RAHUL versus STATE OF HARYANA on 3 March 2021

[2021] 2 S.C.R. 499

RAHUL

v.

STATE OF HARYANA

(CRIMINAL APPEAL No.262 of 2021)

MARCH 03, 2021

[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]

Indian Penal Code, 1860 – s.302 r/w. s.34 – Arms Act, 1959– s.25(1B)(a) – Prosecution case was that the appellant-accusedsuspected that his wife was in illicit relation with the victim-deceased– The appellant informed his father-in-law and his brother-in-lawabout the same and all three of them decided to eliminate the victim-deceased – All three of them had taken victim-deceased to a hilland fired on him and thereafter thrown him in a pit – A telephonicmessage regarding the body was received in Police station – Afterreceiving the said information, the police officials reached the spot– The inspecting officers found marks of dragging of the deceasedon the kacha road which was going towards the hill and on checkingof the dead body, they also found two fire-arm shots on both sidesof waist along with other injuries – FIR was registered u/s. 302 r/w.s.34 IPC and s.25 of the Arms Act – News item along with aphotograph of the deceased was published for identification of thebody – The body was identified by PW-12-mother of deceased andPW-3-brother of deceased – After recording their statements andcollecting necessary evidence, the appellant and his father-in-lawwere arrested – The other accused brother-in-law of appellantabsconded – Both PW-3 and PW-12 stated that victim was taken bythe appellant and his brother-in-law from a bus stop – Further, onbasis of the disclosure statement of the appellant, a country madepistol and two live cartridges were recovered from the house of hisbua-DW-1 – The Trial Court found both appellant and his father-in-law guilty for offence u/s. 302 r/w. s.34 and appellant also guiltyu/s.25 of the Arms Act – The High Court confirmed the convictionof appellant and acquitted his father-in-law – Aggrieved, theappellant filed an appeal before the Supreme Court – Held: Thereis no reason to disbelief the recovery of weapon from the residenceof DW-1 – Further, as per the FSL report, the country made pistol.315 bore used by the appellant was found in working order and

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Aboth the fired cartridges recovered from the spot and fired bullettaken out from the body of the deceased were found fired from thecountry made pistol recovered at the instance of appellant-accused– PW-5-doctor had deposed that the cause of death was because offire-arm injuries and he had clearly stated that the fired bullet whichwas marked as Ex.P1 was same which was taken out from the bodyBof the deceased – As far as testimony of PW-3 and PW-12 isconcerned, merely because they are related, by itself is no ground,to reject their testimony – A close relative who is natural witnesscannot be regarded as an interested witness – It is fairly well settledproposition that even the evidence of interested person can also beCconsidered provided such evidence is corroborated by otherevidence on record – There is a complete chain of evidence whichwould lead to irresistable conclusion that the appellant-accusedhas committed the offence.

Dismissing the appeal, the CourtD

Conclusion

Dismissing the appeal, the CourtD

HELD: 1. Although it is the contention of the appellant thatas PW-3 and PW-12 are family members/close relations of thedeceased, as such, their testimony is to be discarded, but thesame cannot be accepted. Merely because PW-3 and PW-12 arerelated, by itself is no ground, to reject their testimony. Further,Ea close relative who is a natural witness cannot be regarded as aninterested witness. It is fairly well settled proposition that eventhe evidence of interested person can also be consideredprovided such evidence is corroborated by other evidence onrecord. [Para 17][515-C-E]F2. It is clear from the deposition of PW-5 (doctor) and thepost mortem report that, injuries were caused over the body ofthe deceased with a fire-arm and the bullet was found embeddedin the body. It is also clearly stated that death was due to fire-arminjuries and was ante mortem in nature. He has clearly statedthat the fired bullet which was marked as Ex.P1 was the sameGwhich was taken out from the body of the deceased. [Para 18][516-E-F]

3. If the oral evidence on record coupled with thedocumentary evidence is closely scrutinized, this Court is of theconsidered view that there is a complete chain of evidence whichH

would lead to irresistible conclusion that the appellant-accusedhas committed the offence and none else. Even the recoveriesare sufficiently proved with the cogent evidence. In the disclosurestatement the appellant-accused has stated that he has kept theweapon with his Bua. Though she was examined on behalf of theaccused to disprove the recovery, at the same time, she hasadmitted in the cross-examination that police have visited herplace a year and a half earlier to her statement. If this part ofevidence is examined, coupled with the other documentaryevidence on seizure, there is no reason to disbelieve the recoveryof weapon, from the residence of appellant’s Bua. All therecoveries have been proved by examining witnesses for suchrecoveries. Only in view of the disclosure statement Ex.PXrecoveries of pistol .315 bore and cartridges were made fromthe house of his Bua recovery memo Ex.PY on 24.08.2010.Further, as per the FSL report Ex.PXX, the country made pistol.315 bore used by the accused-appellant for committing themurder of the deceased was found in working order and both thefired cartridges recovered from the spot and fired bullet takenout from the body of the deceased, are found fired from the countrymade pistol recovered at the instance of appellant-accused.Further, the injuries on the person of deceased have been provedby doctor who was examined as PW-5. The material evidence onrecord produced by the prosecution has been further corroboratedby call details of mobile phones of father-in-law of appellant,brother-in-law of appellant and victim and such call details havebeen proved by the statement of PW-14. Further, it is also wellsettled that if other evidence on record clearly establishes thatthe deceased was murdered by the appellant by using fire-arm,the factum of motive loses its importance, more so, in this casethe motive has been established by leading cogent evidence toshow that only because the deceased had developed relationshipwith appellant’s wife, has decided to eliminate the deceased. [Para19][516-F-H; 517-A-E]

