substitute
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proof and as such it was the duty of the courts to take utmost
precaution before ordering conviction on the basis of
circumstantial evidence.
Recovery alleged to have been made at the behest of the
appellant is false and unreliable, as much as, no independent
witness was called to substantiate the socalled recovery of .
315 bore country made pistol and two live cartridges.
Lastly stating that the appellant has been falsely implicated
in the instant case and is undergoing incarceration from last
about 11 years, it is submitted that it is a fit case to allow the
appeal by acquitting the appellant for the charges levelled
against him.
To support his contention that the suspicion, howsoever grave, cannot
replace proof, learned counsel relied on the judgment of this Court in
1
the case of State of Goa etc. v. Sanjay Thakran & Anr. Etc. wherein
this Court has laid down the tests to be applied, when the case rests
upon circumstantial evidence. Relying on the aforesaid judgment, it is
submitted that the tests stated in the above said judgment are not
satisfied by the prosecution, to bring home the guilt of the accused.
Further, in support of the argument that the ‘circumstance of last
1 (2007) 3 SCC 755
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seen together’ does not by itself necessarily lead to inference that it
was the accused who committed crime and there must be something
more to establish connection between accused and the crime, that
points to guilt of accused and none else, he has placed reliance on a
judgment of this Court in the case of Kanhaiya Lal v. State of
2
Rajasthan . Further, submitting that to prove the guilt of the accused
based on circumstantial evidence, the evidence and circumstances
must form a chain of events, placed reliance on a judgment of this
3
Court in the case of Wakkar & Anr. v. State of Uttar Pradesh .
11. Learned Additional Advocate General appearing for the State,
by drawing our attention to the statements of various witnesses which
are on record, has submitted that apart from the evidence of PW3
and PW12 several other witnesses were examined on behalf of the
prosecution to prove the guilt of the appellant. It is submitted that if
the entirety of evidence is taken into consideration, it makes it clear
that the appellant alone has committed the offence. It is further
submitted that the motive was also established, namely, that deceased
had developed relation with Priyanka who is the wife of the appellant.
It is further submitted that the forensic report also supports the case
2 (2014) 4 SCC 715
3 (2011) 3 SCC 306
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of the prosecution to show that the weapon, recovered at the instance
of the appellant from the residence of his Bua , was used for
committing the offence. Lastly, it is submitted that merely because
PW3 and PW12 who are brother and mother respectively of the
deceased were examined to prove the case of the prosecution, same is
no ground to discard their testimony, if the same is corroborated
along with other oral and documentary evidence on record. It is
submitted that having regard to facts and circumstances of the case,
the prosecution has clearly proved the chain of events and if the same
is considered along with the post mortem report and the recoveries
effected at the instance of the appellant, it leads to an irresistible
conclusion that the appellant has committed the offence. Further, it
is submitted that the trial court as well as the High Court have
elaborately considered the evidence on record and in view of the
concurrent findings, so far as the appellant is concerned, there are no
grounds to interfere with the same.
12. We have considered the submissions made by the learned
counsel on both sides and perused the material on record.
13. Though the appellant (Rahul) and another accused, namely,
Ramesh were tried together and were convicted by the trial court but
on appeal the High Court has allowed the appeal qua Ramesh and
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acquitted him of the charges by recording a finding that prosecution
has failed to prove the guilt of the accused Ramesh beyond reasonable
doubt. At the same time, the High Court has confirmed the conviction
recorded and sentence imposed, by the trial court, on the appellant.
As there is no appeal by the State challenging the acquittal recorded
by the High Court, as such, we are only required to examine whether
the circumstantial evidence on which basis the conviction of appellant
(Rahul) is recorded, establishes the guilt of the accused or not. Before
we deal with the contentions advanced, we need to notice the relevant
evidence which is led by the prosecution to prove the case against the
accused appellant (Rahul).
It is the case of the prosecution that appellant Rahul has
14.
married Priyanka, who is the daughter of Ramesh and sister of Ashok.
