Crl.A. 641 of 2007 1

PART-II

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 641 of 2007

SURENDRA ..... APPELLANT

VERSUS

 STATE OF RAJASTHAN    .....   RESPONDENT

     WITH CRIMINAL APPEAL NO.  947 OF 2011

ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7324 OF 2010

O R D E R

  1. These appeals by way of special leave arises out  

of the following facts:

1.1 Mukesh P.W., son of the deceased Tara Chand and  

Phoola Devi returned home at 7:30p.m. on 24th December,  

2000 and found that his parents were lying dead in the  

verandah  of  the  house.   An  FIR  was,  accordingly,  

lodged against unknown persons but on investigation the  

police found out that four persons had been involved in  

the  murders,  they  being  Juglal,  the  brother  of  the  

deceased  Tara  Chand,  Satpal,  Son  in  Law  of  Juglal,

Crl.A. 641 of 2007 2

Surendra the appellant before us, and Rajesh, son of  

Surja Ram.  The trial court, by its judgment dated 11th  

January,  2002,  acquitted  Juglal  and  Rajesh  but  

convicted Satpal and Surendra under Section 302 on two  

counts  and  sentenced  them  to  imprisonment  for  life  

under Section 302/34 of the Indian Penal Code along  

with fine.  The trial court observed that there were no  

eye witnesses to the murders and that the prosecution  

story depended for proof exclusively on circumstantial  

evidence.  Five circumstances in all were, accordingly,  

determined;  they being: (i) death of Tara  Chand and  

Phoola  Devi  was  homicidal;  (ii)  motive  for  the  

commission of the murder; (iii) that the two appellants  

had been seen near the place of occurrence at about the  

time when the murders had been committed; (iv) recovery  

of  incriminating  articles  at  the  instance  of  the  

appellants; and (v) false explanation with regard to  

the alibi claimed by them.   

1.2 The  trial  court  found  that  the  death  of  Tara  

Chand and Phoola Devi was admittedly homicidal.  It was  

further found that the motive for the incident was also  

proved in the light of the evidence of PW 10 Mukesh who  

stated that his father and uncle Juglal, though real  

brothers,  had  very  strained  relations  over  trivial

Crl.A. 641 of 2007 3

matters and that their disputes had also gone to court  

and  that  just  a  few  days  before  the  incident  an  

unpleasant scene had been created at the time of the  

fixing of the electricity connection in the house of  

Juglal and an exchange of heated words had followed  

inter se the parties.  The trial court, accordingly,  

relying  on  the  evidence  of  Mukesh  and  three  other  

persons Hari Singh, Goverdhan and Dharam Pal who were  

involved with the parties held that the motive for the  

murder had also been proved on record.  The trial court  

then went to the last seen aspect that the appellants  

had been seen near the place of incident.  The trial  

court relied on the evidence of PW – 10 Mukesh, PW - 4  

Ram Chand and PW - 14, Bharat Singh who stated that  

they had seen the appellants along with the acquitted  

accused near the place of incident and that they had  

been identified by them.  Mukesh P.W. and Ram Chand  

further stated that they had identified Satpal in the  

torch  light  and  that  he  was  the  one  primarily  

responsible  for  the  murders.   The  trial  court  also  

found that the fourth circumstance with regard to the  

recoveries had been proved as the blood found on the  

recovered articles and the murdered weapons matched the  

blood group of the deceased Phoola Devi and Tara Chand.  

It  was  also  found  that  the  alibi  tendered  by  the

Crl.A. 641 of 2007 4

appellants  could  not  be  accepted  and  as  a  false  

explanation  had  been  tendered  this  again  was  a  

circumstance against them.   

1.3 The matter was thereafter taken in appeal.  The  

High  Court  has  affirmed  the  judgment  of  the  trial  

court.   Two  appeals  have  been  filed  against  the  

judgment of the High Court, one by  Surendra being  

Criminal Appeal No. 641 of 2007 and the other by Satpal  

being SLP(Crl) No.  7324 of 2010.  We grant leave in  

the above Special Leave Petition.