4. From the evidence on record, this Court is of theconsidered view that prosecution has proved the guilt of theaccused beyond reasonable doubt by leading cogent evidence.Further, the motive is also proved by the prosecution. [Para20][517-E-F]

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A5. In the case of Sanjay Thakran relied on by the theappellant, this Court has held that certain tests are to be fulfilledby the prosecution by leading cogent evidence, when the caserests upon circumstantial evidence. Further, in the case of Wakkarthis Court has held that mere recovery itself cannot be the basisfor conviction and recovery of incriminating articles and itsBevidentiary value has to be considered in the light of otherrelevant circumstances. However, having regard to evidence onrecord in this case on hand, this Court is clearly of the view thatthe prosecution has satisfied all the tests mentioned in the caseof Sanjay Thakran to bring home the guilt of the accused, byCresting upon the circumstantial evidence. If the factum ofrecoveries is considered along with other evidence in entirety, itgives an irresistible conclusion that the appellant alone hascommitted offence by using the weapon,which is recovered fromthe house of DW-1 who is the Bua of the appellant. Further, it isalso to be noted that whether the guilt of the accused is provedDor not based on the circumstantial evidence, each case has to bejudged on the overall assessment of the evidence on record, assuch this Court is of the view that the case law which is referredabove, relied on by the the appellant, would not render anyassistance to accept his plea that the appellant was falselyEimplicated. [Para 21][517-F-H; 518-A-C]

6. The High Court, in the appeal filed by the appellant hereinand his father-in-law, reappreciated the evidence on record andconfirmed the conviction and sentence, so far as the appellant isconcerned and acquitted the other appellant, i.e.,his father-in-Flaw. Though it is contended by the appellant, on same set ofevidence while acquitting the other accused there is no reasonto confirm the conviction and sentence so far as the appellantherein is concerned. In the impugned judgment, the High Courthas recorded reasons for acquittal of the other appellant,i.e.,father-in-law of appellant. PW-3, in his deposition has clearlyGstated that when he along with his mother and deceased, went toBadhra, after some time deceased was separated from them, andcame back along with appellant and brother-in-law of appellant(proclaimed offender) in a Maruti car. It is stated by PW-3, at that time deceased stated that he was going to Haridwar and wouldcome back in 3-4 days. Thereafter, victim-deceased went alongwith appellant and brother-in-law of appellant. To the same effectis the statement of PW-12, mother of the deceased. From thesaid evidence on record, it stands established that the deceasedwas last seen in the company of appellant and appellant’s brother-in-law (proclaimed offender) only. There was no mention thatfather-in-law of the appellant-accused (appellant before the HighCourt) also accompanied deceased for going to Haridwar. In theabsence of any evidence on record to show that deceased wasalso seen with appellant’s father-in-law lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecutionhas not proved its case beyond reasonable doubt so far as theother appellant-father-in-law is concerned. In view of suchreasoning recorded by the High Court and evidence on recordthere are justifiable reasons for acquitting the other appellant,father-in-law of appellant, while confirming the conviction so faras the appellant herein is concerned. [Para 22][518-C-H]

Kanhaiya Lal & Ors. etc. v. State of Rajasthan (2013)5 SCC 655 : [2013] 6 SCR 361; Ram Chander & Ors.v. State of Haryana (2017) 2 SCC 321 : [2017] 1 SCR10 – relied on.

State of Goa etc. v. Sanjay Thakran & Anr. Etc. (2007)3 SCC 755 : [2007] 3 SCR 507; Kanhaiya Lal v. Stateof Rajasthan (2014) 4 SCC 715 : [2014] 3 SCR 744;Wakkar & Anr. v. State of Uttar Pradesh (2011) 3 SCC306 – referred to.

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.262 of 2021

From the Judgment and Order dated 06.12.2016 of the High Courtof Punjab and Haryana at Chandigarh in Crl. A. No. D-1060-DB/2012.

Tathagat Harsh Vardhan, Aditya Singh, Vikas Verma, Advs. forBthe appellant.

Dinesh Chander Yadav, AAG, Amit Gupta, Sanjay Kumar Visen,Advs. for the respondent.

The Judgment of the Court was delivered by CR. SUBHASH REDDY, J.

1. Leave granted.

2. This appeal has been preferred, aggrieved by the judgment andorder dated 06[th] December 2016 passed by the High Court of Punjab &Haryana at Chandigarh, confirming the conviction recorded and sentenceDimposed, for the offence punishable under Section 302 read with Section34 of Indian Penal Code (IPC) and under Section 25(1B)(a) of the ArmsAct, 1959, by the learned Sessions Judge, Bhiwani.

