MALTI SAHU versus RAHUL & ANR. on 11 July 2022

[2022] 7 S.C.R. 440

SUPREME COURT REPORTS

[2022] 7 S.C.R.

MALTI SAHU

A

v.

RAHUL & ANR.

(Criminal Appeal No. 471 of 2022)

B

JULY 11, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ]

Penal Code, 1860: s. 302 – Murder – Prosecution case thatrespondent committed murder of brother and sister – Complaint bythe mother – Conviction and sentence of the respondent u/s. 302Cfor committing the murder of the brother and sister by the trial court– However, the High Court set aside the order – On appeal, held:Prosecution witness had seen the accused alongwith the deceasedgoing to their house – Though he turned hostile but his evidencecan be considered to that extent – Prosecution established andDproved the motive as regards the accused – Recovery of the knife inthree pieces, having blood stains recovered from the place ofoccurrence, was used for commission of the offence, and establishesthe guilt of the accused – Also proved that it was accused whopurchased the said knife – Recovery of Loi having blood stains ofthe deceased as well as of the accused, was on the basis of theEdisclosure statement made by the accused himself – Further theaccused failed to explain the injury on him – Thus, High Courterred in holding that the prosecution failed to prove the linkevidence, which could establish and bring home the guilt of theaccused – Findings of the High Court perverse – High Court didFnot properly appreciate the entire evidence on record – Thus, theorder passed by the High Court acquitting the accused notsustainable, and is quashed and set aside.

Allowing the appeals, the Court

HELD: 1.1 Though, PW-8 initially made a statement beforeGthe Police that he had seen the accused alongwith the deceasedgoing to their house, but before the court, he turned hostile.However, during the course of cross-examination, he stated thatK-deceased, a few days before the incident had disclosed to himthat accused R had made some obscene gestures at her. As perHthe settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of theprosecution. Therefore, prosecution has established and provedthe motive as regards the accused. [Para 7][448-E-G]

1.2 Another link in the evidence, which establishes andbrings home the guilt of the accused person is the recovery ofthe knife in three pieces, having blood stains recovered from theplace of occurrence, which was used for commission of the offence.

The prosecution was successful in establishing and proving thatit was the accused, who purchased the said knife from PW-9 whonot only identified the knife purchased by the accused, but alsoclearly stated that the knife, found in three pieces is the same,which was purchased by the accused. He has also identified theaccused. As per the medical report and the post-mortem report,the cause of death was a result of hemorrhage and shockconsequent upon slitting of the throat. Thirteen ante morteminjuries were found on the person of G and eight injuries on thebody of K. It was opined that the same could have been causedby a sharp-edged weapon. PW-3, doctor who conducted the post-mortem stated in her evidence that the injuries could be possiblewith the weapon examined when taken as a whole-single weapon.She stated that even the throat injury was possible with threepieces and it was possible that the weapon might have brokenduring the process. It has been established and proved that duringthe use of weapon-knife, in commission of the offence, the samemight have been broken. [Para 7.1][448-H; 449-A-E]

1.3 The next link in the chain of evidence is the recoveryof Loi having blood stains of the deceased K as well as of theaccused, which Loi was recovered on the basis of the disclosurestatement made by the accused himself. Though, Panchas to therecovery panchnama/disclosure panchnama had turned hostile,still the prosecution has proved the same through the I.O.However, unfortunately, the High Court has doubted the DNA/CFSL report on grounds, which are not germane, namely, thehuman hair in the hands of K was not examined; blood stainswere not properly presented. However, the High Court has notgone in the detailed discussion of the CFSL Report on record.Having gone through the CFSL Report as well as the depositionsof the witnesses from the CFSL, the blood on the Loi was found A

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Ato be matching with that of K and the accused. [Para 7.2][449-E-H]

1.4 One another circumstance, which will go against theaccused would be that an injury on the ring finger of the left handof the accused was found, which was treated by PW-20, doctorBwho stated that on seeing the injury, he found it could be due to asharp-edged weapon. The accused has failed to explain the injuryon him. On the contrary, he came out with a false case that theinjury was caused by some iron bar, which has not beenestablished and proved. [Para 7.3][450-A-C]

