# 14 (ADDL.) S.C.R. 270 DEEPAK VERMA v. STATE OF HIMACHAL PRADESH . (CRIMINAL APPEAL N0.2423 OF 2009)

- **Citation:** [2011] 14 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 2011-10-11
- **Bench:** R.M. Lodha, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-270-deepak-verma-v-state-of-himachal-pradesh-criminal-appeal-n0-27397
- **Pages:** 31

## Headnote

Penal Code, 1860:
c
ss.302 and 323 rlw s.27 of Arms Act- Conviction of two
accused under, for causing death of two persons by gun shot
injuries - Allegation that offence was committed on account
of retaliation and vengeance - Accused no. 1 fired shots at
the first victim from his double barrel gun -
Thereafter,
D accused no. 2 handed over cartridges to accused no. 1 who
reloaded his gun - When second victim came to save the first
victim, accused no. 1 shot at him - Conviction by courts below
- On appeal, held: Prosecution established that it was only
on account of the rejection of marriage proposal of accused
E no. 1 by the first victim's father that the accused nos. 1 and 2,
as an act ofretaliation and vengeance, jointly committed the
offence - Discrepancies in recording time, as well as the
overwriting in the dying declaration were too trivial to brush
aside the overwhelming oral evidence produced by the
prosecution - Dying declaration of the victim and the
F statements of her relations, who had appeared as prosecution
witness, duly established the commission of the offence, as
well as, the common motive for the two accused to have joined
hands in committing the crime - Conviction upheld.
G
ss.302 and 323 r/w s.27 of Arms Act- Conviction of two
accused under, for causing death of two persons - Plea of
accused no.2 that no role whatsoever was attributed to him -
Held: Evidence on record showed that the two accused had
come together on a scooter to commit the offence - Accused
H
270
DEEPAK VERMA v. STATE OF HIMACHAL
271
PRADESH
no. 1 fired first two shots at the victim from his double barrel
A
gun - Thereafter, there were no live cartridges in the gun and
it was accused no.2 who provided two live cartridges to the
accused no. 1 - After commission of the crime, both accused
jointly made escape on a scooter - Therefore, it cannot be
held that accused no.2 was merely a bystander and was
B
incidentally present at the place of occurrence - He was
rightly convicted.
Evidence:
Delay in lodging FIF' - Effect on prosecution case - Plea
C
that all the family members of deceased did not make any
statement to police until the eventual disclosure of the.names
of the two accused by deceased herself in her dying
declaration - Held: It is not expected that the close family
members would proceed to police station to lodge a report
D
when the injured are in critical condition - Full attention for
the welfare of the two close family members is the expected
behaviour of all family members - Therefore, delay in lodging
complaint could not be considered fatal to the prosecution
case.
Motive - Held: Proof of motive is not a sine qua non
before a person can be held guilty of the commission of a
crime - Motive being a matter of the mind, is more often than
not, difficult to establish through evidence.
The prosecution case was that the father of the
appellants-accused no.1 and 2 was tenant in the house
of PW-2. Accused no.2 was giving home tuitions to the
children of PW-2. One and half years prior to the incident,
E
F
the appellant-accused no.2 had approached PW-2 with
G
the marriage proposal of daughter of PW-2 'KV' with his
brother the appellant-accused no.1. PW-2 did not accept
the proposal. Thereafter 'KV' was married and staying in
a different city. On the day of incident, 'KV' had come to
her father's ho.use to stay. At 10.30, the appellantsH
272
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A accused no.1 and 2 went to the hou~e of PW-2 on a
scooter. Appellant-accused no.1 had in his possession
a double barrel gun. When 'KV' came in the courtyard,
appellant-accused no.1 fired two shot at 'KV' from his
double barrel gun which hit her on her abdomen and
B shoulder. PW-4, grandmother of 'KV' came to the
courtyard and tried to catch the two accused. Appellantaccused no.1 hit PW-4 in her abdomen, chest and on her
wrist with the butt of the gun. After the two shots were
fired by appellant-accused no.1, appellant-accused no.2
c handed over two cartri

## Text

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A
B
[2011] 14 (ADDL.) S.C.R. 270
DEEPAK VERMA
v.
STATE OF HIMACHAL PRADESH
. (CRIMINAL APPEAL N0.2423 OF 2009)
OCTOBER 11, 2011
[R.M. LODHA AND JAGDISH SINGH KHEHAR, JJ.]
Penal Code, 1860:
c
ss.302 and 323 rlw s.27 of Arms Act- Conviction of two
accused under, for causing death of two persons by gun shot
injuries - Allegation that offence was committed on account
of retaliation and vengeance - Accused no. 1 fired shots at
the first victim from his double barrel gun -
Thereafter,
D accused no. 2 handed over cartridges to accused no. 1 who
reloaded his gun - When second victim came to save the first
victim, accused no. 1 shot at him - Conviction by courts below
- On appeal, held: Prosecution established that it was only
on account of the rejection of marriage proposal of accused
E no. 1 by the first victim's father that the accused nos. 1 and 2,
as an act ofretaliation and vengeance, jointly committed the
offence - Discrepancies in recording time, as well as the
overwriting in the dying declaration were too trivial to brush
aside the overwhelming oral evidence produced by the
prosecution - Dying declaration of the victim and the
F statements of her relations, who had appeared as prosecution
witness, duly established the commission of the offence, as
well as, the common motive for the two accused to have joined
hands in committing the crime - Conviction upheld.