3. On 07.08.2010 a telephonic message was received in PoliceStation, Charkhi Dadri from one Jaswant Singh, resident of VillageEKaliyana, to the effect that in the pit of panchayat land adjoining Kaliyana-Jhojhu road towards hill, dead body of a young boy was lying. Afterreceiving the said information, the Inspector of Police/SHO of the PoliceStation along with other police officials reached the spot for investigation.After reaching the place of occurrence, they found a dead body of anFunknown person with fire arm injury marks. At the place of occurrence,two empties of brass having marka of 8 MM PF on their bottom wererecovered along with a pair of chappals. Blood-stained earth wascollected from the spot and converted into sealed parcels. Thecomplainant Jaswant Singh who was examined, during the trial, as PW-6 was present and his statement was recorded. The inspecting officersGhave found marks of dragging of the deceased on the kacha road whichwas going towards hill; there were also marks of tyres of a small vehicle.On checking of the dead body by the police, they have noticed two fire-arm shots on both sides of waist and there was a deep wound on theback of right ear and left jaw of the mouth was cut. The dead body wasHsmeared with blood and they suspected, some unknown persons have brought the deceased in a vehicle and committed murder by causing firearm injuries. On the complaint of Jaswant Singh (PW-6) a crime wasregistered in FIR No.297 on 07.08.2010 for the offence punishable underSection 302 read with Section 34, IPC and Section 25 of the Arms Act.

4. After registering the crime, investigation was taken up. Thepost mortem of the dead body was conducted in PGIMS Rohtak. Foridentification of dead body, news item was got published in the newspaperalong with the photograph of the deceased. During the investigation ofthe case, on 14.08.2010, the mother of the deceased Kasturi Devi (PW-12) and the brother of the deceased, by name, Anil Kumar (PW-3)approached the police on the basis of news publication and identified thedeceased as Jitender, who was son of PW-12 and brother of PW-3 andresident of Kanhra. After recording the statements of the aforesaidwitnesses, investigation was proceeded on the basis of call details of thedeceased and statements of the mother and brother of the deceased.After collecting necessary evidence, the appellant herein, i.e., Rahul, aresident of Mirpur was arrested on 21.08.2010. It is stated that duringthe interrogation, the accused Rahul made disclosure statement that aboutsix months earlier he was married with Priyanka, daughter of Ramesh,caste Jat, resident of village Chandwas. He had suspicion on the characterof his wife and he is stated to have informed his father-in-law RameshKumar and brother-in-law Ashok Kumar, that Priyanka has illicit relationwith Jitender (deceased), resident of village Kanhra. Therefore, theyhave decided to eliminate Jitender. As per the case of the prosecution,on 06.08.2010 at about 06:00 p.m. as per their plan, appellant (Rahul)called Jitender, his father-in-law Ramesh and brother-in-law Ashok toBadhra. He was having a Maruti car bearing registration no.DL-9CJ-5165 and thereafter in Badhra, Jitender had two bottles of beer and hecame under influence of liquor. Further, the case of the prosecution isthat all of them have taken the deceased from Jhojhu to Kaliyana hillwhere Jitender also got down from the car and they have fired on thedeceased and thrown him in the pit. The Maruti car bearing registrationno.DL-9CJ-5165 and the mobile phone of the accused Rahul were takeninto possession vide recovery memo. Further it is stated that on23.08.2010, the appellant-accused pointed the place of occurrence andon 24.08.2010, in pursuance of his disclosure statement, a country madepistol .315 bore and two live cartridges were seized from the house ofhis Bua, resident of Old Housing Board Colony, Bhiwani. It is allegedthat during the investigation the other accused, namely, Ramesh also ABC

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Asuffered disclosure statement and disclosed that the SIM of phone whichhe was using, was in the name of his brother-in-law, and he was talkingto his son-in-law (Rahul) by using the said SIM. As the other accusedAshok Kumar was absconding, non-bailable warrants were pendingexecution and proceedings under Sections 82 and 83 of Cr.PC werealso issued.B

5. After completion of the investigation, final report under Section173 of Cr.PC was filed against the appellant herein and Ramesh fortheir trial and the case was committed to the Court of Sessions. On theaforesaid allegations, the appellant (Rahul) and other accused, by name,Ramesh were charge-sheeted under Section 302 read with Section 34,CIPC; and the appellant herein was also charge-sheeted for offence underSection 25(1B)(a) of the Arms Act, 1959. Accused pleaded not guiltyand claimed trial.

6. To prove the charges framed against the appellant and another,prosecution has examined 20 witnesses, namely, PW-1, Krishan Lal;DPW-2, Manjeet; PW-3, Anil, brother of deceased Jitender alias Jittu;PW-4, Ravinder Pal, Senior Scientific Offficer; PW-5 Dr. Hitesh Chawla;PW-6 Jaswant Singh (complainant); PW-7 Dharmender Singh, draftsman;PW-8 Inderjeet, photographer; PW-9 HC Ravinder Kumar; PW-10 HCArvind Kumar; PW-11 ASI Surat Singh; PW-12 Kasturi, mother ofdeceased Jitender; PW-13 constable Jasveer; PW-14 constable ManojEKumar; PW-15 Krishan Singh, Reader to District Magistrate; PW-16Sarif Singh; Inspector (investigating officer); PW-17 ASI Amir Singh;PW-18 EHC Rajbir Singh; PW-19 constable Radhey Shyam; and PW-20 Vijender Singh, Deputy Superintendent of Police (InvestigatingOfficer). In defence, on behalf of the accused, DW-1 Rani, widow ofFJagdish was examined.

