Rahul Vs. State of Haryana
[Criminal Appeal No. 262 of 2021 arising out of S.L.P. (Crl.) No. 3449 of 2019]
R. Subhash Reddy, J.
1. Leave granted.
2. This appeal has been preferred, aggrieved by the judgment and order dated 06th December 2016 passed by the High Court of Punjab & Haryana at Chandigarh, confirming the conviction recorded and sentence imposed, for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (IPC) and under Section 25(1B)(a) of the Arms Act, 1959, by the learned Sessions Judge, Bhiwani.
3. On 07.08.2010 a telephonic message was received in Police Station, Charkhi Dadri from one Jaswant Singh, resident of Village Kaliyana, to the effect that in the pit of panchayat land adjoining KaliyanaJhojhu road towards hill, dead body of a young boy was lying. After receiving the said information, the Inspector of Police/SHO of the Police Station along with other police officials reached the spot for investigation. After reaching the place of occurrence, they found a dead body of an unknown person with fire arm injury marks.
At the place of occurrence, two empties of brass having marka of 8 MM PF on their bottom were recovered along with a pair of chappals. Bloodstained earth was collected from the spot and converted into sealed parcels. The complainant Jaswant Singh who was examined, during the trial, as PW-6 was present and his statement was recorded. The inspecting officers have found marks of dragging of the deceased on the kacha road which was going towards hill; there were also marks of tyres of a small vehicle.
On checking of the dead body by the police, they have noticed two firearm shots on both sides of waist and there was a deep wound on the back of right ear and left jaw of the mouth was cut. The dead body was smeared with blood and they suspected, some unknown persons have brought the deceased in a vehicle and committed murder by causing fire arm injuries. On the complaint of Jaswant Singh (PW-6) a crime was registered in FIR No.297 on 07.08.2010 for the offence punishable under Section 302 read with Section 34, IPC and Section 25 of the Arms Act.
4. After registering the crime, investigation was taken up. The post mortem of the dead body was conducted in PGIMS Rohtak. For identification of dead body, news item was got published in the newspaper along with the photograph of the deceased. During the investigation of the case, on 14.08.2010, the mother of the deceased Kasturi Devi (PW-12) and the brother of the deceased, by name, Anil Kumar (PW-3) approached the police on the basis of news publication and identified the deceased as Jitender, who was son of PW-12 and brother of PW-3 and resident of Kanhra.
After recording the statements of the aforesaid witnesses, investigation was proceeded on the basis of call details of the deceased and statements of the mother and brother of the deceased. After collecting necessary evidence, the appellant herein, i.e., Rahul, a resident of Mirpur was arrested on 21.08.2010. It is stated that during the interrogation, the accused Rahul made disclosure statement that about six months earlier he was married with Priyanka, daughter of Ramesh, caste Jat, resident of village Chandwas.
He had suspicion on the character of his wife and he is stated to have informed his fatherinlaw Ramesh Kumar and brotherinlaw Ashok Kumar, that Priyanka has illicit relation with Jitender (deceased), resident of village Kanhra. Therefore, they have decided to eliminate Jitender. As per the case of the prosecution, on 06.08.2010 at about 06:00 p.m. as per their plan, appellant (Rahul) called Jitender, his fatherinlaw Ramesh and brotherinlaw Ashok to Badhra. He was having a Maruti car bearing registration no.DL9CJ5165 and thereafter in Badhra, Jitender had two bottles of beer and he came under influence of liquor.
Further, the case of the prosecution is that all of them have taken the deceased from Jhojhu to Kaliyana hill where Jitender also got down from the car and they have fired on the deceased and thrown him in the pit. The Maruti car bearing registration no.DL9CJ5165 and the mobile phone of the accused Rahul were taken into possession vide recovery memo. Further it is stated that on 23.08.2010, the appellantaccused pointed the place of occurrence and on 24.08.2010, in pursuance of his disclosure statement, a country made pistol .315 bore and two live cartridges were seized from the house of his Bua, resident of Old Housing Board Colony, Bhiwani.
It is alleged that during the investigation the other accused, namely, Ramesh also suffered disclosure statement and disclosed that the SIM of phone which he was using, was in the name of his brotherinlaw, and he was talking to his soninlaw (Rahul) by using the said SIM. As the other accused Ashok Kumar was absconding, nonbailable warrants were pending execution and proceedings under Sections 82 and 83 of Cr.PC were also issued.
