RAJA @ RAJINDER Vs STATE OF HARYANA
Bench: DIPAK MISRA,N.V. RAMANA
Case number: Crl.A. No.-000486-000486 / 2010
Diary number: 36986 / 2009
Advocates: M. M. KASHYAP Vs
KAMAL MOHAN GUPTA
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 486 OF 2010
Raja @ Rajinder ... Appellant
Versus
State of Haryana ...
Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal is directed against the judgment
and order dated 7.09.2009 of the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No. 770-DB of
2006, whereby the Division Bench has confirmed the
judgment of conviction and order of sentence passed by
the learned Additional Sessions Judge, Sirsa in Sessions
Case No. 357 of 2003 convicting the present appellant for
the offences punishable under Sections 302 and Section
201 read with Section 34 of the Indian Penal Code (IPC) and
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sentencing him to suffer rigorous imprisonment for life and
payment of fine of Rs.5000/- under Section 302 and
rigorous imprisonment of three years and fine of Rs.1000/-
under Section 201 read with Section 34 IPC with default
clause for the fine amount in respect of both the offences
with the stipulation that both the sentences would be
concurrent.
2. Bereft of unnecessary details, the prosecution case, as
has been unfurled is that on 18.1.2003 about 6.30 p.m.,
Het Ram, the deceased, had left his home with the
accused-appellant and did not return till the morning of
19.1.2003. The family members of the deceased searched
for him at various places and made enquiries from the
relations but despite their best efforts, he could not be
found. In course of that enquiry it was revealed by the
owner of a tea-stall that on 18.01.2003 about 8.30 p.m. the
appellant and the deceased had taken tea together and
thereafter they had left that place. Being so informed by
the tea stall owner, Subhash, PW-8, brother of the
deceased along with Pala Ram and Ramesh went to the
house of the accused-appellant, and came to learn from his
father Krishan Kumar, the co-accused, that Raja had gone
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to village Kharia but could not be contacted as the
telephone number of village Kharia was out of order.
Thereafter, Subhash, PW-8, the informant returned to his
house and waited till night for the return of Het Ram. When
the deceased did not come till night, Subhash along with
his relations again proceeded to the house of the appellant
who was present in the house, and informed them that in
the night of 18.01.2003 he and the deceased had taken tea
together but when they were returning to their houses, a
Sikh boy met them and Het Ram went with that boy on his
motor cycle. After getting the said information, when the
informant and others were returning from the house of the
accused, they noticed blood stains in the street in front of
the houses of Mohan and Mahender Singh. It aroused
suspicion of the informant that his brother might have been
murdered by the appellant and the dead body could have
been disposed of. The motive behind the incident, as
mentioned, was that the appellant was indulged in
consuming poppy husk and the father of the appellant had
a suspicion that the deceased was instrumental in making
his son a drug addict. On the basis of the aforesaid
allegations, an FIR No. 45 dated 20.1.2003 was lodged at
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the police station Rania. After the criminal law was set in
motion, the investigating agency went to the place where
blood stains were found and prepared the site plan and
seized the bloodstained earth. On the next day, police
went to village Bani in connection with the investigation
and blood stains were found on the stairs, platform and wall
of a well situated in the old Abadi of the village. The police
collected the bloodstained bricks from there and noticed a
bundle inside the well and eventually recovered the dead
body of Het Ram which was found inside the said bundle.
The investigating agency sent the dead body for post-
mortem to the General Hospital, Sirsa and arrested the
accused on 22.1.2003. During the investigation the
appellant suffered disclosure statement, Exh. P. EE, to the
effect that he had taken Het Ram to the tea stall and
thereafter to his ‘Nohra’ on a false pretext, where he had
caused a blow with a knife on the neck of Het Ram about
10.00 P.M. on 18.01.2003. Het Ram tried to escape but he
chased him and when the deceased fell down in front of the
house of Mahender Singh, he inflicted several blows with
the knife on the chest and the waist region of the
deceased. Being unable to drag the dead body back to his
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courtyard, he took the help of his father for the disposal of
the body. The blanket worn by the deceased was burnt in
the courtyard of the appellant. Thereafter, the
bloodstained clothes of the appellant and the knife were
recovered by the police from the pit of latrine on the basis
of the statement of the accused-appellant. The parcels of
bloodstained earth, bloodstained clothes of the accused
and the deceased, the seized knife and other materials
were sent to the Forensic Science Laboratory, Madhuban,
for examination and the report, Exhibit P.RR, was received
by the prosecution. During the investigation, statement of
Sukha, PW-7, was recorded on 21.1.2003 wherein he had
stated that the deceased was murdered by the appellant as
the appellant was suspicious that the deceased had illicit
relationship with his wife. Similar statement was also made
by Nanak, PW-9. The investigating officer recorded
statement of number of witnesses and after completing the
investigation, placed the chargesheet against the accused-
appellant for the offences punishable under Sections 302
and 201 read with Section 34 IPC. The co-accused, Krishan
Kumar, was chargesheeted for the offence under Sections
201 read with Section 34 IPC. After the chargesheet was
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laid, the competent court committed the matter to the
court of Session for trial. The accused pleaded not guilty
and claimed to be tried.