7. After completion of the trial, the Sessions Judge, Bhiwani, byrecording a finding that the prosecution has proved the charges, videjudgment dated 17.10.2012, held that both the accused Rahul (appellantherein) and Ramesh were guilty for offence under Section 302 readGwith Section 34, IPC and appellant Rahul is also found guilty for offenceunder Section 25 of the Arms Act and convicted them accordingly. Byorder dated 20.10.2012 both the accused were sentenced to undergolife imprisonment and to pay a fine of Rs.20,000/- each, in default ofpayment of fine, to undergo rigorous imprisonment for a further periodof one year each under Section 302 read with Section 34, IPC and furtherH

sentenced appellant Rahul to undergo rigorous imprisonment for a periodof two years and to pay a fine of Rs.5,000/- for offence under Section25 of the Arms Act, 1959. Both the sentences were ordered to runconcurrently.

8. Aggrieved by the conviction recorded and sentence imposedby the learned Sessions Judge, Bhiwani, the appellant, along with anotheraccused, namely, Ramesh approached the High Court of Punjab &Haryana at Chandigarh by way of Criminal Appeal No.D-1060 of 2012.The High Court, by judgment and order dated 06.12.2016, while confirmingthe conviction recorded and sentence imposed on the appellant, hasallowed the appeal partly by acquitting the other accused, namely, Ramesh.The High Court has held that prosecution has failed to prove its caseagainst Ramesh (appellant before High Court) beyond reasonable doubt.

9. We have heard Sri Tathagat Harsh Vardhan, learned counselappearing for the appellant and Sri Dinesh Chander Yadav, learnedAdditional Advocate General for the State of Haryana.

10. Learned counsel for the appellant has made the followingsubmissions :

•The incident in question was a blind murder and the convictionis solely based on the circumstantial evidence.

•PW-3 (Anil) and PW-12 (Kasturi) who are brother andmother respectively of the deceased, are interested witnessesand the conviction is based on the testimony of theseinterested witnesses, to prove that deceased was last seenwith the appellant.

•PWs-3 and 12 have made improvements in their statementsand there are material contradictions in their depositions.Moreover, PW-3 was declared hostile by the prosecution.

•Both these star witnesses have tried to introduce new theoryimputing motive for the first time by stating that panchayatwas held by Ramesh and Ashok against Jittu (deceased) forlatter calling Priyanka, daughter of Ramesh and sister ofAshok.

•The conviction is based on the alleged recovery of weaponat the instance of the accused – appellant herein and saidweapon was used in commission of offence, though the samewas not proved by the prosecution.

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508SUPREME COURT REPORTS

A•In absence of any other independent evidence, courts belowhave committed error in accepting such evidence which iswith material contradictions. It is submitted that PW-3 hashimself stated in the chief examination that he did not haveany suspicion on anyone, and there was no enmity or grudgewith the accused persons. Further the conduct of theBaforesaid two witnesses is not trustworthy and is unnatural.Thus, last seen theory is to be disbelieved and discarded. Itis submitted that any amount of suspicion, cannot substituteproof and as such it was the duty of the courts to take utmostprecaution before ordering conviction on the basis ofCcircumstantial evidence.

•Recovery alleged to have been made at the behest of theappellant is false and unreliable, as much as, no independentwitness was called to substantiate the so-called recovery of.315 bore country made pistol and two live cartridges.

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•Lastly stating that the appellant has been falsely implicatedin the instant case and is undergoing incarceration from lastabout 11 years, it is submitted that it is a fit case to allow theappeal by acquitting the appellant for the charges levelledagainst him.ETo support his contention that the suspicion, howsoever grave,cannot replace proof, learned counsel relied on the judgment of this Courtin the case of State of Goa etc. v. Sanjay Thakran & Anr. Etc.[1]wherein this Court has laid down the tests to be applied, when the caserests upon circumstantial evidence. Relying on the aforesaid judgment,Fit is submitted that the tests stated in the above said judgment are notsatisfied by the prosecution, to bring home the guilt of the accused. Further,in support of the argument that the ‘circumstance of last seen together’does not by itself necessarily lead to inference that it was the accusedwho committed crime and there must be something more to establishconnection between accused and the crime, that points to guilt of accusedGand none else, he has placed reliance on a judgment of this Court in thecase of Kanhaiya Lal v. State of Rajasthan[2]. Further, submitting thatto prove the guilt of the accused based on circumstantial evidence, the 1 (2007) 3 SCC 755H2 (2014) 4 SCC 715

evidence and circumstances must form a chain of events, placed relianceon a judgment of this Court in the case of Wakkar & Anr. v. State ofUttar Pradesh[3].

