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PETITIONER: MR. KAILASH & ANOTHER

       Vs.

RESPONDENT: STATE OR UTTAR PRADESH

DATE OF JUDGMENT:       08/07/1997

BENCH: M.M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswami J.      The appellant  alongwith one Shiv Kumar and Guddan were tried by  the Sessions Court. Aligarh for the offences under Section 302  read with  Section 34  IPC. The  appellants and Guddan, in  addition to  the offenses  mentioned above  were tried for  an offence  under Section  94  IPR.  one  of  the appellants Kailash  son  of  Prem,  (second  appellant)  and Guddan were further tried under Section 4/25 of the Arms Act also. The  trial court  acquitted Shiv Kumar of the offences under section 302 read with Section 34 but convicted him for an offence  under section  411 .  The appellants  and Guddan were convicted  for the  offences  charged  against    them. additionally  the   second  appellant  was  convicted  under section  4/25, Arms Act.      All the accused preferred appeals to the Allahabad High Court and  the High  Court while  maintaining the conviction quashed the sentence imposed on Shiv Kumar and Guddan on the ground that  they were minors when the offence was committed and by  the time the judgment was rendered by the High court they were  majors (  30 years) and they could not be sent to approved school,  purporting to  follow the judgment of this court in  Jayendra vs.  State of  U.P. (AIR  1982  SC  685). Accordingly the  two appellants  alone have  preferred these two appeals.      Briefly stated.  the facts  as presented by prosecution are as follows:      On 15.5.1977  at about  2.30 p.m. Kumari Manju Rani (PW 1) leaving  her mother, grand-mother (both deceased) and one younger brother  in Bara  Mohalla, went  to the house of one Jagdish Prasad  to witness  the bedai of Shobha, daughter of Jagdish Prasad.  On her return at about 3.15 p.m., she found her house  was locked  from outside but the room adjacent to the courtyard  was kept open. She entered the room and found her mother  and grand-mother  murdered. She  raised an alarm and the  neighbours collected  there. she  found  that  some ornaments and  cash  were  missing.  she  lodged  the  first information report  against unknown  persons on  15.5.77  at police station Shastrigate at about 4 p.m. It is situated at a distance  of 4 furlongs from her house. Her father by name

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Kishan Chandra  (PW2) was  in the service at Meerut. hearing the news.  he came  to Aligarh the next day and he submitted the list  of articles stolen from the house. On the basis of the statement  recorded from  Manju Rani  (PW1), a panchnama was prepared  and the  bodies were sent for post-mortem. The investigating officer collected blood and the blood- stained articles from  the spot  and prepared  a  site  plan.  While investigation was  in progress,  one  Satish  Chandra  (PW8) informed Sri  Niwas (PW9)  on 17.5.77 that he saw on 15.5.77 (date of  occurrence) at  about 3  p.m. the  appellants  and Guddan coming  out of  the house of Kishan Chandra where the incident had taken place. This information was duly conveyed to the  investigating officer.  This gave  some clue  to the investigating officer  to proceed  further  in  the  matter. After recording  the statement  of satish  Chandra  and  Sri Niwas. the investigating officer took steps to apprehend the culprits. Only  on 20.5.77. they could arrest Kailash son of Kanhai (1st Appellant) at about 7 p.m. On search of Kailash. notes of  one rupee  for Rs.  21/- were  recovered. He  also noticed the  shirt  (Exbt.17)  worn  by  the  said  Kailash, contained blood  stains. That  shirt  was  also  taken  into custody. On  interrogation, he  disclosed the  name of  Shiv Kumar as  one of  the associates in the commission of crime. Later on,  Shiv Kumar  also was arrested on the same evening at 8.30 p.m. in his house and 19 currency notes of one rupee each,  gold  earring  and  a  piece  of  gold  earring  were recovered from  his  person.  Kailash  son  of  Kanhai  (1st Appellant) disclosed  that one jhola and one novel of Kishan Chand (PW  2) were  in his  custody  at  the  house  of  one Shakuntala (PW  4). Investigating  officer proceeded  to the house of  Shankuntala alongwith  the said two accused and at about 10  p.m. recoveries  were made of the jhola (Exbt. 12) and the  novel (Exbt.13).  The novel contained blood stains. Recovery memo  was prepared,  statement from  Shakuntala was also recorded  under section  161 of Cr.P.C. At the instance of the  said Kailash and Shiv Kumar, they were taken to Agra and two witnesses namely, Kumar, they were taken to Agra and two witnesses  namely, Noor  Shah  (PW  7)  and  Munna  (not examined) accompanied  the investigating officer. With their help, they searched the houses of Kailash, son of Prem (2nd) Appellant) and  Guddan. They  were arrested  on 21.5.77.  On search of Kailash, son of Prem, currency notes for the value of Rs.  312/- and  one gold  jaimala and  a gold  ring  were recovered. From  Guddan only currency notes of value for Rs. 209/- were  recovered. At  the instance  of Kailash,  son of Prem, 33  novels were  recovered, some  of  which  contained blood stains.  On further interrogation, they (2nd Appellant & Guddan)  disclosed that  they  had  sold  pieces  of  gold bangles to  one Gauri  Shankar (P.W.6) and the investigating officer interrogated  Gauri Shankar.  Nothing was  recovered from him.  The  investigating  officer  also  recovered  one blood-stained knife (Exbt.10) and one wrist (Exbt.6) and one blood-stained shirt  (Exbt.9) from the house of Kailash, son of Prem  and necessary  recovery memo  was prepared.  In the house of  Guddan, the  accused pointed  out  some  stack  of bricks on  the roof  of his  house and from where one blood- stained  knife   (Exbt.  8)   and  one  blood-stained  shirt (Exbt.11) and  one lady’s watch (Exbt. 1) were recovered. On the basis of the recoveries and the statements, chargesheets were filed against the appellants.      The  trial  court  in  the  absence  of  eye-  witness, substantially believed the evidence of PW-8. Satish Chandra, who has clearly stated that he saw the appellants and Guddan on 15.5.77 at 3 p.m. at the place of occurrence. In addition to that,  the recoveries  of material  objects and  also the