G
ss.302 and 323 r/w s.27 of Arms Act- Conviction of two
accused under, for causing death of two persons - Plea of
accused no.2 that no role whatsoever was attributed to him -
Held: Evidence on record showed that the two accused had
come together on a scooter to commit the offence - Accused
H
270
DEEPAK VERMA v. STATE OF HIMACHAL
271
PRADESH
no. 1 fired first two shots at the victim from his double barrel
A
gun - Thereafter, there were no live cartridges in the gun and
it was accused no.2 who provided two live cartridges to the
accused no. 1 - After commission of the crime, both accused
jointly made escape on a scooter - Therefore, it cannot be
held that accused no.2 was merely a bystander and was
B
incidentally present at the place of occurrence - He was
rightly convicted.
Evidence:
Delay in lodging FIF' - Effect on prosecution case - Plea
C
that all the family members of deceased did not make any
statement to police until the eventual disclosure of the.names
of the two accused by deceased herself in her dying
declaration - Held: It is not expected that the close family
members would proceed to police station to lodge a report
D
when the injured are in critical condition - Full attention for
the welfare of the two close family members is the expected
behaviour of all family members - Therefore, delay in lodging
complaint could not be considered fatal to the prosecution
case.
Motive - Held: Proof of motive is not a sine qua non
before a person can be held guilty of the commission of a
crime - Motive being a matter of the mind, is more often than
not, difficult to establish through evidence.
The prosecution case was that the father of the
appellants-accused no.1 and 2 was tenant in the house
of PW-2. Accused no.2 was giving home tuitions to the
children of PW-2. One and half years prior to the incident,
E
F
the appellant-accused no.2 had approached PW-2 with
G
the marriage proposal of daughter of PW-2 'KV' with his
brother the appellant-accused no.1. PW-2 did not accept
the proposal. Thereafter 'KV' was married and staying in
a different city. On the day of incident, 'KV' had come to
her father's ho.use to stay. At 10.30, the appellantsH
272
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A accused no.1 and 2 went to the hou~e of PW-2 on a
scooter. Appellant-accused no.1 had in his possession
a double barrel gun. When 'KV' came in the courtyard,
appellant-accused no.1 fired two shot at 'KV' from his
double barrel gun which hit her on her abdomen and
B shoulder. PW-4, grandmother of 'KV' came to the
courtyard and tried to catch the two accused. Appellantaccused no.1 hit PW-4 in her abdomen, chest and on her
wrist with the butt of the gun. After the two shots were
fired by appellant-accused no.1, appellant-accused no.2
c handed over two cartridges to appellant-accused no.1
who reloaded his gun and shot at 'RK' maternal uncle of
'KV' who had come to the courtyard and trying to lift 'KV'.
Thereafter the two accused fled away. PW-3, wife of 'RK'
on hearing the first shot had also rushed to the courtyard.
0 Both the injured were taken to hospital. 'RK' was declared
dead on the same day. The doctor, PW-11 gave a report
at 12.20 that 'KV' was not fit to make her statement since
her pulse rate and blood pressure, at that time was not
recordable and also she had no control over her speech.
E Subsequently at 13.00, PW-11 declared her medically fit.
Thereafter, the statement of 'KV' was recorded by ASI PW26. The similar statement was made by her to PW-2 on
way when she was shifted to another hospital. She died
after 4 days.
F
On the day of occurrence, the two accused were
apprehended at the police naka. A double barrel gun with
one live cartridge and one spent cartridge were
recovered from their possession. Based on disclosure
statement of appellant-accused no.1, 13 more live
G cartridges besides four empty cartridge were recovered
from his house.
The trial court convicted the appellants-accused no.1
and 2 under Sections 302 and 323 r/w Section 34, IPC and
H Section 27 of Arms Act. The High Court afrirmed the order
DEEPAK VERMA v. STATE OF HIMACHAL
PRADESH
of conviction.
273
A
In the instant appeal, it was contended for the
appellants that the case set, up by the prosecution was
false and fabricated; that even though the two accused
were well known to the family of the deceased, yet all the
8
family of members of the deceased remained quiet till the
statement made by 'KV' involving them in the incident;
that the incident occurred at 10.30 a.m. and yet none of
the eye-witnesses disclosed the names of the offenders.
The appellant-accused no.2 pleaded that no role
C
whatsoever was attributed to him and that even as per
the prosecution, all the shots were fired by appellantaccused no.1 and the double barrel gun remained in his
possession and, therefore, appellant-accused no.2 was
a mere by-stander and had no role in the crime; that there
D
was no motive whatsoever for appellant-accused no.2 to
have committed the offence in question.
Dismissing the appeal, the Court
HELD: 1. The occurrence took place at 10:30 hrs. on
28.7.2003. Both the victim-deceased 'KV' .and the paternal
uncle of the deceased 'RK' were taken to the hospital
immediately after the occurrence. The uncle was declared
dead at 12:30 hrs. on the date of occurrence itself. The
condition of 'KV' was critical at that juncture. This is
evident from the fact that the doctor PW11 gave a report
at 12:20 hrs., (on 28.7.2003) to the effect, that 'KV' was not
E
F
fit to record her statement. The attending doctor had
recorded, that her pulse rate and blood pressure were not
recordable. In the peculiar facts, it is evident that the first G
endeavour of all close family members would have been
to have the two injured treated. None of the close family
members could have been expected to proceed to the
police station to lodge a report when both the injured
were critical. Full attention for the welfare of the two close
H
274
SUPREME COURT REPORTS [2011] 14 (ADDL.)' S.C.R.