It is the case of the prosecution that because of the relationship of the
deceased Jitender @ Jittu with Priyanka who is the wife of the
appellant, the appellant and other accused have decided to eliminate
the deceased. It is true that the entire case rests upon the
circumstantial evidence. In ocular evidence there is a deposition of
PW3 and PW12 who are brother and mother respectively of the
deceased. Merely because two of the witnesses are related to the
deceased, that by itself, is no ground to discard their testimony. If
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their testimony is corroborated by other evidence on record, same can
be relied on to establish the guilt of the accused.
15. In this case PWs1 and 2 were declared hostile and PW3
also, at some stage, was declared hostile. He was crossexamined by
the counsel for the prosecution. In his chief examination, PW3 (Anil),
brother of the deceased (Jittu) has deposed that, Jitender alias Jittu
was his younger brother. On 06.08.2010, Ramesh from village
Chandwas had come to his house and he told Jittu in his presence at
about 02:00 or 02:30 p.m. that appellant (Rahul) would come in the
evening and he had a programme of going to Haridwar in order to
bring ‘ . Thereafter in the evening at about 05:00 p.m., he, his
kawar’
mother and brother Jittu went to Badhra in a bus. They purchased
some articles and after some time Jittu separated from them and after
two hours, Rahul (appellant), Jittu and Ashok came in a Maruti car
800 CC No.DL9CJ5165 and told them that they were going to
Haridwar and would come back in 34 days. Jittu had gone with
Rahul and Ashok. After 34 days he tried to contact his brother on
his mobile, but both the mobiles were switched off. Further, he has
deposed that on 14.08.2010 his sister had read the newspaper and
told him the description of cloths and slippers which were mentioned
in the newspaper. Thereafter, he also read the newspaper, as such
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they went to Police Station and saw the cloths of Jittu and the
photographs of dead body of Jittu. They identified the cloths and
photographs of Jittu. At that time he did not have any suspicion on
anyone. After he has deposed to some extent by way of chief
examination, he was declared hostile at the request of the Public
Prosecutor and he was further crossexamined by the Public
Prosecutor. In the crossexamination, he has admitted that he stated
to police that his brother had made a telephone call to Priyanka
sister of Ashok Kumar and on that, Ashok and Ramesh came to their
house and protested, and that might be the reason for murdering his
brother Jittu. Senior Scientific Officer – Ravinder Pal Singh was
examined as PW4 and in his deposition, he stated that he along with
his assistant inspected the spot and prepared his report under Ex.PE
and he also prepared the rough sketch Ex.PF. Doctor who had
conducted post mortem examination, namely, Dr. Hitesh Chawla, was
examined as PW5. In his deposition he has stated that he along with
Dr. Jitender Jakhar conducted post mortem examination on the body
of a male individual on 09.08.2010 and they have noticed following
injuries :
“The length of the body was 180 cm. The body was
wearing :
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(1) A multicoloured (orange, white, black check shirt)
full sleeved, with imprint over its inner back as shown
in postmortem report. The shirt was blood stained and
showing holes corresponding with underlying injuries.
(2) A white baniyan with trademark as Rupa’s Joy 90
cm. The baniyan was blood stained.
(3) A cream pant with hook and zip tied in situ. The
pant was blood stained and having a trademark over
inner side of zip as shown in post mortem report.
(4) Blue and grey stripes underwear with elastic waist
having imprint Jockey over its elastic.
(5) Red thread around neck having a yellow metallic
locket of “Shivji” in it.
The body was at room temperature. It was emitting foul
smell. Clusters of eggs and maggots of size 0.30.5 cm
were present all over the body at places. Scalp hairs
were black, 68 cm long, peeled off with moderate
traction. The mouth, lips and tongue was deformed.
The eyes were closed. Moustaches were 0.30.5 cm long
black, beard was shaven. The mouth was open with tip
of tongue protruding out. Facial features were
distorted. Rigor mortis was passed off; marbled
appearance of skin was present at places. Epidermis
was peeled off at places. The chest was tense.
