DINESH LAL Vs STATE OF UTTARAKHAND
Bench: T.S. THAKUR,V. GOPALA GOWDA
Case number: Crl.A. No.-001314-001314 / 2015
Diary number: 29901 / 2013
Advocates: AJIT SINGH PUNDIR Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1314 OF 2015 (ARISING OUT OF SLP (Crl.) NO. 10250 OF 2014)
DINESH LAL ………APPELLANT Vs.
STATE OF UTTARAKHAND ……RESPONDENT
J U D G M E N T
V.GOPALA GOWDA, J. Leave granted.
2. This criminal appeal by special leave is
directed against the impugned judgment and
order dated 3.7.2013 passed in Crl. A. No. 153
of 2010 by the High Court of Uttarakhand at
Nainital whereby it affirmed the judgment and
order dated 10.6.2010 passed by the District &
Sessions Court, Tehri Garhwal, New Tehri (for
short the “the Trial Court”) in Sessions Case
No. 16 of 2009, convicting the appellant
herein for the offence punishable under
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Section 302 of Indian Penal Code, 1860 (for
short “IPC”) and Section 4/25 of the Arms
Act, 1959 and sentenced him to life
imprisonment with a fine of Rs.20,000/- for
the offence punishable under Section 302 of
IPC and two years rigorous imprisonment with a
fine of Rs.10,000/- for the offence punishable
under Section 4/25 of the Arms Act, 1959. Both
the sentences imposed upon him for the
abovesaid offences were to run concurrently.
3. Brief facts are stated hereunder to
appreciate the rival legal contentions urged
on behalf of the parties:
On 11.03.2009 complainant Jotar Das
submitted a written complaint to Naib
Tehsildar, Jakhnidhar, District Tehri Garhwal,
Uttarakhand regarding the murder of his
daughter, Kumari Kusum (hereinafter referred
to as “deceased”).
4. In the said complaint it was stated by him
that a proposal for the marriage of the
deceased was made by the appellant about 4
months back from the date of the said written
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complaint. The appellant used to visit the
house of the complainant but he refused to
give his daughter in marriage to the appellant
after hearing complaints about his activities.
5. On 11.03.2009, it is alleged that at about
11.30 AM the appellant reached Vartyakhund,
through jungle where the deceased was cutting
grass along with her grandmother Smt. Madi
Devi (PW-1) and her aunt Smt. Ram Maya Devi
(PW-2). After reaching there the appellant
attacked the deceased with a ‘khukri’ (a sharp
edged weapon), at the left side below her
heart, as a result of which she died on the
spot. Thereafter, he hit himself with the same
‘khukri’ below his naval and fell unconscious.
This information of murder was given to the
complainant by his mother Smt. Madi Devi (PW-
1), who witnessed the murder of the deceased
along with PW-2.
6. On the basis of the written complaint, FIR
in Crime Case No. 02/2009 was registered
against the appellant. The matter was
investigated by the investigation officer and
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the charge sheet was filed against the
appellant for the offences punishable under
Sections 302 and 309 of IPC and under Section
4/25 of the Arms Act, 1959.
7. The Trial Court convicted the appellant for
the offences punishable under Section 302 of
IPC and Section 4/25 of the Arms Act, 1959 and
he was awarded the sentence of life
imprisonment with a fine of Rs.20,000/- for
the offence punishable under Section 302 IPC
and sentence of two years rigorous
imprisonment with fine of Rs.10,000/- for the
offence punishable under Section 4/25 of the
Arms Act, 1959. The above sentence was imposed
upon the appellant for the offences referred
to supra were to run concurrently.
8. Aggrieved by the decision of the Trial
Court, the appellant filed an appeal before
the High Court urging various grounds and
prayed for setting aside the judgment and
order passed by the Trial Court and acquit him
of the charges framed against him. The High
Court upheld the decision of the Trial Court
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holding that no attempt was made by the
appellant to establish his plea. Hence, this
appeal.
9. Mr. A.S. Pundir, learned Amicus Curiae for
the appellant contended that the High Court
has gravely erred in placing reliance on the
depositions of Smt. Madi Devi (PW-1), Smt. Ram
Maya Devi (PW-2), Smt. Shanti Devi (PW-3),
Jotar Das (PW-4) and Ramesh (PW-8) as all were
the members of same family and it was natural
for these interested witnesses who have stated
a concocted version against the appellant in
order to save the main assailant Ramesh (PW-
8), who actually attacked the two victims
i.e., the deceased and the appellant, in his
outrage against the deceased. The said attack
resulted into the death of the deceased and
serious injuries caused to the appellant. He
further urged that the courts below have erred
in not noticing the concocted case set up by
the prosecution against the appellant which is
most unnatural. He further submitted that
there is lot of inconsistency in respect of
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the time of occurrence of incident that was
stated by Smt. Madi Devi (PW-1) and Ram Maya
Devi (PW-2) in their statements of evidence,
which is sufficient to show that none of said
witnesses could have been available on the
spot at the time of the incident.
