Surendra vs State Of Rajasthan

PART-II

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 641 of 2007

SURENDRA ..... APPELLANT

VERSUS

STATE OF RAJASTHAN ..... RESPONDENT

WITH CRIMINAL APPEAL NO. 947 OF 2011 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7324 OF 2010

O R D E R

1. These appeals by way of special leave arises out

of the following facts:

1.1 Mukesh P.W., son of the deceased Tara Chand and

Phoola Devi returned home at 7:30p.m. on 24th December,

2000 and found that his parents were lying dead in the

verandah of the house. An FIR was, accordingly,

lodged against unknown persons but on investigation the

police found out that four persons had been involved in

the murders, they being Juglal, the brother of the

deceased Tara Chand, Satpal, Son in Law of Juglal,

Crl.A. 641 of 2007

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Surendra the appellant before us, and Rajesh, son of

Surja Ram. The trial court, by its judgment dated 11th

January, 2002, acquitted Juglal and Rajesh but

convicted Satpal and Surendra under Section 302 on two

counts and sentenced them to imprisonment for life

under Section 302/34 of the Indian Penal Code along

with fine. The trial court observed that there were no

eye witnesses to the murders and that the prosecution

story depended for proof exclusively on circumstantial

evidence. Five circumstances in all were, accordingly,

determined; they being: (i) death of Tara Chand and

Phoola Devi was homicidal; (ii) motive for the

commission of the murder; (iii) that the two appellants

had been seen near the place of occurrence at about the

time when the murders had been committed; (iv) recovery

of incriminating articles at the instance of the

appellants; and (v) false explanation with regard to

the alibi claimed by them.

1.2 The trial court found that the death of Tara

Chand and Phoola Devi was admittedly homicidal. It was

further found that the motive for the incident was also

proved in the light of the evidence of PW 10 Mukesh who

stated that his father and uncle Juglal, though real

brothers, had very strained relations over trivial

Crl.A. 641 of 2007

3

matters and that their disputes had also gone to court

and that just a few days before the incident an

unpleasant scene had been created at the time of the

fixing of the electricity connection in the house of

Juglal and an exchange of heated words had followed

inter se the parties. The trial court, accordingly,

relying on the evidence of Mukesh and three other

persons Hari Singh, Goverdhan and Dharam Pal who were

involved with the parties held that the motive for the

murder had also been proved on record. The trial court

then went to the last seen aspect that the appellants

had been seen near the place of incident. The trial

court relied on the evidence of PW - 10 Mukesh, PW - 4

Ram Chand and PW - 14, Bharat Singh who stated that

they had seen the appellants along with the acquitted

accused near the place of incident and that they had

been identified by them. Mukesh P.W. and Ram Chand

further stated that they had identified Satpal in the

torch light and that he was the one primarily

responsible for the murders. The trial court also

found that the fourth circumstance with regard to the

recoveries had been proved as the blood found on the

recovered articles and the murdered weapons matched the

blood group of the deceased Phoola Devi and Tara Chand.

It was also found that the alibi tendered by the

Crl.A. 641 of 2007

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appellants could not be accepted and as a false

explanation had been tendered this again was a

circumstance against them.

1.3 The matter was thereafter taken in appeal. The

High Court has affirmed the judgment of the trial

court. Two appeals have been filed against the

judgment of the High Court, one by Surendra being

Criminal Appeal No. 641 of 2007 and the other by Satpal

being SLP(Crl) No. 7324 of 2010. We grant leave in

the above Special Leave Petition.

2. We have heard the learned Amicus Curiae for the

appellants in both the appeals. We find that the death

of the deceased was undoubtedly homicidal and the

evidence of motive has also been proved on record. We

have, however, serious doubt with regard to the last

seen evidence and the recoveries of the incriminating

articles at the instance of the appellants. In the

background that the complainant party and the accused

were very closely related the question of last seen

would have been an extremely relevant circumstance. In

this connection, we have gone through the evidence of

P.W. 4 Ram Chand and it makes rather interesting

reading. In the course of his examination in chief he

Crl.A. 641 of 2007

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deposed that he had seen three persons in the light of

a torch at the time when he was returning home but he

could recognise only one i.e. Satpal (appellant in

Criminal Appeal No.947 of 2011). In the cross

examination, he admitted that he had met his cousin

Mukesh PW and the Police Inspector at about 9 or

10:00a.m. the next morning but he did not tell either

of them at that stage that he had seen three persons

coming out of the house of Tara Chand and Phoola Devi

and that one of them was Satpal. He also deposed that

he had not told anybody in the village about the

identity of the three persons. He admitted that he had

told Mukesh with regard to the involvement of Satpal on

the next day but even then Mukesh did not take him to

the Police and it was after many days that one Hari

Singh had done so and that he had made a statement to

police thereafter.

3. We also find that statement of PW 14 is equally

uncertain. He was also closely related to the accused

and the deceased and had tried to show that he was a

witness to the motive. In his examination in chief he

stated that he had seen all four accused sitting

together outside the house of the deceased plotting out

the murders but he has confronted with his statement

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under Section 161 of the Cr.P.C. where he had not given

the names of the assailants. We also find that in the

face of this very uncertain evidence it would have

been incumbent on the prosecution to have put the

appellants before an identification parade. This was

not done and it is the admitted case that both the

appellants were identified by the witnesses in Court

for the first time during the course of the trial.

Moreover, Surendra, appellant was a resident of a

village 70 kms away from the place of incident. We

are, therefore, of the opinion that the last seen

inspires no confidence.

4. We now come to the recoveries of the alleged

murder weapons. The appellants were arrested on the

11th of January, 2001 and the recoveries were made 2/3

days thereafter but the articles were sent to the

laboratory on the 19th of March, 2001. Even otherwise,

we are of the opinion that as the evidence of last seen

itself is unacceptable the recoveries by themselves

would not make any difference. Moreover even if a

false plea had been taken by the accused that by itself

will not be enough to maintain their conviction and as

the prosecution story itself suffers from glaring

infirmities the infirmities in the prosecution case

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cannot be filled up by a false plea of alibi. We are

conscious of the fact that this is a case of double

murder but in the absence of any cogent evidence, we

are unable to sustain the conviction. We, accordingly,

allow both the appeals and set aside the orders of the

trial court as well as the High Court and direct the

acquittal of the appellants.

5. The fee of the learned Amicus is fixed at

`7,000/- in each case.

6. We are told that Satpal is in custody. He shall

be released forthwith if not required in connection

with any other case. Bail bonds of Surendra stand

discharged.

.........................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI APRIL 13, 2011.

Crl.A. 641 of 2007

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PART-I IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 641 of 2007

SURENDRA ..... APPELLANT

VERSUS

STATE OF RAJASTHAN ..... RESPONDENT

WITH CRIMINAL APPEAL NO. 947 OF 2011 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7324 OF 2010

O R D E R

Leave granted in SLP (Crl) No. 7324 of 2010. We have heard the learned counsel for the

parties.

Vide our separate reasoned order, we have

allowed these appeals. The appellant Satpal who is

stated to be in custody shall be set at liberty

forthwith if not required in connection with any

other case.

The reasoned order shall be separately placed

on record.

.........................J [HARJIT SINGH BEDI]

........................J [CHANDRAMAULI KR. PRASAD]

Crl.A. 641 of 2007

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NEW DELHI APRIL 13, 2011.