CRLA/139/2012 of Naresh Kumar Vs State Of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 139 of 2012

....Appellant

Naresh Kumar

Versus

State of Uttarakhand

.…Respondent

Mr. S.R.S. Gill, Amicus Curiae, for the appellant. Mr. D.K. Sharma, Sr. Addl. A.G. assisted by Mr. N.S. Kanyal, Brief Holder for the State.With

Criminal Jail Appeal No. 21 of 2012

....Appellant

Jareef

Versus

State of Uttarakhand

.…Respondent

Mr. K.C. Tiwari, Amicus Curiae, for the appellant. Mr. D.K. Sharma, Sr. Addl. A.G. assisted by Mr. N.S. Kanyal, Brief Holder for the State.

-Judgment Reserved 04.07.2017-Date of Judgment 28.07.2017

Coram: Hon’ble Rajiv Sharma, J Hon’ble Sharad Kumar Sharma, JPer: Hon’ble Rajiv Sharma, J

Since common questions of law and facts are involved in the above titled appeals, hence the same are taken up together and adjudicated by this common judgment.

2. These appeals are directed against the judgment and order dated 01.05.2012, rendered by learned Sessions Judge/Ist Fast Track Court, Haldwani, District Nainital in Sessions Trial No.56 of 2010, whereby the appellants, were charged with and tried for the offences under Section 302, 120-B and 201 of IPC. Appellants were convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of IPC and to pay fine of Rs.1,000/- (each) and in default of payment of fine to undergo simple imprisonment for period of six months. They were further convicted and sentenced to undergo rigorous imprisonment

for life under Section 120-B of IPC and to pay fine of Rs.1,000/- (each) and in default of payment of fine to undergo simple imprisonment for period of six months. The appellants were further convicted and sentenced to undergo rigorous imprisonment for period of three years under Section 201 of IPC and to pay fine of Rs.500/- each and in default of payment of fine to undergo to simple imprisonment for period of one month. All the sentences imposed under the aforesaid sections were directed to run concurrently.

3. The case of the prosecution, in nutshell, is that an FIR was lodged on 15.09.2009 at 3:30 PM by the informant to the effect that at 9:30 AM, his sister-in-law Rambeti, aged about 38 years, W/o Shri Rajesh Kumar and her mother Sunheri Devi, W/o Late Sompal, have left their house Bhootbangla, Rudrapur by car bearing registration No.UA 06-B-8282 towards registration office as usual. However, she did not reach registration office. The car was being driven by Jareef. They got worried. His sister-in-law Rambeti had plot at Bhowali. She used to talk about the same. He along with his elder brother went in search of his sister-in-law and when they reached near Saldi, many persons have gathered there. They stopped. The car was parked on the road. The dead bodies of his sister-in-law Rambeti and her mother Sunheri Devi were lying in the car. It appeared that the attempt was made to disfigure the faces by throwing the acid. According to him, driver Jareef along with other persons has killed his sister-in-law Rambeti and her mother. Thereafter, the dead bodies were sent for postmortem examination. The case property was taken into possession including the call details. The matter was investigated and the challan was put up against the accused after completing all the codal formalities. The prosecution has examined as many as fourteen witnesses

in support of its case. The statements of the accused were recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. The appellants-accused were convicted and sentenced, as noticed hereinabove. Hence, the present appeals.

4. Learned Amicus Curiae for the appellants has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. Learned counsel on behalf of the State has supported the judgment and order dated 01.05.2012.

5. We have heard learned counsel for both the parties and perused the judgment and record carefully.

6. PW1 Radhe Singh Rana has deposed that on 15.09.2009, he was discharging the duties of Patwari. The information was received at 3:30 PM that at Saldi, Santro car was standing bearing registration No.UA-06-B-8282. The dead bodies of two ladies were lying in the car. They were suspected to be murdered. He sent information to the Naib Tehsildar.

7. PW2 Km. Ekta is the daughter of deceased. According to her, they were two sisters and two brothers. She was the eldest. Her father was also murdered on 01.04.2006. Her father was employed at Sub-Registrar Office at Kiccha. Her father has not purchased any land in the name of his younger brother. Her father has not set up any industry to construct electricity boards. The factory was set up by her uncle. Her father was never threatened by her uncle Naresh and Ashok. She was declared hostile and was cross-examined by learned public prosecutor. In her cross-examination, she has categorically admitted that the day to day expenses were borne by her uncle. She has left her studies in the midstream. Her other sisters and brothers have also left the studies. She has also deposed

that her uncle assured them to get them admitted in school. She has further deposed that her uncle has also undertaken to defray the present and future day-to-day expenses.