11. Learned Additional Advocate General appearing for the State,by drawing our attention to the statements of various witnesses whichare on record, has submitted that apart from the evidence of PW-3 andPW-12 several other witnesses were examined on behalf of theprosecution to prove the guilt of the appellant. It is submitted that if theentirety of evidence is taken into consideration, it makes it clear that theappellant alone has committed the offence. It is further submitted thatthe motive was also established, namely, that deceased had developedrelation with Priyanka who is the wife of the appellant. It is furthersubmitted that the forensic report also supports the case of the prosecutionto show that the weapon, recovered at the instance of the appellantfrom the residence of his Bua, was used for committing the offence.Lastly, it is submitted that merely because PW-3 and PW-12 who arebrother and mother respectively of the deceased were examined to provethe case of the prosecution, same is no ground to discard their testimony,if the same is corroborated along with other oral and documentaryevidence on record. It is submitted that having regard to facts andcircumstances of the case, the prosecution has clearly proved the chainof events and if the same is considered along with the post mortemreport and the recoveries effected at the instance of the appellant, itleads to an irresistible conclusion that the appellant has committed theoffence. Further, it is submitted that the trial court as well as the HighCourt have elaborately considered the evidence on record and in viewof the concurrent findings, so far as the appellant is concerned, there areno grounds to interfere with the same.

12. We have considered the submissions made by the learnedcounsel on both sides and perused the material on record.

13. Though the appellant (Rahul) and another accused, namely,Ramesh were tried together and were convicted by the trial court but onappeal the High Court has allowed the appeal qua Ramesh and acquittedhim of the charges by recording a finding that prosecution has failed toprove the guilt of the accused Ramesh beyond reasonable doubt. At thesame time, the High Court has confirmed the conviction recorded andsentence imposed, by the trial court, on the appellant. As there is no AB

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Aappeal by the State challenging the acquittal recorded by the High Court,as such, we are only required to examine whether the circumstantialevidence on which basis the conviction of appellant (Rahul) is recorded,establishes the guilt of the accused or not. Before we deal with thecontentions advanced, we need to notice the relevant evidence which isled by the prosecution to prove the case against the accused appellantB(Rahul).

14. It is the case of the prosecution that appellant Rahul has marriedPriyanka, who is the daughter of Ramesh and sister of Ashok. It is thecase of the prosecution that because of the relationship of the deceasedJitender @ Jittu with Priyanka who is the wife of the appellant, theCappellant and other accused have decided to eliminate the deceased. Itis true that the entire case rests upon the circumstantial evidence. Inocular evidence there is a deposition of PW-3 and PW-12 who are brotherand mother respectively of the deceased. Merely because two of thewitnesses are related to the deceased, that by itself, is no ground toDdiscard their testimony. If their testimony is corroborated by otherevidence on record, same can be relied on to establish the guilt of theaccused.

15. In this case PWs-1 and 2 were declared hostile and PW-3also, at some stage, was declared hostile. He was cross-examined byEthe counsel for the prosecution. In his chief examination, PW-3 (Anil),brother of the deceased (Jittu) has deposed that, Jitender alias Jittu washis younger brother. On 06.08.2010, Ramesh from village Chandwashad come to his house and he told Jittu in his presence at about 02:00 or02:30 p.m. that appellant (Rahul) would come in the evening and he hada programme of going to Haridwar in order to bring ‘kawar’. ThereafterFin the evening at about 05:00 p.m., he, his mother and brother Jittu wentto Badhra in a bus. They purchased some articles and after some timeJittu separated from them and after two hours, Rahul (appellant), Jittuand Ashok came in a Maruti car 800 CC No.DL-9CJ-5165 and toldthem that they were going to Haridwar and would come back in 3-4days. Jittu had gone with Rahul and Ashok. After 3-4 days he tried toGcontact his brother on his mobile, but both the mobiles were switchedoff. Further, he has deposed that on 14.08.2010 his sister had read thenewspaper and told him the description of cloths and slippers whichwere mentioned in the newspaper. Thereafter, he also read thenewspaper, as such they went to Police Station and saw the cloths ofHJittu and the photographs of dead body of Jittu. They identified the cloths and photographs of Jittu. At that time he did not have any suspicion onanyone. After he has deposed to some extent by way of chief examination,he was declared hostile at the request of the Public Prosecutor and hewas further cross-examined by the Public Prosecutor. In the cross-examination, he has admitted that he stated to police that his brother hadmade a telephone call to Priyanka - sister of Ashok Kumar and on that,Ashok and Ramesh came to their house and protested, and that mightbe the reason for murdering his brother Jittu. Senior Scientific Officer –Ravinder Pal Singh was examined as PW-4 and in his deposition, hestated that he along with his assistant inspected the spot and preparedhis report under Ex.PE and he also prepared the rough sketch Ex.PF.Doctor who had conducted post mortem examination, namely, Dr. HiteshChawla, was examined as PW-5. In his deposition he has stated that healong with Dr. Jitender Jakhar conducted post mortem examination onthe body of a male individual on 09.08.2010 and they have noticedfollowing injuries :

“The length of the body was 180 cm. The body was wearing :-

(1) A multicoloured (orange, white, black check shirt) full sleeved,with imprint over its inner back as shown in post-mortem report.The shirt was blood stained and showing holes corresponding withunderlying injuries.

(2) A white baniyan with trademark as Rupa’s Joy 90 cm. Thebaniyan was blood stained.

(3) A cream pant with hook and zip tied in situ. The pant wasblood stained and having a trademark over inner side of zip asshown in post mortem report.

(4) Blue and grey stripes underwear with elastic waist havingimprint Jockey over its elastic.

(5) Red thread around neck having a yellow metallic locket of“Shivji” in it.