Abdomen was distended. Greenish discoloration was
seen over anterior abdominal wall. Pubic hairs were 23
cm long, black coloured and curly. Penis and scrotum
were distended.
All ends of long bones were fused including medial end
of clavicle. Cranial sutures namely sagittal, coronal &
lambdoid were not obliterated on the inner table as well
as outer table of skull. Body of sternum was fused;
xiphoid and manubrium were not fused. All third
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molars were erupted and showing mild to moderate
attrition.
The following injuries were over the body:
(1) A firearm entry wound of size 2.5 x 2.0 cm over
right anterior chest wall, 3 cm medial to right nipple, 5
cm away from midline and 140 cm above right heel.
The margins of wound were irregular, inverted and
abrasion collar for 35 mm was present all around the
entry wound. The wound was directed laterally
downwards, backwards from left to right, piercing the
rd th
3 and 4 ribs anteriorly, pleura and underneath lungs
to emerge out as wound no.2.
(2) A firearm exit wound of size 1 x 0.5 cm over upper
back right side, 10 cm away from midline and 15 cm
below shoulder blade. The margins of wound were
everted and irregular.
(3) A firearm entry wound of size 2 x 2 cm over left
anterior chest wall, 4 cm medial to left nipple and 5 cm
away from midline and 139 cm above left heel. The
margins of wound were irregular, inverted and abrasion
collar for 35 mm was present all around the entry
wound. The wound was directed backwards,
rd
downwards, from left to right, piercing the 3 intercostal
space, underneath pleura, lung, the pericardium, base
of heart and trachea. The bullet was found embedded
just beneath the skin, in muscular space over right
upper back along the inferior border of scapula, 12 cm
away from midline and 18 cm below shoulder blade.
The length of bullet was 3.0 cm. The whole of track was
ecchymosed in its entire length.
(4) A firearm entry wound of size 3.0 x 2.0 cm over
left side of face, lateral to left angle of mouth and 155
cm above left heel. The margins of wound were
irregular, inverted. The medial end of wound was
reaching up to lateral angle of mouth. The would was
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directed medially backwards and upwards from left to
right; the left ramus of mandible, left maxilla and right
maxilla was fractured into multiple pieces with the
fractured ends showing infiltration of blood; to emerge
out as wound no.5.
(5) A firearm exit would of size 2.5 x 2.0 cm situated 5
cm behind right ear. The margins of wound were
everted and irregular.
The topographic representations of the injuries
described was made and attached with post mortem
report.
The following findings were observed on systemic
examination :
Skull, vertebrae and internal organs of generation were
healthy. The membranes of brain, hyoid and
peritoneum were intact. Brain was thickish, grayish
pasty. The large vessels and urinary bladder were
empty. Stomach contained app. 30 cc. of mucoid
material and its mucosa was pale. Small intestine
contained chime. Large intestine contained fecal matter
and gases. The liver, spleen and kidney were pale and
softened.”