8. PW3 Deepak has deposed that the deceased Rambeti was his maternal aunt and deceased Sunheri Devi was his maternal grandmother. His maternal aunt Rambeti was working in the Registrar Office Kiccha. He was also working in Kiccha office. He was declared hostile and cross-examined by learned public prosecutor. He has denied his statement under Section 161 of Cr.P.C. However, he has denied that he was engaged by his maternal uncle Naresh. He has also admitted that the deceased’s family members were living with their grandmother and Naresh was also residing in the Bhootbangla.

9. PW4 Sangeeta Rani is the daughter of the deceased Rambeti. She was minor at the time, when her statement was recorded. She did not know who has killed her mother and grandmother. They have handed over the gun to their uncle Ashok Kumar. She was also declared hostile and cross-examined by learned public prosecutor. She has admitted that she had come along with his uncle to the Court. She has also denied her statement recorded under Section 161 of Cr.P.C.

10. PW5 Sonu is also minor. He is also the son of deceased Rambeti. His intelligence was ascertained by learned trial court after putting certain questions to him. Thereafter, his statement was recorded. He has deposed in his examination-in-chief that his mother has gone in Santro car. He has also denied the statement made under Section 161 of Cr.P.C,

11. PW6 Vasant Lal is the brother-in-law of deceased Rambeti and son of deceased Sunheri Devi. He was also declared hostile.

12. PW8 Dr. C.P. Bhensoda has conducted the postmortem examination. He has proved the postmortem report. According to him, the death has occurred 24 hours before the postmortem examination. According to him, Sunheri Devi has died due to asphyxia due to smothering. Similarly, Rambeti has also died due to asphyxia due to smothering.

13. PW9 Kishan Chand Sharma has proved the call details record of mobile numbers [REDACTED] and [REDACTED]. According to him, there was conversation between these phones for sixteen times between 9:40 AM to 04:20 PM.

14. PW10 S.C. Joshi has deposed that he has arrested the accused Jareef on 17.09.2009. During the course of investigation, he has deposed that his maternal uncle Firasat and Naresh have hatched the conspiracy to kill his sister-in-law. His maternal uncle also offered money and he also became part of conspiracy. They were offered Rs.1.00 lac by the accused Naresh. They, as per the plan of Naresh Kumar have taken away the deceased in car on 15.09.2009. On the way, his maternal uncle also met them with Khan Sahib. They went towards Bhowali bypass. The deceased were killed by them. They tried to push the car down the hill but it got stuck. Naresh Kumar was also arrested by him from his house. He has also accepted his involvement in the crime. According to him, he has killed his sister-in-law. He has also disclosed the mobile numbers.

15. PW11 Padam Singh Mehra has deposed that he reached the spot where Santro car was parked. The

accused Naresh Kumar lodged the report. The inquest report was prepared. The spot map was also prepared.

16. PW12 M.S. Negi has also deposed that inquest report was prepared. The postmortem report was obtained. He supported the statements of witnesses.

17. Surprisingly, the statement of Naresh Kumar-accused was also taken as PW13. The only purpose of producing Naresh Kumar as PW13 was to prove the FIR lodged by him. In his statement, he has deposed that on 15.09.2009, he has received call from his nephew that his mother has not reached the office. Thereafter, he reached Saldi.

18. PW14 Hussain M. Jedi has verified the registration of mobile numbers [REDACTED] and [REDACTED]. Mobile No.[REDACTED] was registered in the name of Satya Pal and the mobile no.[REDACTED] was registered in the name of Virasat.

19. There is no eye witness to the incident. The case is entirely based on circumstantial evidence. In order to prove the case based on circumstantial evidence, the chain must be complete and circumstances should be exclusively point towards the guilt of the accused.

20. What transpires from the evidence discussed hereinabove is that Rajesh Kumar, husband of deceased Rambeti and S/o Sunheri Devi, was working in registration office. He was also murdered on 01.04.2008. Thereafter, Rambeti was appointed in registration office. Naresh Kumar, one of the accused, has lodged the FIR. It would be relevant to refer to the contents of FIR in detail. According to Naresh Kumar, his sister-in-law Rambeti has left at 9:30 AM on 15.09.2009 with her mother as usual from Bhootbangla, Rudrapur for office. However, she did not

reach the registration office. The car was driven by Jareef. They were worried. His sister-in-law Rambeti owned one plot at Bhowali. She used to go to look after the plot. They went towards Bhowali. They saw crowd at particular place and saw dead bodies of his sister-in-law and her mother. How he came to know that his sister-in-law and her mother have not reached the registration office and how he went towards Bhowali, is not explanied. Naresh Kumar hatched conspiracy with co-accused Jareef. Jareef in pre-planned manner has taken away the deceased in his car and killed them and tried to destroy the evidence by pushing car over the cliff. The appellants had also thrown acid on the faces of the deceased in order to destroy the evidence.

