Supreme Court - Daily Orders
Nemi Chand vs State Of Rajsthan Tr.Home Sec. on 24 November, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, Shiva Kirti Singh
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.617 OF 2009
NEMI CHAND APPELLANT(S)
VERSUS
STATE OF RAJSTHAN THROUGH HOME SECRETARY RESPONDENT(S)
O R D E R
No one has entered appearance on behalf of the appellant in place of Mr. K.L. Janjani, learned counsel, hence we appoint Mr. Amrendra Bal, learned counsel, as Amicus Curiae on behalf of the appellant.
This appeal by special leave is directed against the conviction and sentence imposed on the appellant for the offences under Section 302 read with Section 34, Sections 394, 460 and 436 read with Section 34 IPC by the impugned judgment dated 27.3.2008. Along with the Signature Not Verified appellant two others by name, Kurda Ram and Digitally signed by Narendra Prasad Date: 2015.11.30 17:21:47 IST Jagdish Prasad were also charged for the Reason: 1 offences under Section 302 read with Section 34, Sections 394, 460 and 436 read with Section 34 IPC.
The case of the prosecution was that on the night of 6.7.2000 at about 11.30 P.M., the three accused barged into the hut of the deceased/Durga Devi who was sleeping in her hut, that they were in a drunken state and started searching for the ornaments, that the deceased woke up and raised a hue and cry and she was assaulted and inflicted with injuries by all the three accused. It was alleged that they killed her, made her naked, removed some of her ornaments and left the hut by setting the hut on fire. When the fire was noted by the villagers, they raised a hue and cry and the son of the deceased/Suresh Kumar (PW.4) rushed to the hut and on seeing his mother killed, initially gave a report (Exhibit P.14) to the Police Station Sadar Jhunjhunu at 2.00 A.M. on 7.7.2000. Subsequently, on hearing from PW.1 (Laxminarayan) and PW.2 (Ladu Ram), PW.4 gave another report to the police on 2 11.7.2000 under Exhibit P.11. There was also a subsequent report made on 16.7.2000 under Exhibit P.13. Based on the said reports, the police commenced the investigation and in the course of investigation the accused were apprehended and at the instance of the appellant herein some of the ornaments such as ear tops and nose pin was recovered in the presence of Panch Witnesses. The appellants along with the other two accused were put to trial and the Trial Court convicted all the accused for the offences under Section 302 read with Section 34 IPC, Section 460, 394 and 436 read with Section 34 IPC. The post mortem report (Exhibit P.30) disclosed as many as 12 injuries on the body of the deceased. PW.9/Dr. S.K. Bhargava, who examined body of the deceased reported that the cause of death was coma due to compression of brain caused by a head injury, namely, injury No.1 which was sufficient to cause death in the ordinary course of nature.
It was a case of circumstantial evidence 3 and the conviction and sentence imposed on the appellant as well as the other two accused was subject matter of challenge by separate appeals in Criminal Appeal Nos.846, 936 and 1041 of 2003. By the impugned common judgment, as stated above, the Division Bench of the High Court of Rajasthan, Jaipur Bench while confirming the conviction and sentence imposed on the appellant acquitted the other two accused, namely, Kurda Ram and Jagdish Prasad.
Mr. Amarendra Bal, learned Amicus Curie appearing counsel for the appellant, in his submissions contended that the chain of circumstances were not sufficiently proved in order to sustain the conviction imposed on the appellant. The learned counsel, in the first instance, pointed out that though PWs.1, 2 and 6 claimed to have seen the appellant running away from the hut of the deceased did not support the said version when they were examined before the Court. When we went through the evidence tendered by the said witnesses, we find from their version that they 4 saw Nemi Chand coming out from the hut of the deceased, that he was wearing lungi and baniyan and when they reached the hut of the deceased they saw the deceased lying dead outside the Khuddi and that she was found naked. Her ears and nose were torn, though they could not identify any mark of other injuries. The said version of PW.1 was fully corroborated by PW.2 and PW.6.
In the course of cross examination what all pointed out was that PW.1 did not tell about running of Nemi Chand from the Khuddi when the SHO came for inspecting the spot. However in the later part of the cross examination, PW.1 continue to mention that he saw Nemi Chand, the appellant herein coming out from Khuddi running towards the Northern side, which he saw at a distance of about one foot from the Khuddi. He also stated that he did not run after him to catch him because the deceased was burning, so they became nervous. The said version of PW.1 was fully supported by PW.2 and PW.6.
