DINESH LAL Vs. STATE OF UTTARAKHAND

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1314 of 2015, Judgment Date: Oct 06, 2015

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1314 OF 2015
(ARISING OUT OF SLP (Crl.) NO. 10250 OF 2014)

DINESH LAL ………APPELLANT

Vs.

STATE OF UTTARAKHAND ……RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J.
Leave granted.
This criminal appeal by special leave is directed against the impugned
judgment and order dated 3.7.2013 passed in Crl. A. No. 153 of 2010 by the
High Court of Uttarakhand at Nainital whereby it affirmed the judgment and
order dated 10.6.2010 passed by the District & Sessions Court, Tehri
Garhwal, New Tehri (for short the “the Trial Court”) in Sessions Case No.
16 of 2009, convicting the appellant herein for the offence punishable
under Section 302 of Indian Penal Code, 1860 (for short “IPC”) and Section
4/25 of the Arms Act, 1959 and sentenced him to life imprisonment with a
fine of Rs.20,000/- for the offence punishable under Section 302 of IPC and
two years rigorous imprisonment with a fine of Rs.10,000/- for the offence
punishable under Section 4/25 of the Arms Act, 1959. Both the sentences
imposed upon him for the abovesaid offences were to run concurrently.
Brief facts are stated hereunder to appreciate the rival legal
contentions urged on behalf of the parties:
On 11.03.2009 complainant Jotar Das submitted a written complaint
to Naib Tehsildar, Jakhnidhar, District Tehri Garhwal, Uttarakhand
regarding the murder of his daughter, Kumari Kusum (hereinafter referred to
as “deceased”).
In the said complaint it was stated by him that a proposal for the
marriage of the deceased was made by the appellant about 4 months back from
the date of the said written complaint. The appellant used to visit the
house of the complainant but he refused to give his daughter in marriage to
the appellant after hearing complaints about his activities.
On 11.03.2009, it is alleged that at about 11.30 AM the appellant
reached Vartyakhund, through jungle where the deceased was cutting grass
along with her grandmother Smt. Madi Devi (PW-1) and her aunt Smt. Ram Maya
Devi (PW-2). After reaching there the appellant attacked the deceased with
a ‘khukri’ (a sharp edged weapon), at the left side below her heart, as a
result of which she died on the spot. Thereafter, he hit himself with the
same ‘khukri’ below his naval and fell unconscious. This information of
murder was given to the complainant by his mother Smt. Madi Devi (PW-1),
who witnessed the murder of the deceased along with PW-2.
On the basis of the written complaint, FIR in Crime Case No. 02/2009 was
registered against the appellant. The matter was investigated by the
investigation officer and the charge sheet was filed against the appellant
for the offences punishable under Sections 302 and 309 of IPC and under
Section 4/25 of the Arms Act, 1959.
The Trial Court convicted the appellant for the offences punishable
under Section 302 of IPC and Section 4/25 of the Arms Act, 1959 and he was
awarded the sentence of life imprisonment with a fine of Rs.20,000/- for
the offence punishable under Section 302 IPC and sentence of two years
rigorous imprisonment with fine of Rs.10,000/- for the offence punishable
under Section 4/25 of the Arms Act, 1959. The above sentence was imposed
upon the appellant for the offences referred to supra were to run
concurrently.
Aggrieved by the decision of the Trial Court, the appellant filed an
appeal before the High Court urging various grounds and prayed for setting
aside the judgment and order passed by the Trial Court and acquit him of
the charges framed against him. The High Court upheld the decision of the
Trial Court holding that no attempt was made by the appellant to establish
his plea. Hence, this appeal.
Mr. A.S. Pundir, learned Amicus Curiae for the appellant contended that
the High Court has gravely erred in placing reliance on the depositions of
Smt. Madi Devi (PW-1), Smt. Ram Maya Devi (PW-2), Smt. Shanti Devi (PW-3),
Jotar Das (PW-4) and Ramesh (PW-8) as all were the members of same family
and it was natural for these interested witnesses who have stated a
concocted version against the appellant in order to save the main assailant
Ramesh (PW-8), who actually attacked the two victims i.e., the deceased and
the appellant, in his outrage against the deceased. The said attack
resulted into the death of the deceased and serious injuries caused to the
appellant. He further urged that the courts below have erred in not
noticing the concocted case set up by the prosecution against the appellant
which is most unnatural. He further submitted that there is lot of
inconsistency in respect of the time of occurrence of incident that was
stated by Smt. Madi Devi (PW-1) and Ram Maya Devi (PW-2) in their
statements of evidence, which is sufficient to show that none of said
witnesses could have been available on the spot at the time of the
incident.
He further contended that the High Court has failed to appreciate that the
Trial Court erred in using the part of statement of the appellant made
under Section 313 of the Code of Criminal Procedure, 1973 about the injury
caused to him by ‘khukri’ while ignoring the rest of the statement