10. He further contended that the High Court
has failed to appreciate that the Trial Court
erred in using the part of statement of the
appellant made under Section 313 of the Code
of Criminal Procedure, 1973 about the injury
caused to him by ‘khukri’ while ignoring the
rest of the statement regarding the assault
being made by Ramesh, the brother of the
deceased upon him. Therefore, the concurrent
findings of fact recorded by the High Court on
the charge framed against appellant in
exercise of its appellate jurisdiction and
upheld the Trial Court’s decision, which is
erroneous in law as the same is without proper
re-appraisal of the evidence. On this ground
itself the impugned judgment and order of the
High Court is required to be set aside by this
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Court in exercise of its appellate
jurisdiction.
11. On the other hand, Mr. Ashutosh Kumar
Sharma learned counsel for the respondent-
State sought to justify the concurrent
findings of fact recorded in the impugned
judgment and order by the High Court
contending that Smt. Madi Devi (PW-1), who is
an eye witness to the entire incident of
murder, has clearly narrated the whole
incident in her examination in chief evidence
before the Trial Court and also successfully
identified the accused in the Court. Smt. Ram
Maya Devi (PW-2) supported the version of PW-
1. The deposition of the said witnesses and
other prosecution witnesses were found to be
reliable and trustworthy by the Trial Court,
upon which the High Court also gave a
concurrent finding. Therefore, the same does
not need interference by this Court in
exercise of its appellate jurisdiction.
12. It was further contended by him that the
plea of the appellant that PW-8 used ‘khukri’
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against him but the deceased came in between
as a result of which, she received fatal
injuries which caused her death is totally
untenable as the appellant has not made any
effort at all to give any evidence before the
Trial Court in support of the said plea and
not even bothered to offer himself for
examination to adduce evidence in support of
his defence before the Trial Court. Therefore,
the High Court was right in concurring with
the judgment of the Trial Court.
13. This Court at the admission stage vide its
order dated 2.2.2015 issued notice only for
limited purpose to find out as to whether the
matter can be remitted back to the High Court
for re-appraisal of the evidence.
14. We have heard the learned counsel for the
parties and carefully examined the concurrent
findings recorded by the High Court on the
charges. From a bare perusal of the impugned
judgment and order it is abundantly clear that
the High Court has passed a cryptic order
without appraising the evidence properly and
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scrutinising the depositions of PW-1 to PW-4
and PW-8, who are all members of the same
family and they are interested witnesses. The
Trial Court appears to have ignored the
appellant’s version that it was PW-8, who
actually used ‘khukri’ to attack the appellant
but unfortunately the deceased came in between
as a consequence of which she received fatal
injuries which resulted in her death. The
Trial Court has paid little heed to this
aspect of the matter while passing its
judgment and order of conviction and awarding
sentence upon the appellant. It has relied
upon the depositions of the interested
witnesses of the prosecution after
disbelieving the case of the appellant holding
that he did not tender himself for examination
before the Trial Court in support of his
defence.
15. The impugned judgment and order passed by
the High Court is neither a well reasoned
order nor based on a careful re-appraisal of
the evidence on record. The conclusion arrived
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at by the High Court in concurring with the
findings of the Trial Court on the charges
levelled against the appellant are based on
proper appreciation of evidence is not
sustainable in law for the reason that the
High Court has not re-appraised the evidence
on record while arriving at such conclusion.
16. The first Appellate Court is required in
law to examine the case of the appellant with
reference to the ground urged in the appeal.
The High Court in law is required to re-
appraise the evidence adduced by the
prosecution witnesses particularly in the
light of the ground urged on behalf of the
appellant that PW-1 to PW-4 and PW-8 are
interested witnesses and therefore, their
depositions should not have been accepted to
record findings of fact on the charges framed
against him. As could be seen from the
reasoning portion of the impugned judgment and
order no such effort is made by the High
Court, except recording the findings of fact
on the charges levelled against the appellant
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holding that the same are proved.
17. In view of the foregoing reasons, the
impugned judgment and order is liable to be
set aside and we accordingly set aside the
same and remand the case to the High Court for
its fresh disposal of the same in accordance
with law on merits after affording an
opportunity to the parties. Needless to
mention in this Order that as the appellant is
undergoing sentence imposed upon him in the
District Jail, Deharadun, Uttarakhand, and the
matter is pending from 2009, therefore, the
High Court is requested to dispose of the
appeal expeditiously, but not later than 6
months from the date of receipt of this order.
With the above observations this appeal is
disposed of.
…………………………………………………………J.
[T.S. THAKUR] …………………………………………………………J.
[V. GOPALA GOWDA] New Delhi, October 6, 2015