The doctor (PW5) has deposed that the cause of death was because of
firearm injuries and they were ante mortem in nature. Probable time
that elapsed between injuries and death was immediate and that of
between death and post mortem examination was 13 days. Further,
through him, it is proved that the fired bullet Ex.P1 was the same
which was taken out from the body of the deceased. The complainant
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(Jaswant Singh) who has informed to the police at first instance, was
examined as PW6. He has deposed, reiterating the information which
he has given to police. The draftsman who prepared the scaled site
plan Ex.PT was examined as PW7 and to prove the photographs
Ex.PW8/1 to Ex.PW8/8, PW8 Inderjit was examined. PW10 Head
Constable Arvind Kumar, who was on patrolling duty along with other
police officials, has inspected the car of the appellant on 21.08.2010
and he was interrogated by the investigating officer to whom
disclosure statement was made under Ex.PV. Further, PW10 has
also pointed out that the appellant has disowned the earlier statement
and stated that he concealed the pistol and cartridges in House
No.160, Housing Board, Bhiwani in the house of his Bua . That
disclosure statement was recorded as Ex.PX. The mother of the
deceased PW12 (Kasturi) in her deposition while stating that Jittu
was taken by the appellant (Rahul) and Ashok from the bus stop
stating that they were going to Haridwar to bring . She has
‘kawar’
further stated that few days prior to occurrence, a panchayat was
convened by Ramesh and Ashok on the point that her son Jittu was
making telephone calls to daughter of Ramesh and only due to this
the accused have killed her son. PW16 – Investigating Officer (Sarif
Singh) in his deposition has clearly stated that he lifted two empties
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from the spot and they were taken into possession and sealed vide
memo Ex.PL. He also stated that he lifted bloodstained earth from
the spot which was sealed in parcel vide memo Ex.PK. Further, PW
17 – ASI Amir Singh in his deposition has stated that on 25.08.2010
he was posted as I.O. at Police Station Charkhi Dadri and after
arresting Rahul he has interrogated him and he made his disclosure
statement Ex.PLL. Vijender Singh, Dy. Superintendent of Police/SHO,
P.S. Sadar, Dadri was examined as PW20 on 31.08.2010.
In defence, accused examined DW1 – Rani, widow of Jagdish,
16.
resident of House No.160, Old Housing Board Colony, Bhiwani. In her
deposition, she has stated that appellantaccused is her real nephew.
Though she has stated in her crossexamination that appellant
(Rahul) never resided with her and he was residing in village Mirpur,
Distt. Meerut, has clearly admitted that police officials had come to
her residence. Though she was examined to disprove the recovery of
pistol from her house at the instance of the appellant, but at the same
time she has admitted in the crossexamination that police officials
had come to her house about a year and half earlier to her statement.
17. Though it is mainly contended by the learned counsel for the
appellant that the motive attributed is an improved version in the
statements made by PW3 and PW12, but in a case of this nature it is
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to be noticed that deceased was known to the appellant (Rahul) and
Ramesh. Merely because PW3 has deposed at first instance that
there was no suspicion or any animosity between the deceased and
the appellant but at the same time he has clearly stated that on
06.08.2010, Ramesh, the other accused had come to village
Chandwas and in his presence Ramesh told to Jittu at about 2:00 or
2:30 p.m. that Rahul would come in the evening and they have
planned to go to Haridwar in order to bring ‘kawar’ . Further, it is also
clearly deposed that the same day evening PW3 – Anil went along
with his brother Jittu and his mother Kasturi – PW12 to Badhra in a
bus and they purchased some articles, thereafter Jittu was separated
and after two hours Rahul, Jittu and Ashok came in a Maruti car and
stated that they were going to Haridwar and would come back.
Initially no suspicion was indicated but at the same time when PW3
was declared hostile and in crossexamination by the Public
Prosecutor he has admitted that he stated to police, his brother Jittu
had made a telephone call to Priyanka, sister of Ashok Kumar and on
that Ashok who is the brother of Priyanka and Ramesh, father of
Priyanka, came to their house and protested. He also indicated, that
might be the reason for murdering his brother Jittu by the appellant
and other accused. PW12 who is the mother of the deceased has, in
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clear terms, stated that few days prior to the occurrence, a panchayat
was convened by Ramesh and Ashok on the point that her son Jittu
was making telephone calls to daughter of Ramesh and due to this
they killed her son. Although it is the contention of the counsel for
the appellant that as PW3 and PW12 are family members/close
relations of the deceased, as such, their testimony is to be discarded,
but the same cannot be accepted. Merely because PW3 and PW12
are related, by itself is no ground, to reject their testimony. Further, a
close relative who is a natural witness cannot be regarded as an
interested witness. It is fairly well settled proposition that even the
evidence of interested person can also be considered provided such
evidence is corroborated by other evidence on record. At this stage, it
is apposite to refer to a judgment of this Court in the case of
4
v. . Paragraphs 24 and
Kanhaiya Lal & Ors. etc. State of Rajasthan
25 of the said judgment read as under :
In Hari Obula Reddy v. State of A.P. (1981) 3 SCC
“24.
