Surendra Singh vs The State Of Uttarakhand

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

No.2113/1996) whereby the High Court dismissed ANITA MALHOTRA Date: 2018.12.05 14:48:46 IST Reason: 1 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

2 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.

3

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.

4

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).

5

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

6 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

7 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).

8 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

9 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

the intervening night of 21­22nd 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.

10

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.

11

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

12 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.

13

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.

14

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

15 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

16 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 Lachman Singh vs. 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.”

17

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

18 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.

19

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

20 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.

21

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

22 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.

23

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

24 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

the shop on the intervening night of 21­22 nd 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

25 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

26