5. After completion of the investigation, final report under Section 173 of Cr.PC was filed against the appellant herein and Ramesh for their trial and the case was committed to the Court of Sessions. On the aforesaid allegations, the appellant (Rahul) and other accused, by name, Ramesh were chargesheeted under Section 302 read with Section 34, IPC; and the appellant herein was also chargesheeted for offence under Section 25(1B)(a) of the Arms Act, 1959. Accused pleaded not guilty and claimed trial.
6. To prove the charges framed against the appellant and another, prosecution has examined 20 witnesses, namely, PW-1, Krishan Lal; PW-2, Manjeet; PW-3, Anil, brother of deceased Jitender alias Jittu; PW-4, Ravinder Pal, Senior Scientific Offficer; PW-5 Dr. Hitesh Chawla; PW-6 Jaswant Singh (complainant); PW-7 Dharmender Singh, draftsman; PW-8 Inderjeet, photographer; PW-9 HC Ravinder Kumar; PW-10 HC Arvind Kumar; PW-11 ASI Surat Singh; PW-12 Kasturi, mother of deceased Jitender; PW-13 constable Jasveer; PW-14 constable Manoj Kumar; PW-15 Krishan Singh, Reader to District Magistrate; PW-16 Sarif Singh; Inspector(investigating officer); PW-17 ASI Amir Singh; PW-18 EHC Rajbir Singh; PW-19 constable Radhey Shyam; and PW-20 Vijender Singh, Deputy Superintendent of Police (Investigating Officer). In defence, on behalf of the accused, DW-1 Rani, widow of Jagdish was examined.
7. After completion of the trial, the Sessions Judge, Bhiwani, by recording a finding that the prosecution has proved the charges, vide judgment dated 17.10.2012, held that both the accused Rahul (appellant herein) and Ramesh were guilty for offence under Section 302 read with Section 34, IPC and appellant Rahul is also found guilty for offence under Section 25 of the Arms Act and convicted them accordingly.
By order dated 20.10.2012 both the accused were sentenced to undergo life imprisonment and to pay a fine of Rs.20,000/each, in default of payment of fine, to undergo rigorous imprisonment for a further period of one year each under Section 302 read with Section 34, IPC and further sentenced appellant Rahul to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/for offence under Section 25 of the Arms Act, 1959. Both the sentences were ordered to run concurrently.
8. Aggrieved by the conviction recorded and sentence imposed by the learned Sessions Judge, Bhiwani, the appellant, along with another accused, namely, Ramesh approached the High Court of Punjab & Haryana at Chandigarh by way of Criminal Appeal No.D1060 of 2012. The High Court, by judgment and order dated 06.12.2016, while confirming the conviction recorded and sentence imposed on the appellant, has allowed the appeal partly by acquitting the other accused, namely, Ramesh. The High Court has held that prosecution has failed to prove its case against Ramesh (appellant before High Court) beyond reasonable doubt.
9. We have heard Sri Tathagat Harsh Vardhan, learned counsel appearing for the appellant and Sri Dinesh Chander Yadav, learned Additional Advocate General for the State of Haryana.
10. Learned counsel for the appellant has made the following submissions :
- The incident in question was a blind murder and the conviction is solely based on the circumstantial evidence.
- PW-3 (Anil) and PW-12 (Kasturi) who are brother and mother respectively of the deceased, are interested witnesses and the conviction is based on the testimony of these interested witnesses, to prove that deceased was last seen with the appellant.
- PW-s3 and 12 have made improvements in their statements and there are material contradictions in their depositions. Moreover, PW-3 was declared hostile by the prosecution.
- Both these star witnesses have tried to introduce new theory imputing motive for the first time by stating that panchayat was held by Ramesh and Ashok against Jittu (deceased) for latter calling Priyanka, daughter of Ramesh and sister of Ashok.
- The conviction is based on the alleged recovery of weapon at the instance of the accused - appellant herein and said weapon was used in commission of offence, though the same was not proved by the prosecution.
- In absence of any other independent evidence, courts below have committed error in accepting such evidence which is with material contradictions. It is submitted that PW-3 has himself stated in the chief examination that he did not have any suspicion on anyone, and there was no enmity or grudge with the accused persons. Further the conduct of the aforesaid two witnesses is not trustworthy and is unnatural. Thus, last seen theory is to be disbelieved and discarded. It is submitted that any amount of suspicion, cannot substitute proof and as such it was the duty of the courts to take utmost precaution before ordering conviction on the basis of circumstantial evidence.