The body was at room temperature. It was emitting foul smell.Clusters of eggs and maggots of size 0.3-0.5 cm were present allover the body at places. Scalp hairs were black, 6-8 cm long,peeled off with moderate traction. The mouth, lips and tonguewas deformed. The eyes were closed. Moustaches were 0.3-0.5cm long black, beard was shaven. The mouth was open with tip A

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of tongue protruding out. Facial features were distorted. Rigormortis was passed off; marbled appearance of skin was presentat places. Epidermis was peeled off at places. The chest wastense. Abdomen was distended. Greenish discoloration was seenover anterior abdominal wall. Pubic hairs were 2-3 cm long, blackcoloured and curly. Penis and scrotum were distended.

All ends of long bones were fused including medial end of clavicle.Cranial sutures namely sagittal, coronal & lambdoid were notobliterated on the inner table as well as outer table of skull. Bodyof sternum was fused; xiphoid and manubrium were not fused.All third molars were erupted and showing mild to moderateattrition.

The following injuries were over the body:

(1) A firearm entry wound of size 2.5 x 2.0 cm over right anteriorchest wall, 3 cm medial to right nipple, 5 cm away from midlineand 140 cm above right heel. The margins of wound were irregular,inverted and abrasion collar for 3-5 mm was present all aroundthe entry wound. The wound was directed laterally downwards,backwards from left to right, piercing the 3[rd] and 4[th] ribs anteriorly,pleura and underneath lungs to emerge out as wound no.2.

(2) A firearm exit wound of size 1 x 0.5 cm over upper back rightside, 10 cm away from midline and 15 cm below shoulder blade.The margins of wound were everted and irregular.

(3) A firearm entry wound of size 2 x 2 cm over left anterior chestwall, 4 cm medial to left nipple and 5 cm away from midline and139 cm above left heel. The margins of wound were irregular,inverted and abrasion collar for 3-5 mm was present all aroundthe entry wound. The wound was directed backwards, downwards,from left to right, piercing the 3[rd] intercostal space, underneathpleura, lung, the pericardium, base of heart and trachea. The bulletwas found embedded just beneath the skin, in muscular spaceover right upper back along the inferior border of scapula, 12 cmaway from midline and 18 cm below shoulder blade. The lengthof bullet was 3.0 cm. The whole of track was ecchymosed in itsentire length.

(4) A firearm entry wound of size 3.0 x 2.0 cm over left side offace, lateral to left angle of mouth and 155 cm above left heel.

The margins of wound were irregular, inverted. The medial endof wound was reaching up to lateral angle of mouth. The wouldwas directed medially backwards and upwards from left to right;the left ramus of mandible, left maxilla and right maxilla wasfractured into multiple pieces with the fractured ends showinginfiltration of blood; to emerge out as wound no.5.

(5) A firearm exit would of size 2.5 x 2.0 cm situated 5 cm behindright ear. The margins of wound were everted and irregular.

The topographic representations of the injuries described was madeand attached with post mortem report.

The following findings were observed on systemic examination :- Skull, vertebrae and internal organs of generation were healthy.The membranes of brain, hyoid and peritoneum were intact. Brainwas thickish, grayish pasty. The large vessels and urinary bladderwere empty. Stomach contained app. 30 cc. of mucoid materialand its mucosa was pale. Small intestine contained chime. Largeintestine contained fecal matter and gases. The liver, spleen andkidney were pale and softened.”

The doctor (PW-5) has deposed that the cause of death wasbecause of fire-arm injuries and they were ante mortem in nature.Probable time that elapsed between injuries and death was immediateand that of between death and post mortem examination was 1-3 days.Further, through him, it is proved that the fired bullet Ex.P1 was thesame which was taken out from the body of the deceased. Thecomplainant (Jaswant Singh) who has informed to the police at firstinstance, was examined as PW-6. He has deposed, reiterating theinformation which he has given to police. The draftsman who preparedthe scaled site plan Ex.PT was examined as PW-7 and to prove thephotographs Ex.PW8/1 to Ex.PW8/8, PW-8 Inderjit was examined. PW-10 Head Constable Arvind Kumar, who was on patrolling duty alongwith other police officials, has inspected the car of the appellant on21.08.2010 and he was interrogated by the investigating officer to whomdisclosure statement was made under Ex.PV. Further, PW-10 has alsopointed out that the appellant has disowned the earlier statement andstated that he concealed the pistol and cartridges in House No.160,Housing Board, Bhiwani in the house of his Bua. That disclosurestatement was recorded as Ex.PX. The mother of the deceased PW-12

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A(Kasturi) in her deposition while stating that Jittu was taken by theappellant (Rahul) and Ashok from the bus stop stating that they weregoing to Haridwar to bring ‘kawar’. She has further stated that fewdays prior to occurrence, a panchayat was convened by Ramesh andAshok on the point that her son Jittu was making telephone calls todaughter of Ramesh and only due to this the accused have killed herBson. PW-16 – Investigating Officer (Sarif Singh) in his deposition hasclearly stated that he lifted two empties from the spot and they weretaken into possession and sealed vide memo Ex.PL. He also stated thathe lifted blood-stained earth from the spot which was sealed in parcelvide memo Ex.PK. Further, PW-17 – ASI Amir Singh in his depositionChas stated that on 25.08.2010 he was posted as I.O. at Police StationCharkhi Dadri and after arresting Rahul he has interrogated him and hemade his disclosure statement Ex.PLL. Vijender Singh, Dy.Superintendent of Police/SHO, P.S. Sadar, Dadri was examined as PW-20 on 31.08.2010.

