SURENDRA SINGH & ANR. versus STATE OF UTTARAKHAND on 4 December 2018

1056 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 1056

ASURENDRA SINGH & ANR.

v.

STATE OF UTTARAKHAND

(Criminal Appeal No. 1768 of 2010)

BDECEMBER 04, 2018

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Penal Code, 1860:

ss.457, 380 and 302/34 – Prosecution under – Of threeCaccused – Circumstantial evidence – Conviction of all the threeaccused by courts below – Appeal against A-1 abated due to deathof A-1 during pendency of appeal to Supreme Court – Held: All thecircumstances viz. motive, accused last seen, recovery of stolenarticles at the instance of accused and identification of the articles,discovery of weapon of offence at the instance of accused; recoveryDof blood-stained clothes of the accused and discovery of lock andkey of the shop of the deceased at the instance of A-1, were provedby the prosecution with the aid of oral evidence beyond allreasonable doubt – It is established by the prosecution that noneelse other than the appellants were the persons involved in the crime.

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Constitution of India:

Art.136 – Jurisdiction under – Scope of – Held: When twocourts below have appreciated the entire ocular evidence, theSupreme Court would be very slow in exercise of its appellatejurisdiction u/Art. 136 to appreciate the evidence afresh, unless theFconcurrent findings are wholly perverse or recorded without anyevidence or recorded by misreading or ignoring the materialevidence.

Dismissing the appeal, the Court

HELD : 1. When the two Courts below in their respectivejurisdiction have appreciated the entire ocular evidence, thenthis Court would be very slow in exercise of its appellatejurisdiction under Article 136 of the Constitution to appreciatethe evidence afresh unless the appellants are able to point outthat the concurrent findings of the two Courts below are wholly G

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perverse or are recorded without any evidence or are recordedby misreading or ignoring the material evidence. [Para 30][1064-C-E]

Lachman Singh v. State AIR 1952 SC 167 : [1952] SCR 839 – referred to.

2.1 The motive was held proved by the two Courts belowwith the aid of ocular evidence of PWs 3, 4, 10 and 11 by theprosecution. There is no reason to disbelieve the evidence ofthese four prosecution witnesses on this issue. Firstly, noevidence was adduced by the defense; Secondly, no explanationwas given by the accused under Section 313 Cr.P.C. proceedings;Thirdly, all the four witnesses knew each other including theaccused persons and ‘R’ because all were the residents of onevillage and of nearby area. [Paras 34 and 35][1065-A-D]

2.2 The second circumstance is of “appellants last seen”.This was held proved by the two Courts below with the aid ofocular evidence of PWs 3, 11 and 13. There is again no reason todisbelieve the evidence of these three witnesses on this issue.First, no evidence was adduced by the defense; Second, noexplanation was given by the accused under Section 313 Cr.P.C.proceedings and lastly, this was one of the relevant circumstancesto prove the chain of events which led to commission of the crime.[Paras 37 and 38][1065-E, F-G]

2.3 The third circumstance is of “recovery of stolen articlesat the instance of accused persons”. This was held proved withthe aid of evidence of PWs 3, 8, and 14. This was also one of therelevant circumstances to prove the chain of events, which ledto commission of crime. The reason was that the deceased wassleeping in his shop where he was found dead and several articleskept in his shop for sale which were found missing were laterrecovered at the instance of the accused persons. Neither anyevidence nor any explanation was given by the accused onthis issue. Therefore, there is no reason to find fault inthis circumstance for reversing the finding on this issue.[Paras 39, 40 and 41][1065-D-G]

2.4 The fourth circumstance is of “identification of stolenarticles”. This was held proved with the aid of evidence of PWs A

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A3 and 8. It was proved that the items recovered at the instance ofthe appellants were got tallied with the stolen items with the aidof these two witnesses. As there was neither any defenseevidence and nor any explanation given by the appellants underSection 313 Cr.P.C. proceedings, the two Courts below werejustified in holding the fourth circumstance as proved. It wasBundoubtedly one of the relevant circumstances to prove the chainof the event in proving the commission of crime by the appellants.[Paras 42 and 43][1066-B-D]

2.5 The fifth circumstance is of discovery of weapon of crimeat the instance of A-3. This was held proved with the aid ofCevidence of PW-10. It was one of the important circumstances toprove the chain of events in commission of offence. Ext. Ka-20is the weapon “wheel-pana” that was used for assaulting deceasedon his head. The doctor, who performed the post mortem, alsoconfirmed that the injuries sustained by the deceased on his headDcould be caused with the use of wheel-pana. There is no reasonto disbelieve this evidence and nor there is any material to discardthis evidence. [Paras 44, 45 and 46][1066-D-G]