A family members would have been the expected behaviour
of all family members. The action to be taken against the
assailants would have been a matter of secondary
concern. The contention of their not having made any
statements at that juncture to the police, cannot therefore,
B be considered unnatural. 'KV' was declared medically fit
at 13:00 hrs., on 28.7.2003 by PW11. She specifically
identified the two accused appellant no.1 and 2 as the
perpetrators of the occurrence. There is no reason
whatsoever to doubt the dying declaration made by 'KV'.
c Besides, the dying declaration of 'KV' the prosecution
endeavoured to establish the guilt of the accused, by
producing three eye-witnesses. PW1, (aged 14 years at
the time of occurrence), who was in the courtyard itself
at the time of occurrence was the younger brother of the
0 deceased 'KV'. In his deposition, he reiterated the factual
position recorded by 'KV' in her dying declaration. The
grand-mother of the deceased PW4, aged 61 years, was
a stamped witness. At the time of occurrence she was hit
by appellant-accused no.1, in her abdomen, chest and on
E her right wrist with the butt of his double barrel gun. She
also identified the accused in her statement. On medical
examination, she was found to have suffered multiple
bruises, which could have been caused by the butt of a
double barrel gun. Additionally, PW3 was also an eyewitness whose statement was recorded. She was the
F wife of the deceased 'RK'. She had come into the
courtyard on hearing the first shot fired at 'KV. The dying
declaration of 'KV' was supplemented by PW3 as well.
The said three witnesses, a young boy, the wife of the
deceased and an old grandmother were natural witness,
G whose presence at the place of occurrence, did not cast
any shadow of doubt. The prosecution was able to
establish the motive of the appellants-accused in having
committed the crime. In so far as the instant aspect of the
matter is concerned, the alleged motive of declining the
H marriage proposal of the appellant-accused no.1, at the
DEEPAK VERMA v. STATE OF HIMACHAL
275
PRADESH
hand·s of his elder brother, appellant-accused no.2 was
A
. reiterated by PW1, PW2, PW3 as also PW4, as well as, by
'KV' in her statement recorded by ASI PW-26. It is only
on account of the rejection of the said marriage proposal
that and appellants-accused nos.1 and 2, as an act of
retaliation and vengeance, jointly committed the offence
B
in question. No reason whatsoever emerges from the
evidence produced before the trial court why the family
of the deceased 'KV' and/or 'RK' would falsely implicate
the accused-appellants nos.1 and 2. The cumulative
effect of all the factors clearly negate the first contention
C
raised on behalf of the appellants. [Para 17] [286-G-H; 287A-H; 288-A-F]
2. It is not possible to accept the contention that the
-appellant-accused no.2 was not an active participant in
·the crime in question. The evidence produced by the D
1prosecution clearly established that the two accused-
.appellants nos.1 and 2 had come to the house of PW2
•on a scooter to commit the crime in question. It is also
•apparent that at one juncture only two cartridges can be
!loaded in a double barrel gun. With the cartridges loaded
E
lin the gun, the appellant-accused no.1 had fired the first
ltwo shots at 'KV'. Thereafter, there were no live cartridges
On the gun. PW4 pointed out, that after the appellanteccused no.1 had fired two shots at 'KV', the appellante ccused no.2 provided two live cartridges to. the
F
appellant-accused no.1. Accused no.1 then reloaded his -
-:louble barrel gun with the two live cartridges furnished
->y appellant-accused no.2 and fired one further shot at
111he deceased 'RK'. After the commission of the crime, the
-wo accused jointly made good their escape on a scooter.
G
-'Vhen the two accused were apprehended at police
'naka" the appellant-accused no.2 was driving the
•cooter, whereas, appellant-accused no.1 was pillion
'iding with him. It, accordingly emerged that after having
-:ommitted the crime, the appellant-accused no.2 also
H
276 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A helped his brother appellant-accused no.1 to make good
his escape from the place of occurrence. It is, therefore,
not possible to conclude that appellant-accused no.2
was merely a by-stander, who was incidentally present
at the place of occurrence. Both the accused jointly
8 planned and committed the crime. Various eye-witnesses
· had identified the two accused who had committed the
offence. The dying declaration of 'KV' and the statements
of her relations, who had appeared as prosecution
witness, duly established the commission of the crime,
C as well as, the common motive for the two accused to
had joined hands in committing the crime. The handing
over of two live cartridges by the appellant-acclised no.2
to his brother accused no.1, after he had fired two shots
from the double barrel gun with which the crime in
question was committed, completely demolished the
D contention, in so far as the participation of the appellantaccused no.2 in the crime was concerned. [Para 19) [292G-H; 293-A-H; 294-A-B]
State of Uttar Pradesh vs. Sahrunnisa & Anr. (2009) 15
E SCC 452: 2009 (10) SCR 237; Aizaz & Others vs. State of
Uttar Pradesh (2008) 12 SCC 198: 2008 (12) SCR 13 - held
inapplicable.
3. Proof of motive is not a sine qua non before a
person can be held guilty of the commission of a crime.
