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Friday, October 9, 2015

whether the matter can be remitted back to the High Court for re-appraisal of the evidence.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 holding that the same are proved. 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.

 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.
    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 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.
   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”).
   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 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.
   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.
   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 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.
   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.
   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 holding that no attempt was made by the appellant  to  establish
his plea. Hence, this appeal.
  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 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.
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 Court in exercise of its appellate jurisdiction.
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.
It was further contended by him that the plea of  the  appellant  that  PW-8
used ‘khukri’ 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.
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.
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 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.
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 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.
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 holding that the same are proved.
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

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