21. Learned Amicus Curiae appearing on behalf of the appellants have vehemently argued that the relations between the accused Naresh Kumar and sister-in-law Rambeti were cordial. According to him, the daughter of deceased PW2 Ekta, PW4 Sangeeta, PW5 Sonu have not supported the case of the prosecution and they were declared hostile. Though, PW2 Ekta was declared hostile but in her cross-examination by the learned Government Advocate, she has categorically admitted that all the brothers and sisters have left their studies after the death of her mother. Her uncle has assured them of all help. It is for this reason that the children have become hostile. They were under the influence of their uncle and thus, they have not deposed true facts before the Court, though, under Section 161 of Cr.P.C., they have deposed against their uncle. The accused Naresh Kumar, even, as per the statement of PW3 Deepak was staying in Bhootbangla, Rudrapur. PW4 Kumari Sangeeta (minor) has also admitted in her cross-examination that she had come to the Court with her uncle Naresh Kumar. PW5 Sonu, though minor,

has also deposed that his mother has gone to her office in Santro car. The recoveries were effected on the basis of statement made by the accused under Section 27 of the Indian Evidence Act. The cause of death of the deceased was due to asphyxia due the smothering. The bodies were also bore burn injuries. As per the call details of two phones seized by the police, there is conversation on these phones for 16 times between 9:40 AM- 4:20 PM.

22. Learned Amicus Curiae appearing for the appellants has vehemently argued that the sister-in-law of the accused Naresh Kumar owned plot at Bhowali and she used to go to look after the plot, thus, she has gone to Bhowali. However, there is no evidence or record that deceased Rambeti owned plot at Bhowali. In case based on circumstantial evidence, motive is important. In the present case, motive of the accused was to grab property of his brother, who was also murdered on 01.04.2008. The chain in the present case is complete. It is reiterated that how Naresh Kumar came to know that his sister-in-law Rambeti has not reached the office and how he has gone towards Bhowali along with his brother, has not at all been explained by the appellants.

23. In 1971 (3) SCC 432, in the case of “Baburao Bajirao Patil vs. State of Maharashtra”, their Lordships of the Hon’ble Supreme Court have held that there is seldom, if ever, direct evidence of conspiracy forthcoming. Conspiracy from its very nature must be conceived and hatched in complete secrecy, for otherwise the whole purpose would fail. In case of conspiracy in which only circumstantial evidence is forthcoming, when the broad features are proved by trustworthy evidence connecting all the links of complete chain, then on isolated events the confessional statements of the co-accused lending assurance to the conclusions of the court can be

considered as relevant material and the principle laid down in the case of “Hari Charan Kurmi and Jogia Hajam vs. State of Bihar.” Their Lordships have held as under: -

“6. The principles laid down in these decisions are unexceptionable. The question is whether the judgment of the High Court has violated any of these principles. As already noticed, the High Court had, after narrating the circumstances, come to the conclusion that there was no reasonable doubt of the appellant’s guilt as person who was member of the conspiracy and had participated in the same. The acquaintance of Kalyan with the appellant and the interest taken by the latter in the former and the appellant’s contacts with the police officers and other government officials were undoubtedly not considered by themselves sufficiently strong incriminating circumstances but they were held to render the prosecution story plausible and probable against him. After expressing this opinion, the High Court observed that in addition to the circumstances which were of sufficient importance and of necessary incriminating nature and tendency there were other circumstances relied upon by the prosecution. Those circumstances were, however, considered by the Court not to be indicative by themselves of anything more than that the appellant had contacts and association with PSI Patil, Dy. SP Thorat and P.S.I. Shinde on certain occasions and they did not show that this association was linked with the conspiracy or its execution. The purchase by the appellant of gold worth Rs 3000 sometime about December 27, 1961 and payment of Rs 13,000 to one Anna Gund, owner of grocery shop on or about February 27, 1962, when the appellant was indebted to some other persons was also held not to be of much significance because the appellant was not considered to be man of no substance. He had landed property and he also owned houses. He had further given monetary help to Viswasrao Phate in the elections in 1957. But in spite of these circumstances which were not considered to be conclusively connecting the appellant with the offence, as we have already observed, the High Court had come to the conclusion on the other evidence which does not suffer from any infirmity that there was no reasonable doubt about the appellant’s guilt. After having so held the confessional statements of the co-accused, in our opinion, could legitimately be taken into account by the Court to receive assurance to its conclusions. In regard to the appellant’s presence at Angar on the morning of December 7, 1961 and in regard to the request by Rangya, Shankar and Kalyan to the appellant to help and protect them, the confessional statements of the co-accused could also be appropriately taken into consideration as provided by Section 30 of the Indian Evidence Act. In case of conspiracy in which only circumstantial evidence is forthcoming, when the broad features are proved by trustworthy evidence connecting all the links of complete chain, then on isolated events the confessional statements of the co-accused lending assurance to the conclusions of the Court can be