675 a threeJudge Bench has opined that it cannot be
laid down as
“an invariable rule that interested evidence can never
form the basis of conviction unless corroborated to a
material extent in material particulars by
independent evidence. All that is necessary is that
the evidence of the interested witnesses should be
4 (2013) 5 SCC 655
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subjected to careful scrutiny and accepted with
caution. If on such scrutiny, the interested
testimony is found to be intrinsically reliable or
inherently probable, it may, by itself, be sufficient, in
the circumstances of the particular case, to base a
conviction thereon.” (SCC pp.68384, para 13)
25. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614
this Court has stated (SCC p.621, para 15) that a close
relative who is a natural witness cannot be regarded as
an interested witness, for the term “interested”
postulates that the witness must have some interest in
having the accused, somehow or the other, convicted for
some animus or for some other reason.”
While rejecting the plea that the witnesses were in close relation to the
5
deceased, in the case of v.
Ram Chander & Ors. State of Haryana
this Court has held as under :
“ The submission of the learned counsel for the
33.
appellants that since Guddi (PW 9) was in close relation
with the deceased persons, she should not be believed
for want of evidence of any independent witness,
deserves to be rejected in the light of the law laid down
by this Court in Dalbir Kaur v. State of Punjab (1976) 4
SCC 158 and Harbans Kaur v. State of Haryana (2005)
9 SCC 195, which lays down the following proposition
( Harbans Kaur case , SCC p.198, para 7)
“ 7. There is no proposition in law that relatives are
to be treated as untruthful witnesses. On the
contrary, reason has to be shown when a plea of
partiality is raised to show that the witnesses had
reason to shield the actual culprit and falsely
implicate the accused.”.”
5 (2017) 2 SCC 321
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Crl.A.@S.L.P.(Crl.)No.3449 of 2019
18. It is clear from the deposition of PW5 (doctor) and the post
mortem report that, injuries were caused over the body of the
deceased with a firearm and the bullet was found embedded in the
body. It is also clearly stated that death was due to firearm injuries
and was ante mortem in nature. He has clearly stated that the fired
bullet which was marked as Ex.P1 was the same which was taken out
from the body of the deceased.
If we closely scrutinize the oral evidence on record coupled
19.
with the documentary evidence, we are of the considered view that
there is a complete chain of evidence which would lead to irresistible
conclusion that the appellantaccused has committed the offence and
none else. Even the recoveries are sufficiently proved with the cogent
evidence. In the disclosure statement the appellantaccused has
stated that he has kept the weapon with his Bua at House No.160,
Old Housing Board Colony, Bhiwani. Though she was examined on
behalf of the accused to disprove the recovery, at the same time, she
has admitted in the crossexamination that police have visited her
place a year and a half earlier to her statement. If this part of
evidence is examined, coupled with the other documentary evidence
on seizure, there is no reason to disbelieve the recovery of weapon,
from the residence of appellant’s Bua , i.e., House No.160, Old Housing
23
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
Board Colony, Bhiwani. All the recoveries have been proved by
examining witnesses for such recoveries. Only in view of the
disclosure statement Ex.PX recoveries of pistol .315 bore and
cartridges were made from the house of his Bua at Bhiwani vide
recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report
Ex.PXX, the country made pistol .315 bore used by the accused
appellant for committing the murder of the deceased was found in
working order and both the fired cartridges recovered from the spot
and fired bullet taken out from the body of the deceased, are found
fired from the country made pistol recovered at the instance of
accused (Rahul). Further, the injuries on the person of deceased have
been proved by doctor who was examined as PW5. The material
evidence on record produced by the prosecution has been further
corroborated by call details of mobile phones of Ramesh, Ashok
Kumar and Jitender and such call details have been proved by the
statement of PW14. Further, it is also well settled that if other
evidence on record clearly establishes that the deceased was
murdered by the appellant by using firearm, the factum of motive
loses its importance, more so, in this case the motive has been
established by leading cogent evidence to show that only because the
24
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
deceased had developed relationship with appellant’s wife Priyanka,
has decided to eliminate the deceased.