2. We have heard the learned Amicus Curiae for the  

appellants in both the appeals.  We find that the death  

of  the  deceased  was  undoubtedly  homicidal  and  the  

evidence of motive has also been proved on record. We  

have, however, serious doubt with regard to the last  

seen evidence and the recoveries  of the incriminating  

articles at the instance of the appellants.  In the  

background that the complainant party and the accused  

were very closely related the question of last seen  

would have been an extremely relevant circumstance.  In  

this connection, we have gone through the evidence of  

P.W.  4  Ram  Chand  and  it  makes  rather  interesting  

reading.  In the course of his examination in chief he

Crl.A. 641 of 2007 5

deposed that he had seen three persons in the light of  

a torch at the time when he was returning home but he  

could  recognise  only  one  i.e.  Satpal  (appellant  in  

Criminal  Appeal  No.947  of  2011).   In  the  cross  

examination, he admitted that he had met his cousin  

Mukesh  PW  and  the  Police  Inspector  at  about  9  or  

10:00a.m.  the next morning but he did not tell either  

of them at that stage that he had seen three persons  

coming out of the house of Tara Chand and Phoola Devi  

and that one of them was Satpal.  He also deposed that  

he  had  not  told  anybody  in  the  village  about  the  

identity of the three persons.  He admitted that he had  

told Mukesh with regard to the involvement of Satpal on  

the next day but even then Mukesh did not take him to  

the Police and it was after many days that one Hari  

Singh had done so and that he had made a statement to  

police thereafter.   

3. We also find that statement of PW 14 is equally  

uncertain.  He was also closely related to the accused  

and the deceased and had tried to show that he was a  

witness to the motive.  In his examination in chief he  

stated  that  he  had  seen  all  four  accused  sitting  

together outside the house of the deceased plotting out  

the murders but he has confronted with his statement

Crl.A. 641 of 2007 6

under Section 161 of the Cr.P.C. where he had not given  

the names of the assailants.  We also find that in the  

face of  this very uncertain evidence it would have  

been  incumbent  on  the  prosecution  to  have  put  the  

appellants before an identification parade.  This was  

not done and it is the admitted case that both the  

appellants were identified by the witnesses in Court  

for the first time during the course of the trial.  

Moreover,   Surendra,  appellant  was  a  resident  of  a  

village 70 kms away from the place of incident.  We  

are,  therefore,  of  the  opinion  that  the  last  seen  

inspires no confidence.   

4. We  now  come  to  the  recoveries  of  the  alleged  

murder weapons.  The appellants were arrested on the  

11th of January, 2001 and the recoveries were made 2/3  

days  thereafter  but  the  articles  were  sent  to  the  

laboratory on the 19th of March, 2001.  Even otherwise,  

we are of the opinion that as the evidence of last seen  

itself  is  unacceptable  the  recoveries  by  themselves  

would not make any difference.  Moreover even if  a  

false plea had been taken by the accused that by itself  

will not be enough to maintain their conviction and as  

the  prosecution  story  itself  suffers  from  glaring  

infirmities  the  infirmities  in  the  prosecution  case

Crl.A. 641 of 2007 7

cannot be filled up by a false plea of alibi.  We are  

conscious of the fact that this is a case of double  

murder but in the absence of any cogent evidence, we  

are unable to sustain the conviction.  We, accordingly,  

allow both the appeals and set aside the orders of the  

trial court as well as the High Court and direct the  

acquittal of the appellants.    

5. The  fee  of  the  learned  Amicus  is  fixed  at  

`7,000/- in each case.

6. We are told that Satpal is in custody.  He shall  

be  released  forthwith  if  not  required  in  connection  

with any other case.  Bail bonds of Surendra stand  

discharged.   

    .........................J      [HARJIT SINGH BEDI]

    ........................J      [CHANDRAMAULI KR. PRASAD]

NEW DELHI APRIL 13, 2011.

Crl.A. 641 of 2007 8

PART-I IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 641 of 2007

SURENDRA ..... APPELLANT

VERSUS

 STATE OF RAJASTHAN    .....   RESPONDENT

     WITH CRIMINAL APPEAL NO. 947 OF 2011

ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 7324 OF 2010

O R D E R

  Leave granted in SLP (Crl) No. 7324 of 2010. We have  heard the  learned counsel  for the  

parties.

Vide  our  separate  reasoned  order,  we  have  

allowed these appeals.  The appellant Satpal who is  

stated to be in custody shall be set at liberty  

forthwith if not required in connection with any  

other  case.   

The reasoned order shall be separately placed  

on record.

    .........................J      [HARJIT SINGH BEDI]

    ........................J      [CHANDRAMAULI KR. PRASAD]

Crl.A. 641 of 2007 9

NEW DELHI APRIL 13, 2011.