3. The prosecution in order to substantiate the charges
levelled against the accused persons examined as many as
13 witnesses. The principal witnesses are Dr. N.K. Mittal,
PW-1, who had conducted the post-mortem on the dead
body of the deceased, Sukha, PW-7, Subhash, PW-8, the
brother of the deceased and the informant, Nanak, PW-9,
Mahender, PW-10, who had seen the deceased and the
appellant having tea together in the tea stall and Kalawati,
PW-11, mother of the deceased who had witnessed the
deceased leaving the house in the company of the accused-
appellant.
4. The accused persons in their statements u/s 313 of
the Code of Criminal Procedure (CrPC) denied the
allegations and pleaded false implication. They claimed
that accused-Raja was neither married to anyone nor
addicted to opium and, therefore, the alleged motive to
commit the murder of Het Ram was totally baseless. They
further denied having made any disclosure statements to
the police and stated that the police had planted articles to
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create evidence against the accused. The accused persons
chose not to adduce any evidence in their defence.
5. The learned trial Judge, on the basis of the material
brought on record, came to hold that the whole case rested
on circumstantial evidence and the prosecution had been
able to establish the chain in completeness against the
accused persons and accordingly convicted the appellant
and his father and sentenced them, as has been stated
hereinbefore. Being dissatisfied, the appellant and his
father had preferred the criminal appeal wherein the High
Court had affirmed the conviction and sentence of the
appellant but as far as his father, Krishan Kumar, is
concerned, while maintaining the conviction, modified the
sentence of Krishan Kumar imposed by the trial Judge and
restricted it to the period already undergone without
interfering with the quantum of fine. The present appeal
has been preferred by Raja assailing his conviction and
sentence.
6. We have heard Mr. M.M. Kashyap, learned counsel for
the appellant and Mr. Vikas Sharma, learned counsel for the
State.
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7. As the factual matrix would show, the case of the
prosecution entirely hinges on circumstantial evidence.
When a case rests on circumstantial evidence, the Court
has to be satisfied that the circumstances from which an
inference of guilt is sought to be drawn, must be cogently
and firmly established; those circumstances should be of a
definite tendency unerringly pointing towards guilt of the
accused; the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and the
circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. [See
Padala Veera Reddy v. State of A.P.1]
8. In Balwinder Singh v. State of Punjab2, it has been
laid down that:
“..… the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be
1 1989 Supp (2) SCC 706 2 1995 Supp (4 SCC 259
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conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”
9. From the aforesaid it is clear as day that the Court is
required to evaluate the circumstantial evidence to see that
the chain of events have been established clearly and
completely to rule out any reasonable likelihood of the
innocence of the accused. Needless to say whether the
chain is complete or not would depend on the facts of each
case emanating from the evidence and no universal
yardstick should ever be attempted [See Ujjagar Singh v.
State of Punjab3].
10. In the instant case, the circumstances that have been
established by the prosecution are that the deceased had
accompanied the accused–appellant, being called by him,
from his house in the early part of the evening on the date
of occurrence. The mother of the deceased, Kalawati, PW-
3 (2007) 13 SCC 90
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11, has deposed in that regard. Thereafter, from the
material brought on record, it is clearly revealed that the
appellant was seen at the tea stall with the deceased. The
said fact has been deposed by Mahender, PW-10. Thus,
from the aforesaid evidence, two facts are established,
namely, the accused and the deceased had left the house
of the deceased and were seen taking tea together at the
tea stall. It is submitted by the learned counsel for the
appellant that the last seen theory as advanced by the
prosecution is not acceptable inasmuch as the owner of the
tea stall has not been examined. When the testimony of
the aforesaid two witnesses deserve acceptance and
receive corroboration from the other evidence on the
record, no adverse inference should be drawn because of
non-examination of the tea stall owner, who, as has been
submitted by the learned counsel for the appellant, is a
material witness. It is well settled in law that non-
examination of a material witness is not a mathematical
formula for discarding the weight of the testimony available
on record, if the same is natural, trustworthy and
convincing [See State of H.P. v. Gian Chand4]. That
4 (2001) 6 SCC 71
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apart, he was not such a witness who alone was the
competent witness to depose about a fact and his non-
examination would really destroy the version of the
prosecution.
11. Another reason for acceptance of the last seen theory
is that the brother of the deceased, Subhash, PW-8, has
testified that he had enquired from the accused as regards
the whereabouts of the deceased, for the deceased had
accompanied the accused and at that juncture the accused
had replied that at the tea stall a Sikh boy came and the
deceased went with him. As per the prosecution case, the
deceased and the accused are co-villagers. In his
statement recorded under Section 313 CrPC, the accused-
appellant totally denied to have accompanied the
deceased. Learned trial Judge and the High Court have
placed reliance on the evidence of the mother, Kalawati,
PW-11, the brother, Subhash, PW-8 and Mahender, PW-10.
The cumulative reading and apposite appreciation of the
said evidence proves beyond reasonable doubt that the
deceased was last seen with the accused.