20. From the evidence on record, we are of the considered view
that prosecution has proved the guilt of the accused beyond
reasonable doubt by leading cogent evidence. Further, the motive is
also proved by the prosecution.
1
21. In the case of Sanjay Thakran relied on by the learned
counsel for the appellant, this Court has held that certain tests are to
be fulfilled by the prosecution by leading cogent evidence, when the
case rests upon circumstantial evidence. Further, in the case of
3
Wakkar this Court has held that mere recovery itself cannot be the
basis for conviction and recovery of incriminating articles and its
evidentiary value has to be considered in the light of other relevant
circumstances. However, having regard to evidence on record in this
case on hand, we are clearly of the view that the prosecution has
1
satisfied all the tests mentioned in the case of to
Sanjay Thakran
bring home the guilt of the accused, by resting upon the
circumstantial evidence. If the factum of recoveries is considered
along with other evidence in entirety, it gives an irresistible conclusion
that the appellant alone has committed offence by using the weapon,
25
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
which is recovered from the house of DW1 who is the Bua of the
appellant. Further, it is also to be noted that whether the guilt of the
accused is proved or not based on the circumstantial evidence, each
case has to be judged on the overall assessment of the evidence on
record, as such we are of the view that the case law which is referred
above, relied on by the learned counsel for the appellant, would not
render any assistance to accept his plea that the appellant was falsely
implicated.
22. The High Court, in the appeal filed by the appellant herein
and another accused Ramesh, reappreciated the evidence on record
and confirmed the conviction and sentence, so far as the appellant is
concerned and acquitted the other appellant, i.e., Ramesh. Though it
is contended by learned counsel appearing for the appellant, on same
set of evidence while acquitting the other accused Ramesh there is no
reason to confirm the conviction and sentence so far as the appellant
herein is concerned. In the impugned judgment, the High Court has
recorded reasons for acquittal of the other appellant, i.e., Ramesh.
PW3 Anil, in his deposition has clearly stated that when he along
with his mother and deceased Jittu, went to Badhra, after some time
Jittu was separated from them, and came back along with Rahul
(appellant) and Ashok (proclaimed offender) in a Maruti car. It is
26
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
stated by PW3, at that time Jitender @ Jittu stated that he was going
to Haridwar and would come back in 34 days. Thereafter, Jitender @
Jittu went along with Rahul and Ashok. To the same effect is the
statement of PW12 (Kasturi), mother of the deceased. From the said
evidence on record, it stands established that the deceased Jitender @
Jittu was last seen in the company of Rahul (appellant) and Ashok
(proclaimed offender) only. There was no mention that Ramesh
(appellant before the High Court) also accompanied Jitender @ Jittu
for going to Haridwar. In the absence of any evidence on record to
show that deceased was also seen with Ramesh lastly by PW3 and
PW12, the High Court has come to the conclusion, that prosecution
has not proved its case beyond reasonable doubt so far as the other
appellant Ramesh is concerned. In view of such reasoning recorded
by the High Court and evidence on record there are justifiable reasons
for acquitting the other appellant, namely, Ramesh, while confirming
the conviction so far as the appellant herein is concerned.
23. For the aforesaid reasons, as the appeal is devoid of merits,
same is dismissed. However, as it is stated by learned counsel for the
appellant that he has already served sentence for more than 11 years,
it is needless to observe, that after completing 14 years of sentence it
is open to the appellant to make representation for remission of the
27
Crl.A.@S.L.P.(Crl.)No.3449 of 2019
sentence. If such representation is made, the concerned
authority/Jail Superintendent has to send the same to the
Government which is to be considered in accordance with the policy of
the State.
………………………………J.
[Ashok Bhushan]
………………………………J.
[R. Subhash Reddy]
New Delhi.
March 03, 2021.
28