F Motive being a matter of the mind, is more often than not,
difficult to establish through evidence. In the instant case,
there was extensive oral evidence in the nature of the
statements of three eye-witnesses out of which one was
a stamped witness, that appellant-accused no.2 was an
G active participant in the crime in question. There is also
the dying declaration of 'KV' implicating both the
accused. The oral. evidence against the appellantaccused no.2 was clear and unambiguous. Besides,
motive of appellant-accused no.2 was also fully
H established. [Para 21] [297-B-F]
DEEPAK VERMA v. STATE OF HIMACHAL
277
PRADESH
State of Uttar Pradesh v. Rajvir (2007) 15 SCC 545 -
A
held inapplicable.
4. There can be no doubt that there were certain
discrepancies in the time recorded in the dying
declaration. Additionally, there can also be no doubt that
8
certain words which are not in common use have found
place in the dying declaration made by 'KV'. Despite that
it is not possible to accept that 'KV' was not fit to make
her statement when she actually recorded the same in the
presence of ASI PW26 and the doctor PW11. The very C
medical report, relied upon by the appellants, which
depicted that the pulse rate and blood pressure of 'KV'
was not recordable, also revealed, that on having been
given treatment her blood pressure improved to 140/70
and her pulse rate improved to 120 per minute. This
aspect of the medical report was not subject matter of D
challenge. The fact that the incident occurred on
28. 7 .2003 and 'KV' eventually died on 1.8.2003, i.e., 4 days
after the recording of the dying declaration also showed
that she could certainly have bee"! fit to make her dying
declaration on 28.7.2003. Her fitness was actually E
recorded on the dying declaration by PW11. A number of
prosecution witnesses revealed that she was conscious
and was able to speak. 'KV' after having recorded her
statement before ASI PW26, also repeated the same
version of the incident (as she had narrated while
F
recording her dying declaration) to her father PW2, when
she was being shifted from Chamba to Amritsar for
medical treatment. Moreover, the doctor PW11 appeared
as a prosecution witness, and affirmed the veracity of her
being in a fit condition to make the statement. There is
G
no reason whatsoever to doubt the statement of PW11.
The question of doubting the dying declaration made by
'KV' could have arisen if there had been other cogent
evidence to establish any material discrepancy therein.
Three eye witnesses PW1, PW3 and PW4 supported the
H
278
SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A version of the factual position depicted in the statement
of 'KV'. It is, therefore, not possible to accept, that the
statement of 'KV' was either false or fabricated, or that,
the statement was manipulated at the hands of the
prosecution to establish the guilt of the appellantsB accused nos.1 and 2 or that she was not medically fit to
make a statement. The discrepancies in recording time,
as well as, the overwriting pointed out were too trivial to
brush aside the overwhelming oral evidence produced by
the prosecution. The order passed by the trial court and
c also, the order passed by the High Court are affirmed.
[Paras 23, 24] [299-C-H; 300-A-E]
D
Case Law Reference:
2009 (10) SCR 237
held inapplicable
Para 18
2008 (12) SCR 13
held inapplicable
Para 18
(2007) 15 SCC 545 held inapplicable
Para 20
CRIMINAL APPELLAT'f JURISDICTION: Criminal Appeal
E No. 2423 of 2009.
F
From the Judgment and Order dated 02.09.2009 of the
Division Bench of the High Court of Himanchal Pradesh at
Shimla in Criminal Appeal No. 27 of 2006.
WITH
-
Criminal Appeal No. 157 of 2010.
R.N. Mittal, Arvind Kumar Gupta, Rahul Mangla and Mohit
Garg for the Appellant.
G
Naresh K. Sharma for the Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. f. These appeals have
been preferred by Dheeraj Verma (original accused no.1) and
H
DEEPAK VERMA v. STATE OF HIMACHAL
279
PRADESH [JAGDISH SINGH KHEHAR, J.]
Deepak Verma {original accused no.2) so as to assail the
A
osder of conviction and sentence dated 30.12.2005 rendered
in Sessions Trial no.55 of 2003 by the Sessions Judge,
Chamba, as also, the decision rendered by the Himachal
Pradesh High. Court in Criminal Appeal No.27 of 2006,
whereby, the conviction and sentence awarded by the Sessions
B
Judge, Chamba, on 30.12.2005, came to be upheld on
2.9.2009.
2. The prosecution, in order to bring home the case
against the appellants-accused examined as many as 27
witnesses. The prosecution story, as is emerged from the
C
statements of the witnesses, produced by the prosecution,
reveals· that Kamini Verma alias Doli resided with her father
Arun Kumar PW2 in Mohalla Sultanpur, Chamba, in the State
of Himachal Pradesh. Kamini Verma was married to Anmol
Verma alias Munna on 6.2.2003. Thereafter, she had been
D
residing along with her husband at Mukerian in the State of
Punjab. On 28.7.2003, Kamini Verma came fo her father's
house in Chamba from Pathankot. She had arrived at 05:30
hrs. She had been escorted to her father's house by Rakesh
Verma {her paternal uncle, i.e., younger brother of her father
E
Arun Kumar, PW2), and his wife Veera.
3. About a year before the marriage of Kamini Verma with .
Anmol Verma, Deepak Verma, appellant-accused no.2 had
approached Arun Kumar PW2 {father of Kamini Verma) with
F
a marriage proposal for· Kamini Verma, with his younger
brother Dheeraj Verma appellant-accused no.1. Kamini
Verma's father, Arun Kumar did not accept the proposal.