- Recovery alleged to have been made at the behest of the appellant is false and unreliable, as much as, no independent witness was called to substantiate the socalled recovery of . 315 bore country made pistol and two live cartridges.
- Lastly stating that the appellant has been falsely implicated in the instant case and is undergoing incarceration from last about 11 years, it is submitted that it is a fit case to allow the appeal by acquitting the appellant for the charges levelled against him.
To support his contention that the suspicion, howsoever grave, cannot replace proof, learned counsel relied on the judgment of this Court in the case of State of Goa etc. v. Sanjay Thakran & Anr. Etc.1 wherein this Court has laid down the tests to be applied, when the case rests upon circumstantial evidence. Relying on the aforesaid judgment, it is submitted that the tests stated in the above said judgment are not satisfied by the prosecution, to bring home the guilt of the accused.
Further, in support of the argument that the 'circumstance of last seen together' does not by itself necessarily lead to inference that it was the accused who committed crime and there must be something more to establish connection between accused and the crime, that points to guilt of accused and none else, he has placed reliance on a judgment of this Court in the case of Kanhaiya Lal v. State of Rajasthan2. Further, submitting that to prove the guilt of the accused based on circumstantial evidence, the evidence and circumstances must form a chain of events, placed reliance on a judgment of this Court in the case of Wakkar & Anr. v. State of Uttar Pradesh3.
11. Learned Additional Advocate General appearing for the State, by drawing our attention to the statements of various witnesses which are on record, has submitted that apart from the evidence of PW-3 and PW-12 several other witnesses were examined on behalf of the prosecution to prove the guilt of the appellant. It is submitted that if the entirety of evidence is taken into consideration, it makes it clear that the appellant alone has committed the offence. It is further submitted that the motive was also established, namely, that deceased had developed relation with Priyanka who is the wife of the appellant.
It is further submitted that the forensic report also supports the case of the prosecution to show that the weapon, recovered at the instance of the appellant from the residence of his Bua, was used for committing the offence. Lastly, it is submitted that merely because PW-3 and PW-12 who are brother and mother respectively of the deceased were examined to prove the case of the prosecution, same is no ground to discard their testimony, if the same is corroborated along with other oral and documentary evidence on record.
It is submitted that having regard to facts and circumstances of the case, the prosecution has clearly proved the chain of events and if the same is considered along with the post mortem report and the recoveries effected at the instance of the appellant, it leads to an irresistible conclusion that the appellant has committed the offence. Further, it is submitted that the trial court as well as the High Court have elaborately considered the evidence on record and in view of the concurrent findings, so far as the appellant is concerned, there are no grounds to interfere with the same.
12. We have considered the submissions made by the learned counsel on both sides and perused the material on record.
13. Though the appellant (Rahul) and another accused, namely, Ramesh were tried together and were convicted by the trial court but on appeal the High Court has allowed the appeal qua Ramesh and acquitted him of the charges by recording a finding that prosecution has failed to prove the guilt of the accused Ramesh beyond reasonable doubt. At the same time, the High Court has confirmed the conviction recorded and sentence imposed, by the trial court, on the appellant.
As there is no appeal by the State challenging the acquittal recorded by the High Court, as such, we are only required to examine whether the circumstantial evidence on which basis the conviction of appellant (Rahul) is recorded, establishes the guilt of the accused or not. Before we deal with the contentions advanced, we need to notice the relevant evidence which is led by the prosecution to prove the case against the accused appellant (Rahul).
14. It is the case of the prosecution that appellant Rahul has married Priyanka, who is the daughter of Ramesh and sister of Ashok. It is the case of the prosecution that because of the relationship of the deceased Jitender @ Jittu with Priyanka who is the wife of the appellant, the appellant and other accused have decided to eliminate the deceased.
It is true that the entire case rests upon the circumstantial evidence. In ocular evidence there is a deposition of PW-3 and PW-12 who are brother and mother respectively of the deceased. Merely because two of the witnesses are related to the deceased, that by itself, is no ground to discard their testimony. If their testimony is corroborated by other evidence on record, same can be relied on to establish the guilt of the accused.