12. Another circumstance that has been proven is about
the recovery of knife, blood-stained clothes and the ashes
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of the burnt blanket. The seizure witnesses Sukha, PW-7
and Nanak, PW-9 have proven the seizure. It is submitted
by the learned counsel for the appellant that police had
recorded the confessional statement of the accused-
appellant at the police custody and thereafter, as alleged,
had recovered certain things which really do not render any
assistance to the prosecution, for the confession recorded
before the police officer is inadmissible. That apart, the
accused had advanced the plea that the articles and the
weapon were planted by the investigating agency. To
appreciate the said submission in proper perspective, we
may profitably reproduce a passage from State of U.P. v.
Deoman Upadhyaya5:
“The expression, ‘accused of any offence’ in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the
5 AIR 1960 SC 1125
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form of a proviso to Section 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered.”
13. In State of Maharashtra v. Damu6, while dealing
with the fundamental facet of Section 27 of the Evidence
Act, the Court observed that the basic idea embedded in
the said provision is the doctrine of confession by
subsequent events, which is founded on the principle that if
any fact is discovered in a search made on the strength of
any information obtained from a prisoner, such a discovery
is a guarantee that the information supplied by the prisoner
is true. It further stated that the information might be
confessional or non-inculpatory in nature, but if it results in
discovery of a fact it becomes a reliable information and,
therefore, the legislature permitted such information to be
used as evidence by restricting the admissible portion to
the minimum.
6 (2000) 6 SCC 269
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14. Thus, if an accused person gives a statement that
relates to the discovery of a fact in consequence of
information received from him is admissible. The rest part
of the statement has to be treated as inadmissible. In view
of the same, the recovery made at the instance of the
accused-appellant has been rightly accepted by the trial
Court as well as by the High Court, and we perceive no flaw
in it.
15. Another circumstance which has been taken note of
by the High Court is that the blood-stained clothes and the
weapon, the knife, were sent to the Forensic Science
Laboratory. The report obtained from the Laboratory
clearly shows that blood stains were found on the clothes
and the knife. True it is, there has been no matching of the
blood group. However, that would not make a difference in
the facts of the present case. The accused has not offered
any explanation how the human blood was found on the
clothes and the knife. In this regard, a passage from John
Pandian v. State7 is worth reproducing:
“The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the
7 (2010) 14 SCC 129
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forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case.”
In view of the aforesaid, there is no substantial reason
not to accept the recovery of the weapon used in the crime.
It is also apt to note here that Dr. N.K. Mittal, PW-1, has
clearly opined that the injuries on the person of the
deceased could be caused by the knife and the said opinion
has gone unrebutted.
16. Another circumstance which needs to be noted is that
Sukha, PW-7, a taxi driver, has deposed that on 18.1.2003
about 11.00 p.m. while he was going to Fatehabad for
taking passengers, he saw a bullock cart parked in front of
the house of the accused and certain persons were tying a
bundle in a “palli”. On query being made by him, the
accused persons told him that they are carrying manure to
the fields. Though, this witness has given an exaggerated
version and stated differently about the time of arrest, yet
his testimony to the effect that he had seen the accused
with a bundle in “palli” at a particular place cannot be
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disbelieved. The maxim “falsus in uno, falsus in omnibus”,
is not applicable in India. In Krishna Mochi v. State of
Bihar8, it has been held thus:
“The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance … nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.”
17. In Yogendera v. State of Rajasthan9, it has been
ruled that the Court must assess the extent to which the
deposition of a witness can be relied upon. The court must
make every attempt to separate falsehoods from the truth,
and it must only be in exceptional circumstances, when it is
entirely impossible to separate the grain from the chaff, for
the same are so inextricably intertwined, that the entire
evidence of such a witness must be discarded. Thus
viewed, the version of PW-7 to the extent that has been
stated hereinabove is totally acceptable and credible.
18. In a case based on circumstantial evidence, motive
assumes great significance as its existence is an
8 (2002) 6 SCC 81 9 (2013) 12 SCC 399
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enlightening factor in a process of presumptive reasoning
[See Kundula Bala Subrahmanyam and Anr. v. State
of Andhra Pradesh10]. In the case at hand, it had come in
the evidence that the accused-appellant was suspicious of
the illicit relationship between the deceased and his wife.
The accused has taken the plea that he was never married.
It is noteworthy that the materials brought on record go a
long way to show that after the death of his brother he had
entered into the wedlock with his sister-in-law as per the
tradition of the community, that is, ‘Kareva’ marriage. The
said facet of evidence has really not been assailed or
shaken. Thus, it has been established that there was
suspicion by the accused that the deceased was having
relationship with his brother’s wife and that had aroused his
anger. The said motive further strengthens the case of the
prosecution.
19. In view of the aforesaid analysis, we are of the
considered opinion that the appeal preferred by the
appellant is totally devoid of merit and is accordingly
dismissed.
10 (1993) 2 SCC 684
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.............................J. (Dipak Misra)
..........................., J. (N.V. Ramana)
New Delhi April 10, 2015
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