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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 221 of 2007
Vivek Kalra …… Appellant
Versus
State of Rajasthan …..
Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal against the judgment dated
25.10.2004 of the Rajasthan High Court, Jaipur Bench, in D.B.
Criminal Appeal No. 602 of 2002, maintaining the conviction
of the appellant under Section 302 of the Indian Penal Code,
1860, (for short ‘the IPC’) and the sentence of life
imprisonment and fine of Rs.1,000/- for the offence. Page 2
2. The facts very briefly are that on 08.06.1997 at about
8.30 a.m., one Lal Singh, who was running a tea shop at Bypass Road, Sedariya Tiraha, lodged an FIR with Police Station
Adarsh Nagar, Ajmer. In the FIR, he stated that at about
8.00 a.m. on 08.06.1997 one truck driver told him that
ahead of Shantinath Dharm Kanta, on the wall of pulia (small
bridge) one boy has been murdered and laid down and he
went there to see and found that one boy, aged about 13-14
years, was lying dead in a pool of blood and several persons
have gathered there. The police registered a case under
Section 302, IPC, and after investigation, the police filed a
charge-sheet against the appellant under Section 302, IPC.
3. At the trial, the prosecution did not examine any eyewitness to the murder of the deceased, but produced
circumstantial evidence to establish that the appellant had
committed the murder of the deceased and the trial court
convicted the appellant. On appeal, the High Court held in
the impugned judgment that after the death of his father the
appellant was living with his uncle, Gurcharan Kalra, and
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there was a fixed deposit in his name of Rs.80,000/-, but as
Gurcharan Kalra decided to utilize the fixed deposit only at
the time of marriage of the appellant, in order to take
revenge, the appellant purchased a dantli, took Ankit Kalra,
the son of Gurcharan Kalra, in a Scooter on the evening of
07.06.1997 to get a cassette, and committed the murder of
Ankit Kalra, left the scene of incident, reached Jaipur and got
himself admitted to a hospital there on 08.06.1997 for
treatment saying that he has met with an accident.
4. Learned counsel for the appellant submitted that the
finding of the High Court in the impugned judgment on the
motive of the appellant to commit the offence is based on
the evidence of Gurcharan Kalra, PW-11, about the fixed
deposit of Rs.80,000/- of the appellant, which the appellant
used to demand, but from this evidence the High Court could
not have come to the conclusion that the motive of the
appellant was to take revenge by killing the deceased. He
next submitted that PW-5 has admitted in his evidence that
the appellant had a good behaviour and had no bad habit
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and, therefore, it is quite probable that the appellant has not
committed the offence. He further submitted that PW-5 has
clearly said that when he made the enquiry from the
appellant about the deceased Ankit, he had told him that he
had been assaulted by Munna and his 2 to 4 associates and
caused injuries. He submitted that it is quite possible that
Munna may have killed the deceased and that the appellant
had not committed the murder. He further submitted that
the medical evidence of PW-22, Dr. B.K. Mathur, is clear that
the injury nos. 8 and 9 could not have been caused by dantli.
He submitted that since the prosecution case is that the
appellant used a dantli to cause the death of the deceased,
this medical evidence creates sufficient doubt on the
prosecution case.
5. Learned counsel appearing for the State, on the other
hand, supported the impugned judgment of the High Court
by relying on the following circumstances:
(i) PW-6 has stated that in the evening of
07.06.1997 when his parents had gone to the
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market and he was playing with the deceased,
the appellant came to their house and took the
deceased with him saying that they will come
back after getting a cassette, but thereafter the
deceased did not come back home.
(ii) PW-5, the father of PW-6, has corroborated the
evidence of PW-6 that at about 7.00 p.m. in the
evening of 07.06.1997, he and his wife had
gone to the market for shopping and when they
came back home at about 9.00 p.m., PW-6 told
them that the appellant took the deceased on a
scooter on the pretext of taking a cassette.
(iii) PW-28 has deposed that he used to work at V.K.
Video Movies, Plaza Road, and on 07.06.1997
between 8.00 p.m. and 8.30 p.m. a person by
the name of Vivek Kalra (the appellant) came to
their shop and took one cassette of picture
Judwaa and deposited Rs.100/- in advance and
his name has been entered in the register of the
shop, but the cassette was never received back.
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(iv) PW-7 is a witness to the panchnama of the dead
body of the deceased (Ext. P-6) which bears his
signatures at points A to B and he has said that
one dantli was lying on the ground near the
pulia which had a wooden handle and was taken
possession of by the police vide memo Ext. P7,
which bears his signatures at points A to B and
he has also stated that the dantli was bloodstained.