15. In this case PW-s1 and 2 were declared hostile and PW-3 also, at some stage, was declared hostile. He was crossexamined by the counsel for the prosecution. In his chief examination, PW-3 (Anil), brother of the deceased (Jittu) has deposed that, Jitender alias Jittu was his younger brother. On 06.08.2010, Ramesh from village Chandwas had come to his house and he told Jittu in his presence at about 02:00 or 02:30 p.m. that appellant (Rahul) would come in the evening and he had a programme of going to Haridwar in order to bring 'kawar'. Thereafter in the evening at about 05:00 p.m., he, his mother and brother Jittu went to Badhra in a bus.
They purchased some articles and after some time Jittu separated from them and after two hours, Rahul (appellant), Jittu and Ashok came in a Maruti car 800 CC No.DL9CJ5165 and told them that they were going to Haridwar and would come back in 34 days. Jittu had gone with Rahul and Ashok. After 34 days he tried to contact his brother on his mobile, but both the mobiles were switched off. Further, he has deposed that on 14.08.2010 his sister had read the newspaper and told him the description of cloths and slippers which were mentioned in the newspaper.
Thereafter, he also read the newspaper, as such they went to Police Station and saw the cloths of Jittu and the photographs of dead body of Jittu. They identified the cloths and photographs of Jittu. At that time he did not have any suspicion on anyone. After he has deposed to some extent by way of chief examination, he was declared hostile at the request of the Public Prosecutor and he was further crossexamined by the Public Prosecutor. In the crossexamination, he has admitted that he stated to police that his brother had made a telephone call to Priyanka sister of Ashok Kumar and on that, Ashok and Ramesh came to their house and protested, and that might be the reason for murdering his brother Jittu.
Senior Scientific Officer - Ravinder Pal Singh was examined as PW-4 and in his deposition, he stated that he along with his assistant inspected the spot and prepared his report under Ex.PE and he also prepared the rough sketch Ex.PF. Doctor who had conducted post mortem examination, namely, Dr. Hitesh Chawla, was examined as PW-5. In his deposition he has stated that he along with Dr. Jitender Jakhar conducted post mortem examination on the body of a male individual on 09.08.2010 and they have noticed following injuries:
"The length of the body was 180 cm. The body was wearing:
(1) A multicoloured (orange, white, black check shirt) full sleeved, with imprint over its inner back as shown in postmortem report. The shirt was blood stained and showing holes corresponding with underlying injuries.
(2) A white baniyan with trademark as Rupa's Joy 90 cm. The baniyan was blood stained.
(3) A cream pant with hook and zip tied in situ. The pant was blood stained and having a trademark over inner side of zip as shown in post mortem report.
(4) Blue and grey stripes underwear with elastic waist having imprint Jockey over its elastic.
(5) Red thread around neck having a yellow metallic locket of "Shivji" in it.
The body was at room temperature. It was emitting foul smell. Clusters of eggs and maggots of size 0.30.5 cm were present all over the body at places. Scalp hairs were black, 68 cm long, peeled off with moderate traction. The mouth, lips and tongue was deformed. The eyes were closed. Moustaches were 0.30.5 cm long black, beard was shaven.
The mouth was open with tip of tongue protruding out. Facial features were distorted. Rigor mortis was passed off; marbled appearance of skin was present at places. Epidermis was peeled off at places. The chest was tense. Abdomen was distended. Greenish discoloration was seen over anterior abdominal wall. Pubic hairs were 23 cm long, black coloured and curly. Penis and scrotum were distended.
All ends of long bones were fused including medial end of clavicle. Cranial sutures namely sagittal, coronal & lambdoid were not obliterated on the inner table as well as outer table of skull. Body of sternum was fused; xiphoid and manubrium were not fused. All third molars were erupted and showing mild to moderate attrition. The following injuries were over the body:
(1) A firearm entry wound of size 2.5 x 2.0 cm over right anterior chest wall, 3 cm medial to right nipple, 5 cm away from midline and 140 cm above right heel. The margins of wound were irregular, inverted and abrasion collar for 35 mm was present all around the entry wound. The wound was directed laterally downwards, backwards from left to right, piercing the 3rd and 4th ribs anteriorly, pleura and underneath lungs to emerge out as wound no.2.
(2) A firearm exit wound of size 1 x 0.5 cm over upper back right side, 10 cm away from midline and 15 cm below shoulder blade. The margins of wound were everted and irregular.