C

C1.5 Considering the said facts of the case and evidence onrecord, the High Court committed a grave/serious error inobserving that the prosecution has failed to prove the linkevidence, which could establish and bring home the guilt of theaccused. The findings recorded by the High Court are perverse.The High Court has not properly appreciated the entire evidenceDon record, more particularly, the findings recorded by the trialcourt, which as such were on appreciation of the entire evidenceon record. Under the circumstances, the impugned judgment andorder passed by the High Court reversing the conviction andconsequently acquitting the accused is unsustainable and theEsame is quashed and set aside. The judgment and order ofconviction and sentence imposed by the trial court on the accusedfor the offence u/s. 302 IPC is restored. [Para 8, 8.1, 9][450-C-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.471 of 2022.F

From the Judgment and Order dated 01.10.2019 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. D-635-DB of 2014.

With

GCriminal Appeal No. 472 of 2022.

Neeraj Kumar Jain, Sr. Adv., Sanjay Singh, Umang Shankar, SaradKr. Singhania, Ms. Swaroopama Chaturvedi, Ms. Ruchi Kohli, Ms. Preeti Rani, Bhuvan Kapoor, Gurmeet Singh Makker, Jasmeet Singh, Advs.for the Appellant.

Aditya Dhawan, Ms. Kiran Dhawan, Chander Shekhar Ashri,Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Punjab & Haryana at Chandigarhin CRAD No. 635 of 2014 by which the High Court has allowed the saidappeal preferred by the respondent – accused – Rahul and has quashedand set aside the judgment and order of conviction and sentence passedby the Trial Court convicting the accused for the offence under Section302 IPC for committing the murder of one Kavita Sahu and GaurangSahu, the State as well as the original complainant/informant – motherof the deceased have preferred the present appeals.

2. On the statement of one Malti Devi, which got recorded on16.12.2011, in which she stated that she and her husband were Teachersby profession. That her husband was posted at Mewat, Haryana andshe was posted in Sector-17, Panchkula. They had two children, i.e.,elder daughter Kavita, about 17 years of age, who was the student ofGuru Nanak Public School, Sector-36, Chandigarh, whereas her youngerson Gaurang Sahu was the student of Govt. Model Senior SecondarySchool, Sector-37, Chandigarh. On that day, she had left the home at8.30 A.M. for duty and both the children were at home, it being theirholiday. On her return at about 3.00 P.M., she found her daughter in apool of blood with a cut on her neck and when she went upstairs, shefound her son also in a pool of blood and his neck also had a cut. All thearticles in the room were lying scattered.

2.1 On the said statement/complaint, the case was registered andinitially the investigation was carried out by the local police station. Specialreports were sent and investigation was commenced. The InvestigatingOfficer collected the incriminating material from the spot. They wereconverted into parcels and sealed with seal of “CS”. The dead bodieswere sent to the General Hospital, Sector – 16, Chandigarh for post-mortem examination. During the course of the investigation, thestatements of the witnesses under Section 161 Cr.P.C. were recorded A

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Aincluding the statement of PW–8, Sidharth Vashisht, who, at the relevanttime, disclosed that he had seen the accused Rahul alongwith Kavitaand Gaurang coming from the side of Shivalik Public School on footgoing towards their locality wearing a blue colour sweater and whilereturning, he (Rahul) was not wearing the said blue colour sweater andrather, he had covered himself with a brown coloured shawl or Loi.B