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that, the  recoveries  of  material  objects  and  also  the articles belonging to the deceased’s family strengthened the case of  prosecution. The  trial court  was not convinced of the  defence   arguments  that   the  prosecution   has  not established the  manner of  arrest as  well as recoveries as stated in the charge-sheet. According to the defence. though independent  witnesses   would  have   been  available   for preparing the  recovery memo.  only the  person who  use  to oblige to the police generally, has signed the recovery memo and, therefore, the same cannot be believed.      The trial court for valid reasons given in the judgment rejected the  defence case  and accepted  the  case  of  the prosecution, convicted  the accused  as mentioned  above and sentenced  them  to  undergo  imprisonment  for  life  under section 302/34  IPC. Additionally,  The  2nd  Appellant  was sentenced under  Section 4/25  of Arms  Act to  undergo  six months’ rigorous imprisonment.      On appeal,  High Court  also, after  going through  the judgment and  evidence, affirmed the conviction and sentence given by  the trial  court so  far  as  the  appellants  are concerned.      Challenging the conviction and sentence as confirmed by the High Court, learned counsel appearing for the appellants contended that  the High Court failed to appreciate that the prosecution case  was based  on highly  interested witnesses and, therefore, no conviction can be given on such evidence. It was  also contended  that as regards the manner and place of arrest  of the  accused having  been  challenged  by  the defence ought  to have  been  established  beyond  doubt  by producing independent  witnesses. Likewise,  the  recoveries made were  also not proved through independent witnesses. It was contended  that in  the absence  of any eye-witness, the doubt regarding  manner and  place  of  arrest  as  well  as recoveries  should  have  been  established  by  prosecution through independent  case. The  case of the prosecution that the murder  was for  gains was  challenged  by  the  defence stating that  the ornaments  worn by  the deceased  were not touched and  that  was  not  given  due  importance  by  the Sessions Court  as well  as by the High Court. The attesting witness by  name, Noor Shah (PW 7), according to the learned counsel, was  an obliging  witness to  the  police  and  the conviction based  on such  evidence ought  not to  have been sustained by the High Court.      Identical arguments  were placed before the Trial Court and High Court.      Both the  Courts have  repelled such arguments on well- founded reasons.      The High  Court while  repelling the  contention of the defence that  the murder  was not for gains as the ornaments worn by  the deceased  were not  touched, observed  that the ornaments worn  by the  deceased were necklace and ring made of white  and yellow  metal and  those artificial  ornaments contained very  little silver and were almost worth nothing. And that  was the reason the ornaments were left on the body of Savitri, the deceased.      As we  noticed earlier, the trial court mainly believed the evidence  of PW-8  who saw  the appellants on the day of occurrence coming  out of  the house  of PWs 1 & 2 where the murder had taken place at about 3.00 p.m. While dealing with the veracity  of Pw-8’s  evidence, the  High Court  held  as follows:-      "There was  no  reason  for  Satish      Chandra  to   depose  against   the      appellants unless it was a fact. It      was also  argued that there was not

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    much  acquaintance  between  Satish      Chandra and  three appellants  when      he had seen coming out of the house      of Kishan  Chandra,  the  scene  of      crime.  Even   this   argument   is      without     substance.      Firstly      appellants were not totally unknown      to  Satish  Chandra.  Secondly  the      three  appellants   did  not  claim      identification  from   the  witness      Satish Chandra  during the trial of      during   investigation.    Thirdly,      recoveries     of     incriminating      articles   were   made   from   the      appellants      supporting      the      truthfulness of  the  statement  of      Satish   Chandra.   Fourthly.   the      prosecution was  not going to going      to gain any thing by concealing the      correct    source     source     of      information      regarding      the      complicity  of  the  appellants  in      this crime,  Hence we  believe that      Satish Chandra,  PW-8 is a truthful      witness.  the   trial   court   was      justified   in   relying   on   his      testimony."      Before us  nothing more  was brought  to our  notice to doubt the evidence given by PW-8 or to take a different view from that of the High Court.      Regarding the  evidence of  PW-9, the  High Court after noticing that  he was  related to  PW-2 found  that  in  the absence of  any material  to show  that PW-9  has any enmity with any  of the  appellants, the evidence of PW-9 cannot be brushed aside  merely  on  the  ground  of  relationship  as generally the relation of the victim is always interested in bringing to  book the  real culprits  . While  believing the evidence of  PWs-8 &  9, the  High Court was not inclined to believe the  evidence of  DW-1 &  2 were  interested in  the appellants and  they have  come to  support the  accused  by stating that they were not arrested in the manner alleged by the prosecution.  The High  Court placing  reliance  of  the recoveries, namely,  Exbt, 12 & 13 and the identification of the same by Shakuntala, PW-4, an independent witness coupled with the  fact that  recovery of  Exbt. 7,  a watch, and the identification of  the same  by PW-2 and also the recoveries of gold earrings, Exbt, 4 & 5, identified by PW-1, come to a conclusion that  the prosecution  has established  the  case beyond doubt against the appellants.      After perusing  the judgments  of the  trial court  and High Court  and after  hearing the  arguments of the counsel for the  appellants and  the prosecution,  we are  unable to accept any of the contentions of the learned counsel for the appellants to  upset the  conviction  and  consequently  the sentence. Accordingly, the Appeals fail and are dismissed.