(3) A firearm entry wound of size 2 x 2 cm over left anterior chest wall, 4 cm medial to left nipple and 5 cm away from midline and 139 cm above left heel. The margins of wound were irregular, inverted and abrasion collar for 35 mm was present all around the entry wound. The wound was directed backwards, downwards, from left to right, piercing the 3rd intercostal space, underneath pleura, lung, the pericardium, base of heart and trachea. The bullet was found embedded just beneath the skin, in muscular space over right upper back along the inferior border of scapula, 12 cm away from midline and 18 cm below shoulder blade. The length of bullet was 3.0 cm. The whole of track was ecchymosed in its entire length.
(4) A firearm entry wound of size 3.0 x 2.0 cm over left side of face, lateral to left angle of mouth and 155 cm above left heel. The margins of wound were irregular, inverted. The medial end of wound was reaching up to lateral angle of mouth. The would was directed medially backwards and upwards from left to right; the left ramus of mandible, left maxilla and right maxilla was fractured into multiple pieces with the fractured ends showing infiltration of blood; to emerge out as wound no.5.
(5) A firearm exit would of size 2.5 x 2.0 cm situated 5 cm behind right ear. The margins of wound were everted and irregular.
The topographic representations of the injuries described was made and attached with post mortem report.
The following findings were observed on systemic examination :
Skull, vertebrae and internal organs of generation were healthy. The membranes of brain, hyoid and peritoneum were intact. Brain was thickish, grayish pasty. The large vessels and urinary bladder were empty. Stomach contained app. 30 cc. of mucoid material and its mucosa was pale. Small intestine contained chime. Large intestine contained fecal matter and gases. The liver, spleen and kidney were pale and softened."
The doctor (PW-5) has deposed that the cause of death was because of firearm injuries and they were ante mortem in nature. Probable time that elapsed between injuries and death was immediate and that of between death and post mortem examination was 13 days. Further, through him, it is proved that the fired bullet Ex.P1 was the same which was taken out from the body of the deceased. The complainant(Jaswant Singh) who has informed to the police at first instance, was examined as PW-6. He has deposed, reiterating the information which he has given to police.
The draftsman who prepared the scaled site plan Ex.PT was examined as PW-7 and to prove the photographs Ex.PW-8/1 to Ex.PW-8/8, PW-8 Inderjit was examined. PW-10 Head Constable Arvind Kumar, who was on patrolling duty along with other police officials, has inspected the car of the appellant on 21.08.2010 and he was interrogated by the investigating officer to whom disclosure statement was made under Ex.PV. Further, PW-10 has also pointed out that the appellant has disowned the earlier statement and stated that he concealed the pistol and cartridges in House No.160, Housing Board, Bhiwani in the house of his Bua.
That disclosure statement was recorded as Ex.PX. The mother of the deceased PW-12 (Kasturi) in her deposition while stating that Jittu was taken by the appellant (Rahul) and Ashok from the bus stop stating that they were going to Haridwar to bring 'kawar'. She has further stated that few days prior to occurrence, a panchayat was convened by Ramesh and Ashok on the point that her son Jittu was making telephone calls to daughter of Ramesh and only due to this the accused have killed her son.
PW-16 - Investigating Officer (Sarif Singh) in his deposition has clearly stated that he lifted two empties from the spot and they were taken into possession and sealed vide memo Ex.PL. He also stated that he lifted bloodstained earth from the spot which was sealed in parcel vide memo Ex.PK. Further, PW-17 - ASI Amir Singh in his deposition has stated that on 25.08.2010 he was posted as I.O. at Police Station Charkhi Dadri and after arresting Rahul he has interrogated him and he made his disclosure statement Ex.PLL. Vijender Singh, Dy. Superintendent of Police/SHO, P.S. Sadar, Dadri was examined as PW-20 on 31.08.2010.
16. In defence, accused examined DW-1 - Rani, widow of Jagdish, resident of House No.160, Old Housing Board Colony, Bhiwani. In her deposition, she has stated that appellantaccused is her real nephew. Though she has stated in her crossexamination that appellant (Rahul) never resided with her and he was residing in village Mirpur, Distt. Meerut, has clearly admitted that police officials had come to her residence. Though she was examined to disprove the recovery of pistol from her house at the instance of the appellant, but at the same time she has admitted in the crossexamination that police officials had come to her house about a year and half earlier to her statement.