D16. In defence, accused examined DW-1 – Rani, widow of Jagdish,resident of House No.160, Old Housing Board Colony, Bhiwani. In herdeposition, she has stated that appellant-accused is her real nephew.Though she has stated in her cross-examination that appellant (Rahul)never resided with her and he was residing in village Mirpur, Distt. Meerut,has clearly admitted that police officials had come to her residence.EThough she was examined to disprove the recovery of pistol from herhouse at the instance of the appellant, but at the same time she hasadmitted in the cross-examination that police officials had come to herhouse about a year and half earlier to her statement.

17. Though it is mainly contended by the learned counsel for theFappellant that the motive attributed is an improved version in thestatements made by PW-3 and PW-12, but in a case of this nature it is tobe noticed that deceased was known to the appellant (Rahul) andRamesh. Merely because PW-3 has deposed at first instance that therewas no suspicion or any animosity between the deceased and the appellant

but at the same time he has clearly stated that on 06.08.2010, Ramesh,Gthe other accused had come to village Chandwas and in his presenceRamesh told to Jittu at about 2:00 or 2:30 p.m. that Rahul would come inthe evening and they have planned to go to Haridwar in order to bring‘kawar’. Further, it is also clearly deposed that the same day eveningPW-3 – Anil went along with his brother Jittu and his mother Kasturi –HPW-12 to Badhra in a bus and they purchased some articles, thereafter Jittu was separated and after two hours Rahul, Jittu and Ashok came ina Maruti car and stated that they were going to Haridwar and wouldcome back. Initially no suspicion was indicated but at the same timewhen PW-3 was declared hostile and in cross-examination by the PublicProsecutor he has admitted that he stated to police, his brother Jittu hadmade a telephone call to Priyanka, sister of Ashok Kumar and on thatAshok who is the brother of Priyanka and Ramesh, father of Priyanka,came to their house and protested. He also indicated, that might be thereason for murdering his brother Jittu by the appellant and other accused.PW-12 who is the mother of the deceased has, in clear terms, statedthat few days prior to the occurrence, a panchayat was convened byRamesh and Ashok on the point that her son Jittu was making telephonecalls to daughter of Ramesh and due to this they killed her son. Althoughit is the contention of the counsel for the appellant that as PW-3 andPW-12 are family members/close relations of the deceased, as such,their testimony is to be discarded, but the same cannot be accepted.Merely because PW-3 and PW-12 are related, by itself is no ground, toreject their testimony. Further, a close relative who is a natural witnesscannot be regarded as an interested witness. It is fairly well settledproposition that even the evidence of interested person can also beconsidered provided such evidence is corroborated by other evidenceon record. At this stage, it is apposite to refer to a judgment of this Courtin the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan[4].Paragraphs 24 and 25 of the said judgment read as under :

“24. In Hari Obula Reddy v. State of A.P. (1981) 3 SCC 675 athree-Judge Bench has opined that it cannot be laid down as “an invariable rule that interested evidence can never form thebasis of conviction unless corroborated to a material extent inmaterial particulars by independent evidence. All that isnecessary is that the evidence of the interested witnesses shouldbe subjected to careful scrutiny and accepted with caution. Ifon such scrutiny, the interested testimony is found to beintrinsically reliable or inherently probable, it may, by itself, besufficient, in the circumstances of the particular case, to basea conviction thereon.” (SCC pp.683-84, para 13)

25. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614 thisCourt has stated (SCC p.621, para 15) that a close relative who is A

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Aa natural witness cannot be regarded as an interested witness, forthe term “interested” postulates that the witness must have someinterest in having the accused, somehow or the other, convictedfor some animus or for some other reason.”

While rejecting the plea that the witnesses were in close relationBto the deceased, in the case of Ram Chander & Ors. v. State ofHaryana[5] this Court has held as under :

“33. The submission of the learned counsel for the appellants thatsince Guddi (PW 9) was in close relation with the deceasedpersons, she should not be believed for want of evidence of anyCindependent witness, deserves to be rejected in the light of thelaw laid down by this Court in Dalbir Kaur v. State of Punjab(1976) 4 SCC 158 and Harbans Kaur v. State of Haryana (2005)9 SCC 195, which lays down the following proposition (HarbansKaur case, SCC p.198, para 7)

D“7. There is no proposition in law that relatives are to be treatedas untruthful witnesses. On the contrary, reason has to be shownwhen a plea of partiality is raised to show that the witnesseshad reason to shield the actual culprit and falsely implicate theaccused.”.”

E18. It is clear from the deposition of PW-5 (doctor) and the postmortem report that, injuries were caused over the body of the deceasedwith a fire-arm and the bullet was found embedded in the body. It is alsoclearly stated that death was due to fire-arm injuries and was ante mortemin nature. He has clearly stated that the fired bullet which was markedas Ex.P1 was the same which was taken out from the body of theFdeceased.