2.6 The sixth circumstance is of “recovery of clothescontaining human blood”. The clothes were recovered at theEinstance of the appellants and it was held duly proved in evidence.This equally is one of the relevant circumstances in proving thechain of events, which led to commission of the crime and thereis no ground to hold this fact as not proved for want of anychallenge at the instance of appellants. [Paras 47 and 48][1066-F-H]F

2.7 The seventh circumstance is of “discovery of lock andkey of shop of the deceased”. This was recovered at the instanceof A-1 and was held proved with the aid of evidence of PWs-12 &14. [Para 49][1067-A]G2.8 Thus, all the circumstances were proved by theprosecution with the aid of oral evidence beyond all reasonabledoubt, which led to commission of the crime. All thecircumstances, point the finger of guilt towards the appellantsand their complicity in commission of the crime. It is establishedby the prosecution that none else other than the appellants whoHwere the persons involved in the commission of offence in question and that they conspired to eliminate the deceased.There is no perversity or arbitrariness or illegality in thereasoning and conclusion arrived at by the two Courts below,when it was held that it is the appellants who committed the crimein question. [Paras 50 and 51][1067-A-D]

Case Law Reference

[1952] SCR 839referred toPara 31

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1768 of 2010.

From the Judgment and Order dated 30.12.2009 of the HighCourt of Uttarakhand at Nainital in CRL.A. No. 1644 of 2001 (OldNo. 2113/1996)

C. N. Sree Kumar, Amit Sharma, P. R. Nayak, Advs. for theAppellants.

Jatinder Kumar Bhatia, Tanmay Agarwal Advs. for theRespondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.

1. This appeal is directed against the final judgment and orderdated 30.12.2009 passed by the High Court of Uttarakhand at Nainitalin Criminal Appeal No.1644 of 2001 (Old No.2113/1996) whereby theHigh Court dismissed the appeal filed by the accused-appellants hereinand 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 isnecessary to state the relevant facts hereinbelow.

3. Three persons, namely, Rameshwar Singh (A-1), Surendra Singh(A-2) and Ram Singh (A-3) were prosecuted for commission of offenceof murder of one Rajendra Prasad. The Sessions Judge held all thethree accused persons guilty for having committed murder of RajendraPrasad and accordingly convicted all the three accused under Sections457, 380 and 302/34 of the Indian Penal Code, 1860 (hereinafter referredto as “IPC”). They were accordingly sentenced to undergo rigorousimprisonment for two years and a fine of Rs.1500/- and in default of A

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Apayment of fine to further undergo rigorous imprisonment for six monthsunder Section 457 IPC, rigorous imprisonment for two years and a fineof Rs.1500/- and in default of payment of fine to further undergo rigorousimprisonment for six months under Section 380 IPC and life imprisonmentunder Section 302/34 IPC. However, all the sentences were to runconcurrently.B

4. All the three accused felt aggrieved and filed criminal appeal inthe High Court of Uttarakhand. By impugned judgment/order, the HighCourt dismissed the appeal and confirmed the conviction and the sentenceawarded by the Sessions Judge to all the three accused.

C5. All the three accused, therefore, felt aggrieved by dismissal oftheir appeal and filed appeal by way of special leave in this Court. Duringthe pendency of appeal, Rameshwar Singh(A-1) expired and, therefore,the appeal against him stood abated. The appeal is now survived for itsconsideration on merits at the instance of remaining two accused persons,namely, Surendra Singh (A-2) and Ram Singh (A-3).D

6. The question, which arises for consideration in this appeal, iswhether the two Courts below were justified in convicting the appellants,i.e., Surendra Singh (A- 2) and Ram Singh (A-3) for the offences inquestion or in other words, whether the prosecution was able to proveits case beyond all reasonable doubt against the present two appellantsEas was held by the two Courts below against them.

7. In order to examine the issues, it is necessary to set out thecase of the prosecution in brief.

8. Rajendra Kumar (deceased) was the resident of village Amni,PS Deoprayag, District Tehri Garhwal. The deceased was running aFshop in village for his livelihood. Rameshwar Singh (A-1) used to visitthe village Amni to meet one person, namely, Rakshanand, who wasinvolved in some unlawful trading business. Having noticed this, RajendraKumar had objected Rameshwar Singh’s (A-1) visits to Rakshanand’splace. Due to this, Rameshwar Singh had developed grudge againstGRajendra Kumar and in retaliation he had threatened him with direconsequence in presence of three persons, namely, Km. Asura(PW-3),Smt. Surati(PW-4) and Dhirendra Prasad(PW-11).