17. Though it is mainly contended by the learned counsel for the appellant that the motive attributed is an improved version in the statements made by PW-3 and PW-12, but in a case of this nature it is to be noticed that deceased was known to the appellant (Rahul) and Ramesh. Merely because PW-3 has deposed at first instance that there was no suspicion or any animosity between the deceased and the appellant but at the same time he has clearly stated that on 06.08.2010, Ramesh, the other accused had come to village Chandwas and in his presence Ramesh told to Jittu at about 2:00 or 2:30 p.m. that Rahul would come in the evening and they have planned to go to Haridwar in order to bring 'kawar'.
Further, it is also clearly deposed that the same day evening PW-3 - Anil went along with his brother Jittu and his mother Kasturi - PW-12 to Badhra in a bus and they purchased some articles, thereafter Jittu was separated and after two hours Rahul, Jittu and Ashok came in a Maruti car and stated that they were going to Haridwar and would come back. Initially no suspicion was indicated but at the same time when PW-3 was declared hostile and in crossexamination by the Public Prosecutor he has admitted that he stated to police, his brother Jittu had made a telephone call to Priyanka, sister of Ashok Kumar and on that Ashok who is the brother of Priyanka and Ramesh, father of Priyanka, came to their house and protested.
He also indicated, that might be the reason for murdering his brother Jittu by the appellant and other accused. PW-12 who is the mother of the deceased has, in clear terms, stated that few days prior to the occurrence, a panchayat was convened by Ramesh and Ashok on the point that her son Jittu was making telephone calls to daughter of Ramesh and due to this they killed her son. Although it is the contention of the counsel for the appellant that as PW-3 and PW-12 are family members/close relations of the deceased, as such, their testimony is to be discarded, but the same cannot be accepted.
Merely because PW-3 and PW-12 are related, by itself is no ground, to reject their testimony. Further, a close relative who is a natural witness cannot be regarded as an interested witness. It is fairly well settled proposition that even the evidence of interested person can also be considered provided such evidence is corroborated by other evidence on record. At this stage, it is apposite to refer to a judgment of this Court in the case of Kanhaiya Lal & Ors. etc. v. State of Rajasthan4. Paragraphs 24 and 25 of the said judgment read as under :
"24. In Hari Obula Reddy v. State of A.P. (1981) 3 SCC 675 a threeJudge Bench has opined that it cannot be laid down as "an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." (SCC pp.68384, para 13)
25. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614 this Court has stated (SCC p.621, para 15) that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason."
While rejecting the plea that the witnesses were in close relation to the deceased, in the case of Ram Chander & Ors. v. State of Haryana5 this Court has held as under :
"33. The submission of the learned counsel for the appellants that since Guddi (PW- 9) was in close relation with the deceased persons, she should not be believed for want of evidence of any independent witness, deserves to be rejected in the light of the law laid down by this Court in Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 and Harbans Kaur v. State of Haryana (2005) 9 SCC 195, which lays down the following proposition (Harbans Kaur case, SCC p.198, para 7)
"7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused."."
18. It is clear from the deposition of PW-5 (doctor) and the post mortem report that, injuries were caused over the body of the deceased with a firearm and the bullet was found embedded in the body. It is also clearly stated that death was due to firearm injuries and was ante mortem in nature. He has clearly stated that the fired bullet which was marked as Ex.P1 was the same which was taken out from the body of the deceased.
19. If we closely scrutinize the oral evidence on record coupled with the documentary evidence, we are of the considered view that there is a complete chain of evidence which would lead to irresistible conclusion that the appellantaccused has committed the offence and none else. Even the recoveries are sufficiently proved with the cogent evidence. In the disclosure statement the appellantaccused has stated that he has kept the weapon with his Bua at House No.160, Old Housing Board Colony, Bhiwani.
Though she was examined on behalf of the accused to disprove the recovery, at the same time, she has admitted in the crossexamination that police have visited her place a year and a half earlier to her statement. If this part of evidence is examined, coupled with the other documentary evidence on seizure, there is no reason to disbelieve the recovery of weapon, from the residence of appellant's Bua, i.e., House No.160, Old Housing Board Colony, Bhiwani. All the recoveries have been proved by examining witnesses for such recoveries.
Only in view of the disclosure statement Ex.PX recoveries of pistol .315 bore and cartridges were made from the house of his Bua at Bhiwani vide recovery memo Ex.PY on 24.08.2010. Further, as per the FSL report Ex.PXX, the country made pistol .315 bore used by the accusedappellant for committing the murder of the deceased was found in working order and both the fired cartridges recovered from the spot and fired bullet taken out from the body of the deceased, are found fired from the country made pistol recovered at the instance of accused (Rahul). Further, the injuries on the person of deceased have been proved by doctor who was examined as PW-5.