regarding the assault being made by Ramesh, the brother of the deceased
upon him. Therefore, the concurrent findings of fact recorded by the High
Court on the charge framed against appellant in exercise of its appellate
jurisdiction and upheld the Trial Court’s decision, which is erroneous in
law as the same is without proper re-appraisal of the evidence. On this
ground itself the impugned judgment and order of the High Court is required
to be set aside by this Court in exercise of its appellate jurisdiction.
On the other hand, Mr. Ashutosh Kumar Sharma learned counsel for the
respondent-State sought to justify the concurrent findings of fact recorded
in the impugned judgment and order by the High Court contending that Smt.
Madi Devi (PW-1), who is an eye witness to the entire incident of murder,
has clearly narrated the whole incident in her examination in chief
evidence before the Trial Court and also successfully identified the
accused in the Court. Smt. Ram Maya Devi (PW-2) supported the version of PW-
1. The deposition of the said witnesses and other prosecution witnesses
were found to be reliable and trustworthy by the Trial Court, upon which
the High Court also gave a concurrent finding. Therefore, the same does not
need interference by this Court in exercise of its appellate jurisdiction.
It was further contended by him that the plea of the appellant that PW-8
used ‘khukri’ against him but the deceased came in between as a result of
which, she received fatal injuries which caused her death is totally
untenable as the appellant has not made any effort at all to give any
evidence before the Trial Court in support of the said plea and not even
bothered to offer himself for examination to adduce evidence in support of
his defence before the Trial Court. Therefore, the High Court was right in
concurring with the judgment of the Trial Court.
This Court at the admission stage vide its order dated 2.2.2015 issued
notice only for limited purpose to find out as to whether the matter can be
remitted back to the High Court for re-appraisal of the evidence.
We have heard the learned counsel for the parties and carefully examined
the concurrent findings recorded by the High Court on the charges. From a
bare perusal of the impugned judgment and order it is abundantly clear that
the High Court has passed a cryptic order without appraising the evidence
properly and scrutinising the depositions of PW-1 to PW-4 and PW-8, who
are all members of the same family and they are interested witnesses. The
Trial Court appears to have ignored the appellant’s version that it was PW-
8, who actually used ‘khukri’ to attack the appellant but unfortunately the
deceased came in between as a consequence of which she received fatal
injuries which resulted in her death. The Trial Court has paid little heed
to this aspect of the matter while passing its judgment and order of
conviction and awarding sentence upon the appellant. It has relied upon the
depositions of the interested witnesses of the prosecution after
disbelieving the case of the appellant holding that he did not tender
himself for examination before the Trial Court in support of his defence.
The impugned judgment and order passed by the High Court is neither a well
reasoned order nor based on a careful re-appraisal of the evidence on
record. The conclusion arrived at by the High Court in concurring with
the findings of the Trial Court on the charges levelled against the
appellant are based on proper appreciation of evidence is not sustainable
in law for the reason that the High Court has not re-appraised the evidence
on record while arriving at such conclusion.
The first Appellate Court is required in law to examine the case of the
appellant with reference to the ground urged in the appeal. The High Court
in law is required to re-appraise the evidence adduced by the prosecution
witnesses particularly in the light of the ground urged on behalf of the
appellant that PW-1 to PW-4 and PW-8 are interested witnesses and
therefore, their depositions should not have been accepted to record
findings of fact on the charges framed against him. As could be seen from
the reasoning portion of the impugned judgment and order no such effort is
made by the High Court, except recording the findings of fact on the
charges levelled against the appellant holding that the same are proved.
In view of the foregoing reasons, the impugned judgment and order is liable
to be set aside and we accordingly set aside the same and remand the case
to the High Court for its fresh disposal of the same in accordance with law
on merits after affording an opportunity to the parties. Needless to
mention in this Order that as the appellant is undergoing sentence imposed
upon him in the District Jail, Deharadun, Uttarakhand, and the matter is
pending from 2009, therefore, the High Court is requested to dispose of the
appeal expeditiously, but not later than 6 months from the date of receipt
of this order. With the above observations this appeal is disposed of.

…………………………………………………………J.
[T.S. THAKUR]

…………………………………………………………J.
[V. GOPALA GOWDA]

New Delhi,
October 6, 2015

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