Thereafter, Kamini Verma was married to Anmol Verma on
6.2.2003. Earlier, Dheeraj Verma and Deepak Verma, were
G
tenants in the house of Arun Kumar (PW2, father of Kamini
Verma). The two accused were originally residents of
Gurdaspur in the State of Punjab: The father of the accused,
namely, Shyam Lal, a goldsmith, had moved to Chamba in the
State of Himachal Pradesh, and had started to reside in the
H
280 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A house of Arun Kumar PW2. Shyam Lal has reportedly now gone
back to the State of Punjab. The affinity between the family of
Arun Kumar (PW2, father of Kamini Verma) and Shyam Lal
(father of appellants-accused Dheeraj Verma and Deepak
Vernia) was also based on the fact, that Deepak Verma,
B appellant-accused no.2, had been giving home tuitions to
Kamini Verma and her brother Deepak Kumar (PW1).
4. Kamini Verma reached Chamba from Pathankot on
28.7.2003 at about 05:30 hrs. Dheeraj Verma, appellantaccused no.1 and Deepak Verma, appellant-accused no.2
C came to the house of Arun Kumar (PW2, father of Kamini
Verma) at Mohalla Sultanpur, Chamba at about 10:30 hrs. They
had come on a scooter. Dheeraj Verma, appellant-accused
no.1, had in his possession, a double barrel gun. Aqcording to
the case of the prosecution, after taking breakfast, Kamini
D Verma went to the kitchen to clean utensils. Having cleaned the
utensils she came out into the courtyard. As she stepped into
the courtyard, Dheeraj Verma, appellant-accused no.1 fired one
shot at her from his double barrel gun. This shot hit her in the
abdomen. Dheeraj Verma, appellant-accused no.1, then fired
E another shot at Kamini Verma. The second shot hit her on the
left shoulder. Sumitri Devi (PW4, grandmother of Kamini
Verma) who had also come into the courtyard, tried to catch
the two accused who were making good their escape. Dheeraj
Verma, appellant-accused no.1 hit Sumitri Devi PW4 in her
F abdomen, che~t and on her right wrist, with the butt of his double
barrel gun. Later, when she was medically examined (on
3.8.2003), she was found to have suffered multiple bruises, but
the nature of injuries was found to be simple. Even though,
Sumitri Devi PW4 had picked up a stone and had thrown it at
G the appellant-accused no.1, but she had missed her mark.
5. According to the prosecution story, after two shots had
been fired by Dheeraj Verma, appellant-accused no.1, Deepak
Verma, appellant-accused no.2 handed over two cartridges to
H Dheeraj Verma, appellant-accused no.1. The appellant-
DEEPAK VERMA v. STATE OF HIMACHAL
281
PRADESH [JAGDISH SINGH KHEHAR, J.]
accused no.1 then reloaded his gun and shot at Rakesh Kumar
A
(maternal uncle of Kamini Verma) who had by then come into
the courtyard, and was trying to lift Kamini Verma. The shot fired
at Rakesh Kumar (maternal uncle of Kamini Verma) hit him on
the left side of the lower abdomen. The two accused then fled
away. At the time of occurrence, Sonia (PW3, wife of Rakesh
B
Kumar, maternal uncle of Kamini Verma) on hearing the first
shot had also rushed to the courtyard. She tried to assist her
husband Rakesh Kumar and her niece Kamini Verma.
6. Both Kamini Verma and Rakesh Kumar were taken to
the Zonal Hospital, Chamba immediately after the occurrence.
C
Rakesh Kumar was declared dead at the said Hospital at
12:30 hours on the date of the occurrence itself (i.e., on
28.7.2003). He was stated to have died due to a gun shot injury
causing rupture of major vessels and visceral organs leading
to hemorrhagic shock and death.
D
7. The police post, Sultanpur was informed of the
occurrence telephonically, "feading to the recording of Daily
Diary No.4 at 10:30 a.m. on 28.7.2003. ASI Jog Raj PW26
along with other police personnel, on receipt of aforesaid
E
information, proceeded to Zonal Hopital, Chamba. ASI Jog Raj
moved an application to the Senior Medical Officer, Zooal
Hospital, Chamba for seeking medical opinion whether Kamini
Verma alias Doli was fit to make a statement. In the first
instance Dr. D.P. Dogra PW11 gave a report at 12:20 hrs. (on
F
28.7.2003) to the effect that Kamini Verma was not fit to make
her statement. The said opinion was tendered as her pulse rate
and blood pressure, at that time, were not recordable, and also
because, she had no control over her speech. Subsequently;
at 13:00 hrs. on 28.7.2003 itself, Dr. D.P. Dogra PW11
G
declared her medically fit. It was thereafter, that the statement
of Kamini Verma came to be recorded by ASI Jog Raj in the
presence of Dr. D.P. Dogra. The statement recorded was then
read out to Kamini Verma, whereupon, in token of its
c9rrectness, she affixed her right thumb impression on the
H
same. Both Dr. D.P. Dogra PW11 and ASI Joq Rai PW26
282
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A recorded their endorsements on the statement of Kamini
Verma. The statement of Kamini Verma was the basis of
registering FIR No.182 of 2003 at Police Station Sadar,
Chamba on 28.7.2003. Kamini Verma repeated the same
version of the incident to her father Arun Kumar PW2 on her
B way to Amritsar (from Chamba).