5 In fact PW.4/Complainant, who is none other than the son of the deceased, also mentioned that it was PWs 1 and 2 who informed him about the running away of Nemi Chand immediately after he reached the house of the deceased and noted her death. We, therefore, reject the said submission of learned counsel that there was any contradiction in the version of PWs.1, 2 and 6 as regards the presence of the appellant at the time when he was noticed running away from the hut of the deceased.
Learned counsel then submitted that PW.4 initially gave Exhibit P.14 Report in which he did not name anyone which was the Report given at the earliest point of time and that only in the second report Exhibit P.11, the implication of the appellant came to be made. Learned counsel, therefore, submitted that the subsequent reporting made by PW.4 was not truthful and, therefore, the case lodged against the appellant by the prosecution was not true. Though in the first blush, the submission looks attractive, when we peruse 6 Exhibit P.14 and Exhibit P.11 we find that Exhibit P.14 was given at 2.00 A.M. on 7.7.2000 i.e. immediately after the occurrence took place at around 11.30 P.M. on 6.7.2000. At that point of time he was not aware as to who was responsible for setting fire to the hut of the deceased as well as for the condition in which his mother, namely, the deceased was found lying naked inside the hut. However, when he happened to interact with PWs.1 and 2 subsequently, they informed him about what they noticed, namely, the presence of Nemi Chand, the appellant herein at the time when they noticed the fire in the hut of the deceased. Immediately thereafter PW.4 lodged Exhibit P.11 on 11.7.2000 specifically referring to the presence of the appellant at the time of occurrence as was informed to him by PWs.1 and
2. Therefore, in the absence of any other malafide motive or intention to be attributed to PW.4 there is no reason why the subsequent Report Exhibit P.11 lodged by PW.4 should not be accepted. Therefore, we find no serious 7 illegality or irregularity in the courts below in having accepted the version found in Exhibit P.14 along with Exhibit P.11 as well as the version of PW.1, 2, 4 and 6 which fully supported the case of the prosecution as regards the presence of the appellant immediately after the occurrence.
It was also further supported by the medical evidence and also the recoveries which came to be made at the instance of the appellant which establish that those jewels recovered at the instance of the appellant belong to the deceased and in the absence of any valid justifiable reasons forthcoming from the appellant he was rightly found guilty for the killing of the deceased as well as for the other offences.
Insofar as the acquittal of the other two accused Kurda Ram and Jagdish Prasad are concerned, we find that apart from Exhibits P.14 and P.11 lodged on 7.7.2000 and 11.7.2000 respectively, further report was stated to have been filed at the instance of PW.4 on 16.7.2000 8 under Exhibit P.13. It was only in the said Report, the name of the other two accused, Kurda Ram and Jagdish Prasad, came to be implicated. Having considered the lack of genuineness in the said Report, we find that the High Court rightly rejected the same and gave the benefit in favour of those two accused. In fact, perusal of the evidence of PWs.1 and 2, who witnessed the presence of the appellant did not refer to the presence of the other two accused.
In such circumstances, though the High Court chose to acquit the other two accused, insofar as the appellant was concerned, since there was enough legally acceptable material evidence established the chain of circumstances and in the absence of any valid explanation forthcoming from the appellant as to the circumstances which were found proved against him, we do not find any merit in this appeal to interfere with the conviction and sentence imposed on the appellant. The appeal fails and the same is dismissed.
9 Since, we have appointed Mr. Amarendra Bal as Amicus Curiae, we fix a sum of Rs.10,000/- as his fee.
................................J. [FAKKIR MOHAMED IBRAHIM KALIFULLA] ................................J. [SHIVA KIRTI SINGH] NEW DELHI;
NOVEMBER 24, 2015.
10
ITEM NO.102 COURT NO.7 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 617/2009
NEMI CHAND Appellant(s)
VERSUS
STATE OF RAJSTHAN TRROUGH HOME SECRETARY Respondent(s)
(with appln. (s) for bail and office report) Date : 24/11/2015 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA HON'BLE MR. JUSTICE SHIVA KIRTI SINGH For Appellant(s) Mr. Amarendra Bal,Adv. (A.C.) Mr. Pankaj Kumar Singh,Adv.
Mr. Mahindra Dubey,Adv.
Mr. K. L. Janjani,Adv. (Not Present) For Respondent(s) Mr. Shovan Mishra,Adv.
For Mr. Milind Kumar,AOR UPON hearing the counsel the Court made the following O R D E R The appeal is dismissed in terms of the signed order.
(NARENDRA PRASAD) (SUMAN JAIN)
COURT MASTER COURT MASTER
(Signed order is placed on the file) 11