2.2 On the basis of the statement made by PW–8, Sidharth Vashisht,the police started to search for the culprit - Rahul. Later the case wastransferred to the Crime Branch (SIT), Chandigarh and the investigationwas commenced by Inspector Amanjot Singh. During the investigation,the sealed parcels were sent to CFSL, Sector 36, Chandigarh. As notedChereinabove, Rahul was suspected of commission of offence on thebasis of statement of PW–8, Sidharth Vashisht and therefore, a searchwas launched for him. He was found missing from his house. He waslater arrested on 17.01.2012 from Village Saha, District Ambala andproduced in the Court.D2.3 On the basis of his disclosure statement, under Section 27 of D2.3 On the basis of his disclosure statement, under Section 27 ofthe Evidence Act, a bag containing blood-stained clothes was recovered.That during the course of the investigation, one sweater was recoveredfrom the crime scene and the said sweater was sent to CFSL. Oneblood-stained Loi and the clothes were recovered from the black bag,which was recovered on the basis of disclosure statement made by theEaccused. The Investigating Officer also recorded the statements of otherwitnesses and during the course of investigation on the basis of thedisclosure statement, the Investigating Officer recorded the statementof PW-20, Dr. Davinder Kapil from whom the accused took the first aidin respect of the injury sustained by him on the ring finger of his leftFhand. On the basis of the disclosure statement made by the accused, thestatement of PW-9, a shopkeeper was recorded and according to him,the accused had purchased the knife (used in commission of the offence).That after the conclusion of investigation, the Investigating Officer filedthe charge sheet against the accused for the offence under Section 302IPC.G

2.4 As the case was exclusively triable by the Court of Sessions,the learned Magistrate committed the case to the Court of Sessions fortrial. Plea of the accused was recorded. He pleaded not guilty andtherefore he came to be tried by the Sessions Court for the offenceunder Section 302 IPC for having committed the murder of Kavita SahuHand Gaurang Sahu.

MALTI SAHU v. RAHUL & ANR.

[M. R. SHAH, J.]

2.5 To bring home the charge against the accused, the prosecutionexamined in all 21 witnesses as under:- 2.6 Through the aforesaid witnesses, the prosecution brought onrecord the relevant documentary evidences. After closure of theprosecution evidences, further statement of the accused under Section313 Cr.P.C. was recorded. The case of the accused was of a total denial.The accused did not lead any evidence in his defence.

2.7 On conclusion of the trial and on appreciation of evidences,the Trial Court held the accused guilty of the offence under Section 302IPC for having killed Kavita Sahu and Gaurang Sahu and sentenced himto undergo imprisonment for life, i.e., till the rest of his natural life andalso to pay a fine of Rs. 25,000/-. The learned Trial Court also orderedthat the substantive sentences shall run concurrently.

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A2.8 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the Trial Court convicting theaccused for the offence under Section 302 IPC, the accused preferredan appeal before the High Court and by the impugned judgment andorder, the High Court has acquitted the accused by observing that it is acase of circumstantial evidence and there is no direct evidence and thatBprosecution has not established the complete chain of circumstances toprove the guilt of the accused beyond reasonable doubt. While acquittingthe accused, the High Court also observed that the prosecution has failedto prove the link in the evidence, which could establish and bring homethe guilt of the accused.C

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2.9 Feeling aggrieved and dissatisfied with the impugned judgmentand order of acquittal passed by the High Court quashing and settingaside the order of conviction and sentence passed by the Trial Courtconvicting the accused for the offence under Section 302 IPC for havingkilled Kavita Sahu and Gaurang Sahu, the original complainant – motherDof the deceased (Kavita Sahu and Gaurang Sahu) and the State havepreferred the present appeals.

3. Shri Neeraj Kumar Jain, learned Senior Advocate appearingon behalf of the mother of the victim and Ms. Ruchi Kohli, learnedcounsel appearing on behalf of the State have vehemently submittedEthat in the facts and circumstances of the case, the High Court hascommitted a grave error in acquitting the accused by observing that theprosecution has failed to prove the necessary link in the evidence whichcould establish and bring home the guilt of the accused.

3.1 It is vehemently submitted on behalf of the appellant that inFthe present case the prosecution has been successful in proving themotive of the respondent to kill the deceased. That even from thedeposition of PW-8 (though he turned hostile), the prosecution has beenable to establish and prove that the accused was harassing the deceased(Kavita Sahu).

