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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