8. Kamini Verma, who was originally taken to Zonal
Hospital, Chamba, was referred to Zonal Hospital,
Dharamshala. However, on her discharge from Zonal Hospital,
C Chamba, she was taken for treatment to Ram Saran Dass,
Kishori Lal Charitable Hospital, Amritsar (Kakkar Hospital,
Amritsar) in the State of Punjab. Kamini Verma died at Kakkar
Hospital, Amritsar on 1.8.2003 at 04:00 hrs. In the post-mortem
report of Kamini Verma (Exh.PW13/C) it was opined, that she
had died due to gun short injuries leading to injuries to her
D abdominal viscera and disseminated intravascular bleeding
leading to shock and death.
9. The pellets, recovered from the wounds of Kamini
Verma and from the dead body of Rakesh Kumar at Zonal
E Hospital, Chamba, were handed over to the police. Inspector
Khub Ram PW27, went to the place of occurrence for inquest.
From the spot, i.e., courtyard of the house of Arun Kumar (PW2,
father of Kamini Verma) he collected blood samples from the
floor, two plastic caps, 35 pellets lying on the floor, besides 3
F pellets embedded in a door of the house. Two empty cartridges
were also recovered from outside the gate of house of Arun
Kumar PW2.
10. On the date of occurrence itself, i.e., on 28. 7.2003, .the
G scooter, on which the appellant-accused nos.1 and 2 had made
good their escape was stopped at Bhatulun Morh at a police
"nakka" while they were proceeding towards Khajjiar from
Chamba. Dheeraj Verma and Deepak Verma, appellantaccused nos.1 and 2 were identified. A double barrel gun,
which was in their possession, was found with one live cartridge .
H and one spent cartridge. The gun, the live as well as spent
DEEPAK VERMA v. STATE OF HIMACHAL
283
PRADESH [JAGDISH SINGH KHEHAR, J_.]
cartridges, and the scooter on which they were apprehended,
A
bearing registration no.PB-58-A-0285 were taken into
possession by the police. Both the accused were also taken
into custody. On the personal search of both the accused, four
live cartridges were recovered from the pocket of Dheeraj
Verma, appellant-accused no.1. Based on a disclosure
B
statement made on 31. 7.2003 by Dheeraj Verma appellantaccused no.1, 13 more live cartridges beside four empty
cartridges were recovered from a cupboard in his bedroom.
The licence of the double barrel gun was also recovered from·
their residence.
c
11. The double barrel gun recovered from the appellantaccused nos.1 and 2 was sent to the Forensic Science
Labor"tory, Bharari, Shimla, Himachal Pradesh. In his report,
the Assistant Director opined; firstly, that the double barrel gun
recovered from the accused was capable of firing; secondly,
D
that 3 empty cartridges recovered from the place of occurrence
may have been fired from the recovered gun; and thirdly, that
the pellets recovered may have been fired from the empty
cartridges recovered from the spot.
12. On the completion of investigation, the prosecution
presented a challan in the. court of Chief Judicial Magistrate,
against both the accused, under sections 302 and 323 read
with section 34 of the Indian Penal Code, besides section 27
E
of the Indian Arms Act. The Chief Judicial Magistrate committed . F
the case for trial to the Court of Sessions on 22.10.2003. On
12.1,2004 the Sessions Judge, Chamba, framed the charges,
as were proposed by the prosecution. In order to bring home
the charges, the prosecution examined as many as 27
witnesses. The cumulative effect of the statement of witnesses
G
examined by the prosecution has been narrated in the foregoing
paragraphs. After recording the prosecution evidence, the
statements of Dheeraj Verma, appellant-accused no.1 and
Deepak Verma, appellant-accused no.2 were recorded under
Section 313 of the Criminal Procedure Code. The accused, . H
284 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A besides denying the correctness (or knowledge) of the factual
position, with which they were confronted, alleged that a false
case has been registered against them due to business rivalry.
It is pertinent to mention, that the father of the deceased Kamini
Verma, i.e., Arun Kumar PW2, as also, the father of the
B appellant-accused Dheeraj Verma and Deepak Verma,
namely, Shyam Lal, were admittedly goldsmiths, and were
engaged in the said business.
13. Sessions Trial No.55 of 2003 came to be disposed
of on 30.12.2005 whereby the Sessions Judge, Chamba
C convicted the accused Dheeraj Verma and Deepak Verma for
offences punishable under section 302 and 323 read with
section 34 of the Indian Penal Code, as also, under section 27
of the Arms Act. On the date of their conviction, i.e., on
30.12.2005 itself, after affording an opportunity of hearing, the
D appellants-accused nos.1 and 2 were sentenced under Section
302 read with Section 34 of the Indian Penal Code, to
imprisonment for life and to pay fine of Rs.25,000/- each (in
default of payment of fine, they were to undergo further simple
imprisonment for two years). The appellants-accused nos.1 and
E 2 Dheeraj Verma and Deepak Verma were also sentenced
under Section 323 read with Section 34 of the Indian Penal
Code, to undergo simple imprisonment for a period of six
months and to pay a fine of Rs.1000/- each (in case of default
of payment of fine, they were to undergo further simple
F imprisonment for orie month). The appellants-accused Dheeraj
Verma and Deepak Verma were sentenced to undergo two
years rigorous imprisonment, for the offence punishable under
Section 27 of the Arms Act. The Sessions Judge, Chamba
also ordered, that all the substantive punishments were to run
G concurrently. ·
H
14. Dissatisfied with the order rendered in Sessions Trial
No.55 of 2003 by the Sessions Judge, Chamba on 30.12.2005,
the appellants-accused nos.1 and 2 Dheeraj Verma and
Deepak Verma preferred Criminal Appeal No.27 of 2006
DEEPAK VERMA v. STATE OF HIMACHAL
, 285
PRA_DESH [JAGDISH SINGH KHEHAR, J.]