G3.2 It is further submitted by the learned counsel appearing onbehalf of the appellants that the High Court has not properly appreciatedand considered the fact that the knife used in the commission of theoffence, which was recovered from the place of occurrence waspurchased by the accused, which has been established and proved bythe prosecution by examining the relevant witness- shopkeeper – PW-9.H

It is submitted that the Shopkeeper (PW-9) has clearly stated in hisdeposition that the knife (three pieces of knife), which was recoveredfrom the place of occurrence having blood stain was the very knife,which was purchased by the accused and the shopkeeper also identifiedthe accused. It is further submitted by the learned counsel appearing onbehalf of the appellants that even the Loi, which was recovered at theinstance of the accused was having blood stains of the same blood groupof that of the accused and the accused has failed to explain the same. Itis further urged by the learned counsel appearing on behalf of theappellant that even the accused sustained an injury on ring finger of hisleft hand, which was detected immediately after the occurrence of theincident and the accused had failed to explain the same. It submittedthat the prosecution has been successful in proving the injury on theaccused by examining Dr. Davinder Kapil, PW -20. It is contended thattherefore, when the accused failed to explain the above incriminatingmaterial found against him namely, the Loi having blood stains, whichwas recovered at his instance and the knife having blood stains, recoveredand found from the place of occurrence, which was purchased by himprior to the commission of the offence and even from the statement/deposition of the hostile witness – PW -8, the motive has been establishedand proved and hence, the High Court has committed a grave/seriouserror in acquitting the accused.

3.3 Making above submissions and relying upon the depositionsof PW-8, PW-9 and PW-20 and the medical evidence, it is vehementlysubmitted by the learned counsel appearing on behalf of the appellantthat the prosecution has successfully proved the link evidence, whichestablishes and brings home the guilt of the accused.

4. Present appeals are vehemently opposed by Shri AdityaDhawan, learned counsel appearing on behalf of the respondent –accused. It is vehemently submitted by the learned counsel appearingon behalf of the respondent that in the present case, on appreciation ofthe entire evidence on record, the High Court has specifically recordedthe findings that the prosecution has failed to prove the link evidencewhich could establish and prove the guilt of the respondent - accused.

4.1 It is submitted that cogent reasons have been given by theHigh Court not to believe the circumstances, which were held againstthe accused by the Trial Court. It is contended that the present case isbased on circumstantial evidence and that PW-8 had turned hostile. It is A

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Afurther contended that it has not been established and proved that theLoi having blood stains belonged to the accused.

4.2 It is further urged that even the prosecution has failed to provethe motive by leading cogent evidence. It is submitted that so far as theinjury found on the ring finger of the accused is concerned, it was an oldBinjury. It is contended that therefore when the case is based on thecircumstantial evidence and there is no direct evidence to prove the guiltof the accused, no error has been committed by the High Court inacquitting the accused. That when by giving cogent reasons, the HighCourt has reversed the conviction and thereby has acquitted the accused,it is prayed not to interfere with the same in exercise of the powersCunder Article 136 of the Constitution of India.5. We have heard the learned counsel appearing on behalf of therespective parties at length.

6. We have perused, considered and gone through the judgmentand order passed by the Trial Court convicting the accused for the offenceDunder Section 302 IPC and the impugned judgment and order passed bythe High Court acquitting the accused.

7. In the present case, the prosecution has been successful inproving the motive so far as the accused is concerned. Though, PW-8initially made a statement before the Police that he had seen the accusedEalongwith the deceased going to their house, but before the Court, heturned hostile. However, he had been cross-examined by the PublicProsecutor and during the course of cross-examination, he has statedthat Kavita Sahu - deceased alias Kimi, a few days before the incidenthad disclosed to him that accused Rahul had made some obscene gesturesat her. He has further stated that Kavita alias Kimi used to often confideFwith him regarding her personal matters. He has also stated that he feltbad when Kimi disclosed to him about the activities of Rahul. He hasalso stated that Kimi disclosed to him about the behaviour of accusedRahul on 4[th] and 5[th] December, 2011.

As per the settled position of law, even the evidence of a hostileGwitness can be considered to the extent, it supports the case of theprosecution. Therefore, prosecution has established and proved the motiveto that extent.