9. On 21.01.1990, Rajendra Kumar after taking dinner in his housein the night went to his shop to sleep there overnight. It is the case of theHprosecution that three persons named above saw Rameshwar Singh (A-1) with two more persons coming in one Maruti Van (UMT- 8062) inthat area from Deoprayag side prior to commission of the offence.

10. In the midnight, the shop was found unlocked and a cash ofRs.2000/- and some cloth items (two bundles of terry-cot, 4 Chaddars,one pant piece, one shirt, one trouser and torch) were found missingfrom the shop. Rajendra Prasad was found violently assaulted on hishead causing him instant death. His dead body was seen lying at a distanceof around 300 meters from water source of the village Amni next daymorning, i.e., on 22.01.1990 by Surendra Bhatt-Pradhan of Gaon Sabha,Amni.

11. He, therefore, lodged FIR (Ext. ka-1) around 9.35. a.m. atPolice Station, Deoprayag, which was around 12 KM away from theplace of occurrence. The FIR contained a narration that when SurendraBhatt was going to Bus Station from his house, he noticed blood stainson the road and saw the dead body of a person lying downside of theroad whose face was hidden in bushes.

12. Thereafter, Surendra Bhatt went near to water source andinformed Sita Ram, who was taking water from there, about the incident.Surendra Bhatt’s child was also accompanying him. He also rushed tonearby area and called some persons. This is how 4-5 persons wereassembled there on being informed of the incident. All persons thenvisited the place where the dead body was lying. It was recognized tobe that of Rajendra Prasad.

13. On the basis of FIR, Head Moharir Jagdish Prasad registereda report (Ext. Ka-8) and then also registered the case (Ext. Ka-9). Thecase 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 thedead body (Ext. Ka-3). He also prepared the samples of seal (Ext. Ka-10), photo lash (Ext. Ka-11), letter sent to CMO (Ext. Ka-12), challan(Ext. Ka-13), and site plan (Ext. Ka-14). He also recorded the statementof Surendra Bhatt. The dead body was then removed from the placeand sent for post mortem. Km. Asura, the daughter of deceased gave toIO the list of stolen articles. The IO then visited the shop of the deceasedand prepared the site plan (Ext. Ka-15). He also took samples of bloodstains and earth in two containers. (Exts. Ka-14 and 15) and also collectedBiri (Ext. Ka-16), one match box (Ext. Ka-17), one cap (Ext. Ka-18),one pair of chappal (Ext.Ka-19) from the spot and took them into policecustody after preparing memo (Ext. Ka-16).

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A14. Dr. N.K.Saxena conducted the post mortem and found 9injuries on the dead body, namely, (1) Lacerated wound 5cm x ½ cmbone deep on front of forehead, 4 cm above eye-brow, (2) Laceratedwound 3 cm x ½ cm x muscle deep, on right side lower jaw, ½ cm belowlower lip, (3) Incised wound ½ x ½ cm on right side face, 2 cm lateral toinjury no.2, (4) Incised wound ½ x ½ muscle deep on front of rightBfragus, (5) Incised wound ½ x ½ cm muscle deep on right side face, 3cms below injury no.4, (6) Fracture of frontal bone, (7) Lacerated wound3 cm x ½ cm x bone deep, on right parietal bone, (8) Lacerated wound10 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 toCbone- matter. All were ante mortem. On internal examination, he foundthe fracture of parietal and frontal bones of skull. He opined that causeof death was shock and hemorrhage due to ante mortem injuries. Healso opined that the deceased died in the intervening night of 21-22[nd]around 8-9 p.m. The post mortem report is (Ext. Ka-5).

D15. The IO then recorded the statements of Km. Asura, DhirendraPrasad, Madho Singh and Sada Singh. This led to arrest of the accusedpersons on 11.02.1990.

16. On being interrogated at the instance of Rameshwar Singh(A-1), one bushshirt, pant, one pant piece of terry-cot, which was stolenEfrom the shop were recovered. In addition, one blood stained jerseyfrom Khoka situated at Mussorrie taxi stand, Dehradun was alsorecovered. At the instance of Surendra Singh (A-2), one blood stainedshirt and pant, stolen shirt, pants and 2 chaddars from his house atBharuwala, Dehradun were recovered. Likewise, at the instance of RamSingh(A-3), one stolen pant, one shirt, two chaddars and one torch fromFhis house were recovered. In addition, Maruti Van (UMT-8062), wheel-pana (Ext. Ka-20) which was used in commission of the offence, werealso recovered from the house of one Anup Kumar at Dehradun.