before the High Court of Himachal Pradesh. Criminal Appeal
A
No.27 of 2006 was, however, dismissed by the High Court on
2.9.2009, on merits, as well as, on the quantum of sentence
imposed on the appellants-accused.
15. Dissatisfied with the order dated 30.12.2005 passed
8
by the Sessions Judge, Chamba in Sessions Trial No.55 of
2003, as well as, the order dated 2.9.2009 passed by the High
Court of Himachal Pradesh in Criminal Appeal No.27 of 2006,
th~ appellants-accused nos.1 and 2 Dheeraj Verma and
Deepak Verma have approached this Court by filing the instant C
appeals.
16. The first and foremost contention advanced at the
hands of the learned counsel for the appellants was, that the
case set up by the prosecution was false and fabricated. It was
submitted, that the facts brought forth by the prosecution clearly D ·
lead to the inference, that there was no involvement whatsoever
of the two accused Dheeraj Verma and Deepak Varma. In so
far as the instant aspect of the matter is concerned, it was the
contention of the learned counsel for the appellants that the
statements of Deepak Kumar PW1, Arun Kumar PW2, Sonia
E
PW3 and Sumitri Devi PW4 reveal, that the two accused were
well-known to the members of the family of the deceased
Kamini Verma. In this behalf it was sought to be asserted, that
according to the prosecution version, the two accused Dheeraj
Verma and Deepak Verma had come to reside in the house
F
of Arun Kumar PW2 along with their father Shyam Lal; as
tenants. According to the learned counsel, it is also the case
of the prosecution, that Deepak Verma, appellant-accused no.2
had been giving home tuitions to the deceased Kamini Verma
and her brother Deepak Kumar PW1. lnspite of being in an G
effective position to identify both the accused on account oHheir
long.past relationship, it was submitted, that the names of the
two accused Dheeraj Verma and Deepak Verma came to be
disclosed, for the first time at 13:00 hrs., through the statement
of the deceased ~amini Verma, which was recorded by the ASI
H
286
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A
.Jog Raj PW26. Stated in other words, it is the contention of
the learned counsel for the appellants, that even though the two
accused were well-known to the entire family of the deceased
Kamini Verma, yet all the family members of the deceased
B
Kamini Vemra remained tight-lipped till the eventual disclosure
of the names of the two accused by Kamini Verma herself, at
the Zonal Hospital, Chamba. It is, therefore, the contention of
the learned counsel for the appellant, that the statements of all
the eye-witnesses (Deepak Kumar PW1, Sonia PW3 and
Sumitri Devi PW4) who were close family members of the
c
deceased Kamini Verma and Rakesh Kumar, and had known
the two accused for a long time, should not be relied upon. It
is sought to be suggested, that all these close relations of the
deceased Kamini Verma must be deemed to have been
tutored, to make false statements against the appellants
0
Dheeraj Verma and Deepak Verma at the instance of the
investigating officers. It is submitted that the crime in question
came to be committed at 10:30 hrs., on 28.7.2003, and yet
none of the aforesaid eye-witnesses disclosed the names of
the offenders. It is sought to be suggested, that the names
E
would have been disclosed only if they had actually witnessed
the occurrence. It is therefore, submitted that none of the
aforesaid eye witnesses actually witnessed the occurrence. It
is, accordingly, the submission of the learned counsel for the
appellant, that the prosecution version deserves to be rejected
F
outright, and the appellants-accused Dheeraj Verma and
Deepak Verma deserve to be acquitted.
17. We have given our thoughtful consideration to the first
and the foremost contention advanced at the hands of the
learned counsel for the appellants, as has been noticed in the
G
foregoing paragraph. The facts, as they unfold from the
prosecution story reveal, that the occurrence took place at
10:30 hrs. on 28.7.2003. Both Kamini Verma and Rakesh
Kumar were taken to the Zonal Hospital, Chamba immediately
after the occurrence. Rakesh Kumar was declared dead at
H
12:30 hrs. on the date of occurrence, i.e., on 28.7.2003 itself.
DEEPAK VERMA v. STATE OF HIMACHAL
287
PRADESH [JAGDISH SINGH KHEHAR, J.]