7.1 Another link in the evidence, which establishes and bringshome the guilt of the accused person is the recovery of the knife in threeH

pieces, recovered from the place of occurrence, which was used forcommission of the offence. During the course of investigation and on athorough inspection of the spot, a knife in three pieces was found lyingon the floor in the room, where dead body of Kavita was lying. On theknife, the word “Glare” was engraved. The prosecution has beensuccessful in establishing and proving that it was the accused, whopurchased the said knife from one Ravi Mittal, PW-9. The witnessPW-9 had not only identified the knife purchased by the accused, but hehas also clearly stated that the knife (which was found in three pieces)is the same, which was purchased by the accused. He has also identifiedthe accused. As per the medical report and the post-mortem report, thecause of death was a result of hemorrhage and shock consequent uponslitting of the throat. Thirteen ante mortem injuries were found on theperson of Gaurang and eight injuries on the body of Kavita. It was opinedthat the same could have been caused by a sharp-edged weapon.PW-3, who was one of the members of the Board, which conducted thepost-mortem also stated in her evidence that the injuries could be possiblewith the weapon examined when taken as a whole. i.e., single weapon.She stated that even the throat injury was possible with three pieces andit was possible that the weapon might have broken during the process.

The knife in three broken pieces was recovered from the place ofoccurrence having blood stains and it has been established and provedthat during the use of the weapon, i.e., knife, in commission of the offence,the same might have broken.

7.2 The next link in the chain of evidence is the recovery of Loihaving blood stains of the deceased Kavita as well as of the accused,which Loi was recovered on the basis of the disclosure statement madeby the accused himself. Though, Panchas to the recovery panchnama/disclosure panchnama had turned hostile, still the prosecution has provedthe same through the I.O. However, unfortunately, the High Court hasdoubted the DNA/CFSL report on grounds, which are not germane,namely, the human hair in the hands of Kavita was not examined; bloodstains were not properly presented. However, the High Court has notgone in the detailed discussion of the CFSL Report on record.

Having gone through the CFSL Report as well as the depositionsof the witnesses from the CFSL, we are of the opinion that the blood onthe Loi was found to be matching with that of Kavita and the accused.

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A7.3 One another circumstance, which will go against the accusedwould be that an injury on the ring finger of the left hand of the accusedwas found, which was treated by PW-20, Dr. Davinder Kapil. He statedin his evidence that “accused came to his clinic in December, 2011 anddisclosed his name; he had injury over ring finger of his left hand andcame to him for first aid; the finger was already covered by accusedBwith handkerchief; on removing the same, he found an injury over ringfinger of his left hand; when he asked about the injury, he disclosed thathe suffered the aforesaid injury by some iron bar. He also stated that onseeing the injury, he found it could be happened due to a sharp-edgedweapon.” The accused has failed to explain the injury on him. On theCcontrary, he has come out with a false case that the injury was causedby some iron bar, which has not been established and proved.8. Considering the aforesaid overall facts of the case and evidenceon record, the High Court has committed a grave/serious error inobserving that the prosecution has failed to prove the link evidence, which Dcould establish and bring home the guilt of the accused. The findingsrecorded by the High Court are perverse. The High Court has not properlyappreciated the entire evidence on record, more particularly, the findingsrecorded by the Trial Court, which as such were on appreciation of theentire evidence on record.

8.1 Under the circumstances, the impugned judgment and orderEpassed by the High Court reversing the conviction and consequentlyacquitting the accused is unsustainable and the same deserves to bequashed and set aside.

9. In view of the above and for the reasons stated above, presentappeals succeed. The impugned judgment and order passed by the HighFCourt acquitting the accused is hereby quashed and set aside. Thejudgment and order of conviction and sentence imposed by the TrialCourt convicting the accused for the offence under Section 302 IPC ishereby restored.

Now, the respondent - accused to surrender before the concerned GJail Authority/concerned Court to undergo the sentence imposed by theTrial Court.

Present appeals are allowed accordingly.

Pending application, if any, also stands disposed of.

HNidhi Jain