19. If we closely scrutinize the oral evidence on record coupledwith the documentary evidence, we are of the considered view thatthere is a complete chain of evidence which would lead to irresistibleconclusion that the appellant-accused has committed the offence andGnone else. Even the recoveries are sufficiently proved with the cogentevidence. In the disclosure statement the appellant-accused has statedthat he has kept the weapon with his Bua at House No.160, Old HousingBoard Colony, Bhiwani. Though she was examined on behalf of theaccused to disprove the recovery, at the same time, she has admitted in the cross-examination that police have visited her place a year and ahalf earlier to her statement. If this part of evidence is examined, coupledwith the other documentary evidence on seizure, there is no reason todisbelieve the recovery of weapon, from the residence of appellant’sBua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All therecoveries have been proved by examining witnesses for such recoveries.Only in view of the disclosure statement Ex.PX recoveries of pistol .315bore and cartridges were made from the house of his Bua at Bhiwanivide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL reportEx.PXX, the country made pistol .315 bore used by the accused-appellantfor committing the murder of the deceased was found in working orderand both the fired cartridges recovered from the spot and fired bullettaken out from the body of the deceased, are found fired from the countrymade pistol recovered at the instance of accused (Rahul). Further, theinjuries on the person of deceased have been proved by doctor who wasexamined as PW-5. The material evidence on record produced by theprosecution has been further corroborated by call details of mobile phonesof Ramesh, Ashok Kumar and Jitender and such call details have beenproved by the statement of PW-14. Further, it is also well settled that ifother evidence on record clearly establishes that the deceased wasmurdered by the appellant by using fire-arm, the factum of motive losesits importance, more so, in this case the motive has been established byleading cogent evidence to show that only because the deceased haddeveloped relationship with appellant’s wife Priyanka, has decided toeliminate the deceased.

20. From the evidence on record, we are of the considered viewthat prosecution has proved the guilt of the accused beyond reasonabledoubt by leading cogent evidence. Further, the motive is also proved bythe prosecution.

21. In the case of Sanjay Thakran[1]relied on by the learnedcounsel for the appellant, this Court has held that certain tests are to befulfilled by the prosecution by leading cogent evidence, when the caserests upon circumstantial evidence. Further, in the case of Wakkar[3] thisCourt has held that mere recovery itself cannot be the basis for convictionand recovery of incriminating articles and its evidentiary value has to beconsidered in the light of other relevant circumstances. However, havingregard to evidence on record in this case on hand, we are clearly of theview that the prosecution has satisfied all the tests mentioned in the caseof Sanjay Thakran[1] to bring home the guilt of the accused, by resting A

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Aupon the circumstantial evidence. If the factum of recoveries is consideredalong with other evidence in entirety, it gives an irresistible conclusionthat the appellant alone has committed offence by using the weapon,which is recovered from the house of DW-1 who is the Bua of theappellant. Further, it is also to be noted that whether the guilt of theaccused is proved or not based on the circumstantial evidence, eachBcase has to be judged on the overall assessment of the evidence onrecord, as such we are of the view that the case law which is referredabove, relied on by the learned counsel for the appellant, would not renderany assistance to accept his plea that the appellant was falsely implicated.

22. The High Court, in the appeal filed by the appellant herein andCanother accused Ramesh, reappreciated the evidence on record andconfirmed the conviction and sentence, so far as the appellant is concernedand acquitted the other appellant, i.e., Ramesh. Though it is contendedby learned counsel appearing for the appellant, on same set of evidencewhile acquitting the other accused Ramesh there is no reason to confirmDthe conviction and sentence so far as the appellant herein is concerned.In the impugned judgment, the High Court has recorded reasons foracquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his depositionhas clearly stated that when he along with his mother and deceasedJittu, went to Badhra, after some time Jittu was separated from them,Eand came back along with Rahul (appellant) and Ashok (proclaimedoffender) in a Maruti car. It is stated by PW-3, at that time Jitender @Jittu stated that he was going to Haridwar and would come back in 3-4days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok. Tothe same effect is the statement of PW-12 (Kasturi), mother of thedeceased. From the said evidence on record, it stands established thatFthe deceased Jitender @ Jittu was last seen in the company of Rahul(appellant) and Ashok (proclaimed offender) only. There was no mentionthat Ramesh (appellant before the High Court) also accompanied Jitender@ Jittu for going to Haridwar. In the absence of any evidence on recordto show that deceased was also seen with Ramesh lastly by PW-3 andGPW-12, the High Court has come to the conclusion, that prosecution hasnot proved its case beyond reasonable doubt so far as the other appellantRamesh is concerned. In view of such reasoning recorded by the HighCourt and evidence on record there are justifiable reasons for acquittingthe other appellant, namely, Ramesh, while confirming the conviction sofar as the appellant herein is concerned.H

23. For the aforesaid reasons, as the appeal is devoid of merits,same is dismissed. However, as it is stated by learned counsel for theappellant that he has already served sentence for more than 11 years, itis needless to observe, that after completing 14 years of sentence it isopen to the appellant to make representation for remission of the sentence.If such representation is made, the concerned authority/JailSuperintendent has to send the same to the Government which is to beconsidered in accordance with the policy of the State.

Ankit Gyan

Appeal dismissed.

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