The material evidence on record produced by the prosecution has been further corroborated by call details of mobile phones of Ramesh, Ashok Kumar and Jitender and such call details have been proved by the statement of PW-14. Further, it is also well settled that if other evidence on record clearly establishes that the deceased was murdered by the appellant by using firearm, the factum of motive loses its importance, more so, in this case the motive has been established by leading cogent evidence to show that only because the deceased had developed relationship with appellant's wife Priyanka, has decided to eliminate the deceased.
20. From the evidence on record, we are of the considered view that prosecution has proved the guilt of the accused beyond reasonable doubt by leading cogent evidence. Further, the motive is also proved by the prosecution.
21. In the case of Sanjay Thakran1 relied on by the learned counsel for the appellant, this Court has held that certain tests are to be fulfilled by the prosecution by leading cogent evidence, when the case rests upon circumstantial evidence. Further, in the case of Wakkar3 this Court has held that mere recovery itself cannot be the basis for conviction and recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances.
However, having regard to evidence on record in this case on hand, we are clearly of the view that the prosecution has satisfied all the tests mentioned in the case of Sanjay Thakran1 to bring home the guilt of the accused, by resting upon the circumstantial evidence. If the factum of recoveries is considered along with other evidence in entirety, it gives an irresistible conclusion that the appellant alone has committed offence by using the weapon, which is recovered from the house of DW-1 who is the Bua of the appellant.
Further, it is also to be noted that whether the guilt of the accused is proved or not based on the circumstantial evidence, each case has to be judged on the overall assessment of the evidence on record, as such we are of the view that the case law which is referred above, relied on by the learned counsel for the appellant, would not render any assistance to accept his plea that the appellant was falsely implicated.
22. The High Court, in the appeal filed by the appellant herein and another accused Ramesh, reappreciated the evidence on record and confirmed the conviction and sentence, so far as the appellant is concerned and acquitted the other appellant, i.e., Ramesh. Though it is contended by learned counsel appearing for the appellant, on same set of evidence while acquitting the other accused Ramesh there is no reason to confirm the conviction and sentence so far as the appellant herein is concerned.
In the impugned judgment, the High Court has recorded reasons for acquittal of the other appellant, i.e., Ramesh. PW-3 Anil, in his deposition has clearly stated that when he along with his mother and deceased Jittu, went to Badhra, after some time Jittu was separated from them, and came back along with Rahul (appellant) and Ashok (proclaimed offender) in a Maruti car. It is stated by PW-3, at that time Jitender @ Jittu stated that he was going to Haridwar and would come back in 34 days. Thereafter, Jitender @ Jittu went along with Rahul and Ashok.
To the same effect is the statement of PW-12 (Kasturi), mother of the deceased. From the said evidence on record, it stands established that the deceased Jitender @ Jittu was last seen in the company of Rahul (appellant) and Ashok (proclaimed offender) only. There was no mention that Ramesh (appellant before the High Court) also accompanied Jitender @ Jittu for going to Haridwar.
In the absence of any evidence on record to show that deceased was also seen with Ramesh lastly by PW-3 and PW-12, the High Court has come to the conclusion, that prosecution has not proved its case beyond reasonable doubt so far as the other appellant Ramesh is concerned. In view of such reasoning recorded by the High Court and evidence on record there are justifiable reasons for acquitting the other appellant, namely, Ramesh, while confirming the conviction so far as the appellant herein is concerned.
23. For the aforesaid reasons, as the appeal is devoid of merits, same is dismissed. However, as it is stated by learned counsel for the appellant that he has already served sentence for more than 11 years, it is needless to observe, that after completing 14 years of sentence it is open to the appellant to make representation for remission of the sentence. If such representation is made, the concerned authority/Jail Superintendent has to send the same to the Government which is to be considered in accordance with the policy of the State.
.........................J. [Ashok Bhushan]
.........................J. [R. Subhash Reddy]
March 03, 2021.
1 (2007) 3 SCC 755
2 (2014) 4 SCC 715
3 (2011) 3 SCC 306
4 (2013) 5 SCC 655
5 (2017) 2 SCC 321