17. The IO accordingly prepared site plan of the houses of A-1,A-2 and A-3 and Anup Kumar (Exts. Ka-21 to Ka-24). The IO alsoGdiscovered the lock and key of the shop of the deceased at the instanceof A-1 near the road situated in village Gyuli. Accordingly, recoverymemo (Ext.Ka-5 and site plan (Ext.Ka-25) was drawn up.

18. The IO then got the identification of the stolen articles fromthe two daughters of the deceased-Km. Asura and Guddi, who dulyHidentified the items to be the ones stolen from the shop of the deceased.Accordingly, identification memo (Ext.Ka-7) was prepared.

SURENDRA SINGH & ANR. v. STATE OF UTTARAKHAND[ABHAY MANOHAR SAPRE, J.]

19. On completion of the investigation, charge-sheet was filedand the case was committed to the Court of Sessions for trial. Theprosecution examined as many as 14 witnesses. All the three accuseddenied the prosecution case in their statement under Section 313 of theCode of Criminal Procedure, 1973 (hereinafter referred to as “theCr.P.C.”). The Sessions Judge, as mentioned above, found all the threeaccused guilty and accordingly convicted them under Sections 457, 380and 302/34 IPC and sentenced each of them mentioned above. In appealfiled by the accused, the High Court confirmed the order of convictionand sentence and dismissed their appeal, which gives rise to filing of thepresent appeal by way of special leave in this Court by the accusedpersons.

20. Heard Mr. C.N. Sree Kumar, learned counsel for the appellantsand Mr. Jatinder Kumar Bhatia, learned counsel for the respondent.

21. Learned counsel for the appellants(accused persons) mainlyurged five points.

22. In the first place, the learned counsel submitted that the entirecase is based on circumstantial evidence and, according to him, theprosecution has failed to adduce sufficient evidence to prove the casebeyond all reasonable doubt.

23. It was his submission that as a matter of fact this is a case ofno evidence against the appellants and, therefore, the conviction of theappellants by the two Courts below is wholly unsustainable in law.

24. In the second place, learned counsel submitted that theprosecution has failed to prove the chain of events, which was the basicrequirement in cases of circumstantial evidence to connect the accusedwith the commission of offence and, therefore, the conviction is legallyunsustainable.

25. In the third place, learned counsel submitted that whateverevidence the prosecution has adduced to prove the chain of events toconnect the accused with the commission of the offence, the same isnot sufficient to prove the complicity of the appellants in commission ofthe crime. In any event, according to learned counsel, the evidenceadduced is not reliable for sustaining the appellants’ conviction.

26. In the fourth place, learned counsel submitted that no motivecould be proved against the appellants for commission of the crime inquestion and, therefore, the conviction is legally unsustainable.

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27. And lastly, the learned counsel took us through the evidenceand the findings of the two Courts below while elaborating his submissionsand contended that the concurrent findings of the two Courts below arewholly “perverse” inasmuch as they are based on the evidence which isnot reliable for want of its quality or/and sufficiency.

B28. In reply, learned counsel for the respondent (State) supportedthe conviction of the appellants and prayed that impugned judgment doesnot call for any interference and the appeal is liable to be dismissed.

29. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no force in any of the submissionsCurged by the learned counsel for the appellants (accused).

30. At the outset, we consider it apposite to state that when thetwo Courts below in their respective jurisdiction has appreciated theentire ocular evidence, then this Court would be very slow in exercise ofits appellate jurisdiction under Article 136 of the Constitution to appreciateDthe evidence afresh unless the appellants are able to point out that theconcurrent findings of the two Courts below are wholly perverse or arerecorded without any evidence or are recorded by misreading or ignoringthe material evidence.

31. We consider it apposite to recall the apt words of JusticeEFazal Ali, a learned Judge, while speaking for the Bench in the case ofLachman Singhvs. State(AIR 1952 SC 167 at page 169) when HisLordship observed “It is sufficient to say that it is not the function ofthis Court to reassess the evidence and an argument on a point offact which did not prevail with the Courts below cannot avail theappellants in this Court.”F32. Yet, we have gone through the evidence and examined thefindings of the two Courts below with a view to find out as to whetherthey are sustainable in law.

33. It is not in dispute that the entire case is based on circumstantialevidence and that there is no eyewitness to the incident. It is, therefore,Gnecessary to see those circumstances which found proved by the twoCourts below on the basis of evidence adduced by the prosecution forholding the appellants guilty for commission of the crime in questionresulting in their conviction.

SURENDRA SINGH & ANR. v. STATE OF UTTARAKHAND[ABHAY MANOHAR SAPRE, J.]

