VIVEK KALRAversusSTATE .OF RAJASTHAN

                       [2013] 1 S.C.R. 1070

A                         VIVEK KALRA
                                 v.
                     STATE .OF RAJASTHAN
                (Criminal Appeal No. 221 of 2007)
                      FEBRUARY 15, 2013.
8
     [A.K. PATNAIKAND CHANDRAMAULI KR. PRASAD, JJ.]

       Penal Code, 1860 - s. 302 - Murder - Circumstantial
  evidence - Medical evidence that 2 of the 9 injuries on the
C deceased could not have been caused by the alleged weapon
  of offence - Courts below on the basis of the motive •and
  circumstances of the case convicted the accused - On
  appeal, held: Motive not proved - But absence of motive
  would not affect the prosecution case where the chain of other
D circumstances establish beyond reasonable doubt that the
  accused and accused alone committed the offence -
  Circumstances of the present case prove the prosecution case
  beyond reasonable doubt - As per the medical evidence,
  majority of the injuries were stated to have been caused by
E the weapon of crime and were sufficient in the ordinary course
  to cause death - The general good behaviour of the accused
  has no nexus with the offence alleged - Conviction upheld.

       The appellant-accused was prosecuted for killing 13-
  14 years old boy. The prosecution case is based on
F circumstantial evidence. The motive for murder was that
  the accused took revenge from his uncle by killing the
  deceased (deceased being son of the uncle) because the
  uncle as a guardian to him was not giving him an amount
  of Rs. 80,000/ which was in a fixed deposit in his name.
G Trial court convicted him u/s. 302 IPC. High Court affirmed
  the conviction.
       In appeal to this Court, appellant-accused contended
  that motive could not be said to have been proved; that
H                             1070
      VIVEK KALRA v. STATE OF RAJASTHAN               1071


PW5 deposed that the accused had a good behaviour              A
and had no bad habit; and that as per the medical
evidence, injury Nos. 8 and 9 on the person of the
deceased could not have been caused by the weapon of
offence i.e. 'dantli', and therefore prosecution failed to
establish its case beyond reasonable doubt.                    B

    Dismissing the appeal, the Court

     HELD: 1. Where prosecution relies on circumstantial
evidence only, motive is a relevant fact and· can be taken
into consideration under Section 8 of the Evidence Act,        C
1872 but where the chain of other 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          D
the prosecution, the accused cannot be held guilty of the
offence. [Para 6] [1076-D-E]
    Ujjagar Singh v. State of Punjab (2007) 13 SCC 90:
2007 (13) SCR 653 - relied on.
                                                               E
    2. In the instant case, the dead body of the deceased
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 the deceased in a scooter
between 7.00 p.m. and 9.00 p.m. on 07.06.1997 on the           F
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 cassette. 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          G
07.06.1997. From the evidence of PW-26 and PW-7, it is
clear that the blood-stained 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. [Para 7] [1076-G-H; 1077-A-B]                       H
    1072    SUPREME COURT REPORTS              [2013] 1 S.C.R.

A         3. PW-22, the doctor 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. The number and nature of the injuries together
s   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, it
    cannot be held that it is not the appellant who has caused
c   the death of the deceased. [Para 8] [1077-C-E]

       4. The general good behaviour of the appellant and
  the fact that he had no bad habit as stated by PW-5 have
  no nexus with the offence alleged against the appellant
  and are not relevant when other circumstances have
D established beyond reasonable doubt that it is the
  appellant and the appellant alone who has committed the
  murder of the deceased. [Para 9] [1078-B]

     Vikramjit Singh alias Vicky v. State of Punjab 2006 (12)
E SCC 306: 2006 (9) Suppl. SCR 375 - relied on.
                        Case Law Reference:
        2007 (13) SCR 653          Relied on         Para 6
        2006 (9) Suppl. SCR 375 Relied on            Para 9
F
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 221 of 2007.
      From the Judgment & Order dated 25.10.2004 of the High
G Court Judicature for Rajasthan at Jaipur Bench, Jaipur in
  DBCRL No. 602 of 2002.
        Vidya Dhar Gaur for the Appellant.
       Sonia Mathur, Sushi! Kumar Dubey, Pragati Neekhra for
H the Respondent.
      VIVEK KALRA v. STATE OF RAJASTHAN                    1073


    The Judgment of the Court was delivered by                      A
     A.K. PATNAIK, J. 1. 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     8
Penal Code, 1860, (for short 'the IPC') and the sentence of life
imprisonment and fine of Rs.1,000/- for the offence.

     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 By-
pass Road, Sedariya Tiraha, lodged an FIR with Police Station C
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 pu/ia (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 D
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.
                                                                    E
     3. At the trial, the prosecution did not examine any eye-
witness to Jhe 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
                                                                    F
appellant was living with his uncle, Gutcharan Kalra, and there
was a fixed deposit in his name of Rs.80,000/-, but as
Gurcharan Kalra de.cided 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          G
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.                                           H
    1074        SUPREME COURT REPORTS             [2013] 1 S.C.R.


A       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
B 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 and, therefore, it is quite
c 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
0
  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,
E 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
F   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 market and he
                 was playing with the deceased, the appellant came
                 to their house and took the deceased with him
G
                 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
H                evidence of PW-6 that at about 7.00 p.m. in the
 VIVEK KALRA v. STATE OF RAJA$THAN                    1975
          [A.K. PATNAIK, J.]
        evening of 07.06.1997, he and his wife had gone        A
        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 scoote'r on
        the pretext of taking a cassette.
                                                               B
(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         c
        been entered in the register of the shop, but the
        cassette was never received back.

(iv)    PW-7 is a witness to the panchnama of the dead
        body of the deceased (Ext. P-6) which bears his        D
        signatures at points A to B and he has said that one
        dantli was lying on the ground near the pu/ia 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        E
        stated that the dantli was blood- stained.

(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/     F
        - 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     G
        purchased by the appellant from him.

(vi)    PW-22, Dr. B.K. Mathur, has given his opinion that
        he conducted the postmortem on the deceased on
                                                               H
    1076     SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A              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
8 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
C 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
D consideration under Section 8 of the Indian Evidence Act, 1872
  but where the chain of other 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
E 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
F       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 cliche) the motive is in the mind
        of the accused and can seldom be fathomed with any
        degree of accuracy."
G
       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
H 07.06.1997 on the pretext of getting a cassette. PW-28 has
      VIVEK KALRA v. STATE OF RAJASTHAN                       1077
               [A.K. PATNAIK, J.]
confirmed that between 8.00 p.m. and 8.30 p.m. th~ appellant           A .
had come to his cassette shop and taken the 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 blood-stained dantli has been recovered       B
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       C
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           D
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 hold that it is not the          E
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          F
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        G
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             H
    1078     SUPREME COURT REPORTS              [2013] 1 S.C.R.


A       regards his conduct either preceding, during or after the
        commission of the offence as envisaged under Section 8
        of the Evidence Act.. .. "

    The general good behaviour of the appellant and the fact that
    he had no bad habit have no nexus with the offence alleged
8
    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.

C       10. In the result, we find no merit in the appeal and we
    dismiss the same.

    K.K.T.                                   Appeal dismissed.