The condition of Kamini Verma was critical at that juncture. This , A
is evident from the fact that Dr. D.P. Dogra PW11 gave a report
at 12:20 hrs., (on 28.7.2003) to the effect, that Kamini Verma
was not fit to record her statement. The attending doctor had
recorded, that her pulse rate and blood pressure were not
recordable. In the peculiar facts, as have. been noticed
B
hereinabove, it is evident that the first endeavour of all close
family members would have been, to have the two injured
Kamini Verma and Rakesh Kumar treated at the Zpnal
Hospital, Chamba. None of the close family members could
have been expected to proceed to the police station to lodge c
a /eport when both the injured were critical. Full attention for
the welfare of the two close family members would have been
the expected behaviour of all family members. The action to be
taken against the assailants, would have been a matter of
secondary concern. The contention of their not having made any · D
statements at that juncture to the police, cannot therefore, be
considered unnatural. Kamini Verma was declared medically ·
fit at 13:00 hrs., on 28:7.2003 by Dr. O.P. Dogra PW11. She
specifically identified the two accused Dheeraj Verma and
Deepak Verma as the perpetrators of the occurrence. There
is no reason whatsoever to doubt the dying declaration made
E
by Kamini Verma. Besides, the dying declaration of Kamini
Verma, the prosecution endeavoured to establish the guilt of
the accused, by producing three eye-witnesses. Deepak Kumar
PW1, (aged 14 years at the time of occurrence), who was in
the courtyard itself at the time of occurrence was the younger
F
brother of the deceased Kamini Verma. In his deposition, he
reiterated the factual position recorded by Kamini Verma in her
dying declaration. The grand-mother of the deceased, namely,
Sumitri Devi PW4, aged 61 years, is a stamped witness. At
the time of occurrence she was hit by Dheeraj Verma, G
appellant-accused no.1, in her abdomen, chest and on her right
wrist with the butt of his double barrel gun. She also identified
·the accused in her statement. On medical examination she was
found to have suffered multiple bruise~, which could have been
H
288
SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A caused by the butt of a double barrel gun. Additionally, Sonia
PW3 is also an eye-witness whose statement was recorded.
She was the wife of the deceased Rakesh Kumar. She had
come into the courtyard on hearing the first shot fired at Kamini
Verma. The dying declaration of Kamini Verma was
B supplemented by Sonia PW3 as well. The aforesaid three
witnesses, a young boy, the wife of the deceased and an old
grandmother are natural witness, whose presence at the place
of occurrence, does not cast any shadow of doubt. The
prosecution was able to establish the motive of the appellantsC accused in having committed the crime. In so far as the instant
aspect of the matter is concerned, the alleged motive of
declining the marriage proposal of the appellant-accused no.1,
at the hands of his elder brother, appellant-accused no:2
Deepak Verma was reiterated by Deepak Kumar PW1, Arun
Kumar PW2, Sonia PW3 as also Sumitri Devi PW4, as well
D as, by Kamini Verma in her statement recorded by ASI Jog Raj
PW26. It is only on account of the rejection of the aforesaid
marriage proposal that Dheeraj Verma and Deepak Verma,
the appellants-accused nos.1 and 2, as an act of retaliation and
vengeance, jointly committed the offence in question. It is also
E necessary to notice, that no reason whatsoever emerges from
the evidence produced before the Trial Court why the family of
the deceased Kamini Verma and/or Rakesh Kumar would
falsely implicate the accused-appellants nos.1 and 2. The
cumulative effect of all the factors mentioned above, clearly
F negate the suggestions/ submissions advanced by the learned
counsel for the appellants as a part of his first contention. It is,
therefore, apparent that there is no merit in the first contention
advanced at the hands of the counsel for the appellants.
G
18. The second contention advanced at the hands of the
learned counsel for the appellants was limited to the appellantaccused no.2 Deepak Verma. In so far as the second
submission is concerned, it was sought to be asserted that no
role whatsoever has been attributed to appellant-accused no.2
H Deepak Verma. It was pointed out, that as per the prosecution
DEEPAK VERMA v. STATE OF HIMACHAL
289
PRADESH [JAGDISH SINGH KHEHAR, J.]
witnesses, the double barrel gun which came to be fired at A
Kamini Verma and Rakesh Kumar, had remained in
possession of Dheeraj Verma, appellant-accused no.1
throughout the occurrence. All the shots were fired by Dheeraj
Verma, appellant-accused no.1. It was pointed out, that as per
the prosecution story, it was Dheeraj Verma, appellant-accused 8
no.1 alone, who had allegedly fired shots, in the first instance
at Kamini Verma, and thereafter, at Rakesh Kumar. It was
submitted, that none of the shots was fired by Deepak Verma
appellant-accused no.2: It is submitted, that even if the
prosecution story is examined dispassionately, it would emerge C
that Deepak Verma, accused-appellant no.2 was a mere bystander, and had no role whatsoever in the commission of the
crime in question. In order to buttress the aforesaid contention,
learned counsel for the appellants, in the first instance, placed
reliance on State of Uttar Pradesh vs. Sahrunnisa & Anr.
(2009) 15 SCC 452, wherefrom he placed emphatic reliance D
on the following observations:
I
"18. There can be no dispute that these two respondents
were present and indeed their mere presence by itself
cannot be of criminal nature in the sense that by their mere E
presence a common intention cannot be attributed to them.
Indeed, they have not done anything. No overt act is
attributed to them though it was tried to be claimed by one
of the witnesses that when the police party reached there
they were standing on one leg. This also appears to be a F
tall claim without any basis and the High Court has rightly
not believed this story which was tried to be introduced."
Additionally, reliance was placed on Aizaz & Others vs. State
of Uttar Pradesh (2008) 12 SCC 198. In so far as the instant
judgment is concerned, our attention was invited to the following G
observations:
"11 ....