34. First- the motive. This was held proved by the two Courtsbelow with the aid of ocular evidence of PWs 3, 4, 10 and 11 by theprosecution. These witnesses stated that Rameshwar Singh(A-1) had agrudge against the deceased because much prior to the date of incident,it was seen and heard by them that the deceased used to objectRameshwar Singh (A-1) for his having close association with oneRakshanand, who was involved in carrying illegal business in the village.These witnesses stated that due to the deceased objecting to RameshwarSingh, he had threatened the deceased to kill him one day.

35. In our view, there is no reason to disbelieve the evidence ofthese four prosecution witnesses on this issue. Firstly, no evidence wasadduced by the defense; Secondly, no explanation was given by theaccused under Section 313 Cr.P.C. proceedings; Thirdly, all the fourwitnesses knew each other including the accused persons andRakshanand because all were the residents of one village and of nearbyarea.

36. We, therefore, find no good reason to discard their evidencewhich, in our opinion, was rightly believed by the two Courts below forrecording the finding of fact on the question of motive against theappellants.

37. The second circumstance is of “appellants last seen”. Thiswas held proved by the two Courts below with the aid of ocular evidenceof PWs 3, 11 and 13. It was proved that Ram Singh (A-3) was thedriver of Maruti Van which was owned by Anup. This Maruti Van wasseen moving prior to commission of the offence in the area in questioncarrying the appellants. This Van was recovered at the instance of RamSingh.

38. In our view, there is again no reason to disbelieve the evidenceof these three witnesses on this issue. First, no evidence was adducedby the defense; Second, no explanation was given by the accused underSection 313 Cr.P.C. proceedings and lastly, this was one of the relevantcircumstances to prove the chain of events which led to commission ofthe crime.

39. The third circumstance is of “recovery of stolen articles at theinstance of accused persons”. This was held proved with the aid ofevidence of PWs 3, 8, and 14.

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40. This was also one of the relevant circumstances to prove thechain of event, which led to commission of crime. The reason was thatthe deceased was sleeping in his shop where he was found dead andseveral articles kept in his shop for sale which were found missing werelater recovered at the instance of the accused persons.

B41. Neither any evidence nor any explanation was given by theaccused on this issue. We, therefore, find no reason to find fault in thiscircumstance 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 wasCproved that the items recovered at the instance of the appellants weregot tallied with the stolen items with the aid of these two witnesses.

43. As there was neither any defense evidence and nor anyexplanation given by the appellants under Section 313 Cr.P.C. proceedings,the two Courts below were justified in holding the fourth circumstanceDas proved. It was undoubtedly one of the relevant circumstances toprove the chain of the event in proving the commission of crime by theappellants.

44. The fifth circumstance is of discovery of weapon of crime atthe instance of Ram Singh (A-3). This was held proved with the aid ofEevidence of PW-10. It was one of the important circumstances to provethe chain of event in commission of offence.

45. Ext. Ka-20 is the weapon “wheel-pana” that was used forassaulting deceased on his head. The doctor, who performed the postmortem, also confirmed that the injuries sustained by the deceased onhis head could be caused with the use of wheel-pana.F

46. We find no reason to disbelieve this evidence and nor there isany material to discard this evidence at the instance of the appellants.

47. The sixth circumstance is of “recovery of clothes containinghuman blood”. The clothes were recovered at the instance of theGappellants and it was held duly proved in evidence.

48. This equally is one of the relevant circumstances in provingthe chain of event, which led to commission of the crime and we find noground to hold this fact as not proved for want of any challenge at theinstance of appellants.

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49. The seventh circumstance is of “discovery of lock and key ofshop of the deceased”. This was recovered at the instance of A-1 andwas held proved with the aid of evidence of PWs-12 & 14.

50. In our considered opinion, the aforementioned are thecircumstances, which were proved by the prosecution with the aid oforal evidence beyond all reasonable doubt, which led to commission ofthe crime. All the circumstances, in our view, point the finger of guilttowards the appellants and their complicity in commission of the crime.It is established by the prosecution that none else other than the appellantswho were the persons involved in the commission of offence in questionand that they conspired to eliminate the deceased. It is proved that withsuch idea in mind they entered in the shop on the intervening night of 21-22[nd] and brutally assaulted the deceased with the aid of wheel-pana onhis head, looted his shop and took away the stolen articles with them andthrew away the body of the deceased near the downside of the roadoutside the shop at a distance.

51. We are unable to notice any kind of perversity or arbitrarinessor illegality in the reasoning and conclusion arrived at by the two Courtsbelow when it was held that it is the appellants who committed the crimein question.

52. In view of the foregoing discussion, we find no merit in theappeal. It thus fails and is accordingly dismissed.

Kalpana K. Tripathy

Appeal dismissed.

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