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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 221 of 2007  

Vivek Kalra                                                         …… Appellant

Versus

State of Rajasthan                                            …..  Respondent

J U D G M E N T

A. K. PATNAIK, J.

This  is  an  appeal  against  the  judgment  dated  

25.10.2004 of the Rajasthan High Court, Jaipur Bench, in D.B.  

Criminal Appeal No. 602 of 2002, maintaining the conviction  

of the appellant under Section 302 of the Indian Penal Code,  

1860,  (for  short  ‘the  IPC’)  and  the  sentence  of  life  

imprisonment and fine of Rs.1,000/- for the offence.

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2. The facts very briefly are that on 08.06.1997 at about  

8.30 a.m., one Lal Singh, who was running a tea shop at By-

pass Road, Sedariya Tiraha, lodged an FIR with Police Station  

Adarsh Nagar,  Ajmer.  In the FIR, he stated that at about  

8.00  a.m.  on  08.06.1997  one  truck  driver  told  him  that  

ahead of Shantinath Dharm Kanta, on the wall of pulia (small  

bridge) one boy has been murdered and laid down and he  

went there to see and found that one boy, aged about 13-14  

years, was lying dead in a pool of blood and several persons  

have gathered there.   The police registered a case under  

Section 302, IPC, and after investigation, the police filed a  

charge-sheet against the appellant under Section 302, IPC.   

3. At the trial, the prosecution did not examine any eye-  

witness  to  the  murder  of  the  deceased,  but  produced  

circumstantial evidence to establish that the appellant had  

committed the murder of the deceased and the trial court  

convicted the appellant.  On appeal, the High Court held in  

the impugned judgment that after the death of his father the  

appellant  was  living  with  his  uncle,  Gurcharan  Kalra,  and  

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there was a fixed deposit in his name of Rs.80,000/-, but as  

Gurcharan Kalra decided to utilize the fixed deposit only at  

the  time  of  marriage  of  the  appellant,  in  order  to  take  

revenge, the appellant purchased a dantli, took Ankit Kalra,  

the son of Gurcharan Kalra, in a Scooter on the evening of  

07.06.1997 to get a cassette, and committed the murder of  

Ankit Kalra, left the scene of incident, reached Jaipur and got  

himself  admitted  to  a  hospital  there  on  08.06.1997  for  

treatment saying that he has met with an accident.  

4. Learned counsel  for  the appellant  submitted that  the  

finding of the High Court in the impugned judgment on the  

motive of the appellant to commit the offence is based on  

the  evidence  of  Gurcharan  Kalra,  PW-11,  about  the  fixed  

deposit of Rs.80,000/- of the appellant, which the appellant  

used to demand, but from this evidence the High Court could  

not  have  come  to  the  conclusion  that  the  motive  of  the  

appellant was to take revenge by killing the deceased.  He  

next submitted that PW-5 has admitted in his evidence that  

the appellant had a good behaviour and had no bad habit  

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and, therefore, it is quite probable that the appellant has not  

committed the offence.  He further submitted that PW-5 has  

clearly  said  that  when  he  made  the  enquiry  from  the  

appellant about the deceased Ankit, he had told him that he  

had been assaulted by Munna and his 2 to 4 associates and  

caused injuries.  He submitted that it is quite possible that  

Munna may have killed the deceased and that the appellant  

had not committed the murder.  He further submitted that  

the medical evidence of PW-22, Dr. B.K. Mathur, is clear that  

the injury nos. 8 and 9 could not have been caused by dantli.  

He  submitted  that  since  the  prosecution  case  is  that  the  

appellant used a dantli to cause the death of the deceased,  

this  medical  evidence  creates  sufficient  doubt  on  the  

prosecution case.   

5. Learned counsel appearing for the State, on the other  

hand, supported the impugned judgment of the High Court  

by relying on the following circumstances:

(i) PW-6  has  stated  that  in  the  evening  of  

07.06.1997 when his parents had gone to the  

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market and he was playing with the deceased,  

the appellant came to their house and took the  

deceased with him saying that they will  come  

back after getting a cassette, but thereafter the  

deceased did not come back home.   

(ii) PW-5, the father of PW-6, has corroborated the  

evidence of PW-6 that at about 7.00 p.m. in the  

evening  of  07.06.1997,  he  and  his  wife  had  

gone to the market for shopping and when they  

came back home at about 9.00 p.m., PW-6 told  

them that the appellant took the deceased on a  

scooter on the pretext of taking a cassette.   

(iii) PW-28 has deposed that he used to work at V.K.  

Video Movies,  Plaza  Road,  and on 07.06.1997  

between 8.00 p.m. and 8.30 p.m. a person by  

the name of Vivek Kalra (the appellant) came to  

their  shop  and  took  one  cassette  of  picture  

Judwaa and deposited Rs.100/- in advance and  

his name has been entered in the register of the  

shop, but the cassette was never received back.  

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(iv) PW-7 is a witness to the panchnama of the dead  

body of the deceased (Ext. P-6) which bears his  

signatures at points A to B and he has said that  

one  dantli was  lying  on  the  ground  near  the  

pulia which had a wooden handle and was taken  

possession of by the police vide memo Ext. P7,  

which bears his signatures at points A to B and  

he has also  stated that  the  dantli was blood-  

stained.   