considered as relevant material and the principle laid down in the case of Hari Charan Kurmi1 would not vitiate the proceedings. The fact that some of the prosecution witnesses had been examined earlier under Section 164 CrPC is only circumstance to be taken into account in appraising the value of their testimony and the Court has to scrutinise such evidence little more closely and see if the other circumstances lend support to it. The decision of this Court in Rai Bahadur v. State of U.P.4 does not seem to us to be of much help to the appellant. On consideration of the arguments addressed at the Bar we do not think there is any ground for interference with the order of the High Court under Article 136 of the Constitution. The appeal thus fails and is dismissed. The appellant will surrender to his bail bond to serve out the remaining sentence.”24. In 2003 (10) SCC 586, in the case of “Govt. of NCT of Delhi vs. Jaspal Singh”, their Lordships of the Hon’ble Supreme Court have held that where their common object or design is itself to do an unlawful act, the specification of such act itself which formed their common design would suffice and it would even be unnecessary or superfluous to further substantiate the means adopted by all or any of them to achieve such object. Their Lordships have held as under: -

“10. So far as the charge under Section 120-B IPC is concerned, it stands proved by showing that two or more persons have agreed to do or cause to do an illegal act or an act which is not illegal by illegal means and that some overt act was done by one of the accused in pursuance of the same. Where their common object or design is itself to do an unlawful act, the specification of such act itself which formed their common design would suffice and it would even be unnecessary or superfluous to further substantiate the means adopted by all or any of them to achieve such object. All the more so, when their common object or design appears to be to commit series of such serious crimes and proof of any overt act in such cases also is mere surplusage and that mere proof that they or some of them were concerned in the overt acts alleged would, per se, go long way to establish that there existed such agreement among them. It is well known and as observed by this Court in Baburao Bajirao Patil v. State of Maharashtra4: (SCC p. 433, para 3)

“[I]ndeed it is seldom — if ever — that direct evidence of conspiracies can be forthcoming. Conspiracy of the present type from its very nature must be conceived and hatched in complete secrecy, for otherwise the whole purpose would fail.”

This Court further, after adverting to the decisions reported in Haricharan Kurmi v. State of Bihar5 and Hanumant Govind Nargundkar v. State of M.P.6 heavily relied upon for the accused therein, observed as hereunder: (SCC p. 436, para 6)

“In case of conspiracy in which only circumstantial evidence is forthcoming, when the broad features are proved by trustworthy evidence connecting all the links of complete chain, then on isolated events the confessional statements of the co-accused lending assurance to the conclusions of the court can be considered as relevant material and the principle laid down in the case of Haricharan Kurmi5 would not vitiate the proceedings.”

25. In AIR 2017 SC 2161, in the case of “Mukesh & another vs. State of NCT of Delhi & others and analogous matter”, their Lordships of the Hon’ble Supreme Court have held that once reasonable ground is shown for believing that two or more persons have conspired to commit offence, anything done by any one of them in reference to their common intention, is admissible against others. Their Lordships have held as under: -

“300. The prosecution has, thus, established that the accused were associated with each other. The criminal acts done in furtherance of conspiracy is established by the sequence of events and the conduct of the accused. An important facet of the law of conspiracy is that apart from it being distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as result of the conspiracy. Section 10 of the Indian Evidence Act which reads as under is relevant in this context:

10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was party to it.

301. Section 10 of the Indian Evidence Act begins with the phrase "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence" which implies that if prima facie evidence of the existence of conspiracy is given and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of the common intention is admissible against all. In the facts of the

present case, the prima facie evidence of the existence of conspiracy is well established.

455. The most important aspect of the offence of conspiracy is that apart from being distinct statutory offence, all the parties to the conspiracy are liable for the acts of each other and as an exception to the general law in the case of conspiracy intent i.e. mens rea alone constitutes crime. As per Section 10 of the Evidence Act, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by any one of them in reference to their common intention, is admissible against the others. As held in State of Maharashtra v. Damu and Ors.: (2000) 6 SCC 269, the only condition for the application of the rule in Section 10 of the Evidence Act is that there must be reasonable ground to believe that two or more persons have conspired together to commit an offence.”

26. In view of the observations and discussion made hereinabove, the prosecution has proved its case beyond reasonable doubt against the appellants-accused. Accordingly, there is no merit in these appeals and the same are hereby dismissed. Appellant- Naresh Kumar is on bail. His bail bonds and sureties are cancelled. Let he be taken into custody forthwith to undergo the sentence imposed upon him. Appellant- Jareef is already in jail. He shall serve out the sentence awarded to him by the trial court.

27. copy of this judgment along with the LCR be sent to the court below for compliance forthwith.

(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)NISHANT