(v) PW-13 is a blacksmith and he has said before
the Court that the appellant had come to
purchase a dantli from his shop and he agreed
to pay a price of Rs.110/- out of which he paid
advance of Rs.10/- to him and on the next day
he came to the shop and took the sharp edged
dantli and he had paid the balance of Rs. 100/-
to him and the seized Dantli was produced
before PW-13 as Article-1 and PW-13 identified
Article-1 as the one that was purchased by the
appellant from him.
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(vi) PW-22, Dr. B.K. Mathur, has given his opinion
that he conducted the postmortem on the
deceased on 09.06.1997 at 9.30 a.m. and that
the injuries no. 1 to 7 could be caused by the
dantli.
Learned counsel for the State submitted that considering all
these circumstances established by the prosecution, there
can be no doubt that it is the appellant and the appellant
only who has committed the murder of the deceased.
6. We have considered the submissions of the learned
counsel for the parties and we agree with the learned
counsel for the appellant that from the evidence of PW-11
one could not hold that the appellant had committed the
murder of the deceased to take revenge on his uncle (PW-
11), who had not given him Rs.80,000/- kept in fixed deposit.
We are, however, of the opinion that where prosecution
relies on circumstantial evidence only, motive is a relevant
fact and can be taken into consideration under Section 8 of
the Indian Evidence Act, 1872 but where the chain of other
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circumstances establish beyond reasonable doubt that it is
the accused and accused alone who has committed the
offence and this is one such case the Court cannot hold that
in the absence of motive of the accused being established by
the prosecution, the accused cannot be held guilty of the
offence. In Ujjagar Singh v. State of Punjab [(2007) 13 SCC
90], this Court observed:
“It is true that in a case relating to
circumstantial evidence motive does assume
great importance but to say that the absence
of motive would dislodge the entire
prosecution story is perhaps giving this one
factor an importance which is not due and (to
use the cliché) the motive is in the mind of
the accused and can seldom be fathomed
with any degree of accuracy.”
7. In this case, the dead body of Ankit was found on the
morning of 08.06.1997 at around 8.00 a.m. and it is clear
from the evidence of PW-5 and PW-6 that the appellant had
taken Ankit in a scooter between 7.00 p.m. and 9.00 p.m. on
07.06.1997 on the pretext of getting a cassette. PW-28 has
confirmed that between 8.00 p.m. and 8.30 p.m. the
appellant had come to his cassette shop and taken the
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cassette of the film Judwaa. It is also clear from the
evidence of PW-5 and PW-6 that neither the appellant nor
the deceased returned on the evening of 07.06.1997. From
the evidence of PW-26 and PW-7, we also find that the bloodstained dantli has been recovered from the place of
occurrence and the blacksmith, PW-13, has confirmed that
he had sold that particular dantli to the appellant at a price
of Rs.110/-.
8. Dr. B.K. Mathur, PW-22, has said in his evidence that
injury nos. 1 to 7 could have been caused by the dantli and
that the death of the deceased has been caused from shock
and haemorrhage with blood oozing from all the injuries. We
find that injury nos. 1, 2, 3, 4, 5, 6 and 7 are cut wounds on
the left of the face, left of the neck, back of the neck, on the
left muscles and specula bone intestine and on the left of the
waist. The number and nature of these injuries together are
enough in the ordinary course to cause death and have been
caused by dantli purchased by the appellant. Hence, merely
because the prosecution has not been able to prove that
injury nos. 8 and 9 have been caused by dantli, we cannot
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hold that it is not the appellant who has caused the death of
the deceased.
9. It is true that PW-5 has stated that the appellant had a
good behaviour and had no bad habit. Section 8 of the
Indian Evidence Act, 1872, however, provides that the
conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct
influences or is influenced by any fact in issue or relevant
fact, and whether it was previous or subsequent to it.
Hence, any behaviour or conduct of the appellant would be
relevant if it had nexus with the offence under Section 302
alleged to have been committed by him. This Court has held
in Vikramjit Singh alias Vicky v. State of Punjab [2006 (12)
SCC 306] at page 314:
“…..Conduct of an accused must have nexus
with the crime committed. It must form part
of the evidence as regards his conduct either
preceding, during or after the commission of
the offence as envisaged under Section 8 of
the Evidence Act….”
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The general good behaviour of the appellant and the fact
that he had no bad habit have no nexus with the offence
alleged against the appellant and are not relevant when
other circumstances have established beyond reasonable
doubt that it is the appellant and the appellant alone who
has committed the murder of the deceased.
10. In the result, we find no merit in the appeal and we
dismiss the same.
……...……………………….J.
(A. K. Patnaik)
……..………………………..J.
(Chandramauli Kr. Prasad)
New Delhi,
February 15, 2013.
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