(v) PW-13 is a blacksmith and he has said before  

the  Court  that  the  appellant  had  come  to  

purchase a dantli from his shop and he agreed  

to pay a price of Rs.110/- out of which he paid  

advance of Rs.10/- to him and on the next day  

he came to the shop and took the sharp edged  

dantli and he had paid the balance of Rs. 100/-  

to  him  and  the  seized  Dantli was  produced  

before PW-13 as Article-1 and PW-13 identified  

Article-1 as the one that was purchased by the  

appellant from him.   

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(vi) PW-22,  Dr.  B.K.  Mathur,  has given his opinion  

that  he  conducted  the  postmortem  on  the  

deceased on 09.06.1997 at 9.30 a.m. and that  

the injuries no. 1 to 7 could be caused by the  

dantli.   

Learned counsel for the State submitted that considering all  

these circumstances established by the prosecution,  there  

can be no doubt that it is the appellant and the appellant  

only who has committed the murder of the deceased.  

6. We  have  considered  the  submissions  of  the  learned  

counsel  for  the  parties  and  we  agree  with  the  learned  

counsel for the appellant that from the evidence of PW-11  

one could  not  hold  that  the appellant  had committed the  

murder of the deceased to take revenge on his uncle (PW-

11), who had not given him Rs.80,000/- kept in fixed deposit.  

We  are,  however,  of  the  opinion  that  where  prosecution  

relies on circumstantial evidence only, motive is a relevant  

fact and can be taken into consideration under Section 8 of  

the Indian Evidence Act, 1872 but where the chain of other  

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circumstances establish beyond reasonable doubt that it is  

the  accused  and  accused  alone  who  has  committed  the  

offence and this is one such case the Court cannot hold that  

in the absence of motive of the accused being established by  

the prosecution,  the accused cannot be held guilty  of the  

offence.  In Ujjagar Singh v. State of Punjab [(2007) 13 SCC  

90], this Court observed:

“It  is  true  that  in  a  case  relating  to  circumstantial evidence motive does assume  great importance but to say that the absence  of  motive  would  dislodge  the  entire  prosecution story is perhaps giving this one  factor an importance which is not due and (to  use the cliché) the motive is in the mind of  the  accused  and  can  seldom  be  fathomed  with any degree of accuracy.”  

7.     In this case, the dead body of  Ankit was found on the  

morning of 08.06.1997 at around 8.00 a.m. and it is clear  

from the evidence of PW-5 and PW-6 that the appellant had  

taken  Ankit in a scooter between 7.00 p.m. and 9.00 p.m. on  

07.06.1997 on the pretext of getting a cassette.  PW-28 has  

confirmed  that  between  8.00  p.m.  and  8.30  p.m.  the  

appellant  had  come  to  his  cassette  shop  and  taken  the  

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cassette  of  the  film  Judwaa.   It  is  also  clear  from  the  

evidence of PW-5 and PW-6 that neither the appellant nor  

the deceased returned on the evening of 07.06.1997.  From  

the evidence of PW-26 and PW-7, we also find that the blood-

stained  dantli has  been  recovered  from  the  place  of  

occurrence and the blacksmith, PW-13, has confirmed that  

he had sold that particular dantli to the appellant at a price  

of Rs.110/-.   

8.  Dr. B.K. Mathur, PW-22, has said in his evidence that  

injury nos. 1 to 7 could have been caused by the dantli and  

that the death of the deceased has been caused from shock  

and haemorrhage with blood oozing from all the injuries.  We  

find that injury nos. 1, 2, 3, 4, 5, 6 and 7 are cut wounds on  

the left of the face, left of the neck, back of the neck, on the  

left muscles and specula bone intestine and on the left of the  

waist. The number and nature of these injuries together are  

enough in the ordinary course to cause death and have been  

caused by dantli purchased by the appellant.  Hence, merely  

because the prosecution has not  been able  to  prove that  

injury nos. 8 and 9 have been caused by  dantli, we cannot  

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hold that it is not the appellant who has caused the death of  

the deceased.

9.  It is true that PW-5 has stated that the appellant had a  

good  behaviour  and  had  no  bad  habit.   Section  8  of  the  

Indian  Evidence  Act,  1872,  however,  provides  that  the  

conduct  of  any  person  an  offence  against  whom  is  the  

subject  of  any  proceeding,  is  relevant,  if  such  conduct  

influences or is influenced by any fact in issue or relevant  

fact,  and  whether  it  was  previous  or  subsequent  to  it.  

Hence, any behaviour or conduct of the appellant would be  

relevant if it had nexus with the offence under Section 302  

alleged to have been committed by him.  This Court has held  

in Vikramjit Singh alias Vicky v. State of Punjab  [2006 (12)  

SCC 306] at page 314:   

“…..Conduct of an accused must have nexus  with the crime committed.  It must form part  of the evidence as regards his conduct either  preceding, during or after the commission of  the offence as envisaged under Section 8 of  the Evidence Act….”

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The general  good behaviour of the appellant and the fact  

that he had no bad habit have no nexus with the offence  

alleged  against  the  appellant  and  are  not  relevant  when  

other  circumstances  have  established  beyond  reasonable  

doubt that it is the appellant and the appellant alone who  

has committed the murder of the deceased.

10.   In the result, we find no merit in the appeal and we  

dismiss the same.   

……...……………………….J.                                                        (A. K. Patnaik)

……..………………………..J.                                                        (Chandramauli Kr. Prasad) New Delhi, February 15, 2013.    

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