Rama Nand etc. vs The State of Himachal Pradesh

D.B. Lal, J.—This is an application by Rama Nand and others under Article 134(1)(c) of the Constitution for a certificate of fitness for appeal to the Supreme Court. These accused have been convicted for an offence under Sections 302 and 201 of the Indian Penal Code, and Rama Nand has been sentenced to life imprisonment u/s 302 and Shesh Ram and Kali Datt the other two Appellants are sentenced u/s 201 each for rigorous imprisonment for one year and a fine of Rs. 500. Their conviction and sentence passed by the learned Sessions Judge has been confirmed under appeal by a Division Bench of this Court.

The facts alluded to against them in short were that one Sumitra (19 years) who was wife to Rama Nand, was found missing on 14th May, 1972 and these accused falsely alleged that she disappeared in the river Sutlej, perhaps by jumping into it in an act to commit suicide. A strong motive was found against the three accused and the learned Sessions Judges held that Rama Nand was guilty of murder while the other two accused were guilty of screening the offence by concealing and disposing of the dead body. The defence version of suicide was considered devoid of any merit. Since the accused had taken up an avowedly false plea, that was a circumstance utilized against them.

It was found that the dead body of Sumitra was concealed somewhere in the jungle of Ghangar and thereafter it was thrown into the river and the skeleton was discovered by one of the accused himself, namely Kali Datt. The skeleton was duly identified to be that of Sumitra by her father and aunt. Subsequently the postmortem examination was conducted but the doctors were unable to ascertain the sex or the age of the skeleton. Rather it was found that the mandible forming part of the skeleton was that of a child below 10 years of age. Ignoring the medical evidence, the Division Bench believed the circumstantial evidence and found as a question of fact that the accused Rama Nand committed the murder while the other two accused assisted him in screening the offence by disposing of the dead body. In this manner the finding of the learned Sessions Judge was confirmed.

Rama Nand and others have questioned the findings arrived at in the High Court and also before the learned Sessions Judge. Accordingly they have filed the present application for a certificate of fitness for appeal to the Supreme Court.

As observed by their Lordships of the Supreme Court in Sunder Singh Vs. State of Uttar Pradesh, the grant of a certificate would not be a matter of course but the power has to be exercised after considering what difficult question of law or principle is involved in the case which should require consideration by the Supreme Court. It is further observed by their Lordships that the word "certifies" in Sub-Article (1)(V) is a strong word which requires the High Court to look closely into the case to see if any special considerationsarise. If a case does not involve any question of law, then however difficult the question of fact may be, that would not justify the grant of a certificate under Article 134(1)(c) of the Constitution. The learned Counsel has laboured before us and has attempted to depict that the question of fact involved was difficult and the High Court committed an error in arriving at its decision. That would hardly be a ground for granting a certificate of fitness under Article 134(1)(c) of the Constitution. The conviction of the Appellants was based entirely on circumstantial evidence and the High Court found that the evidence pointing to the guilt of the accused was clear, cogent and reliable, and dismissed the appeal, and in such a situation the certificate of fitness cannot be granted as it does not fulfil the requirement of Article 134(1)(c). It is abundantly clear that the High Court cannot pass an order on mere questions of facts for further consideration of the Supreme Court and cannot grant a certificate with that purpose in view. Again, in Sidheswar Ganguly v. State of West Bengal AIR 1958 Supreme Court 143, it was pointed out that granting leave bears a different connotation than granting a certificate. "Certifying" is a strong word and the High Court can only grant a certificate in exceptional circumstances and not merely for decision on a pure question of fact. It is required of the High Court to disclose in its order as to why the discretion conferred upon it under Article 134(1)(c) was invoked and whether it could be stated to be properly exercised see: T.B. Thakore v. The State of Maharashtra 1969 C.A.R. 294 S.C ., When a question of principle has been settled down by the Supreme Court, the application of that principle to the facts of a particular case does not make the question a fit one for appeal to Supreme Court. This is so held in The The State of Kerala and Another Vs. R.E. D''souzha, The mere ground that the impugned decision is considered erroneous will hardly be a reason for granting a certificate of fitness for appeal to Supreme Court see : State of Bihar v. Bhagirath Sharma and Anr. 1973 C.A.R. 229 S.C..

Keeping regard to these principles set down by the Supreme Court, we have to consider as to whether any question of law or principle is involved so that a certificate need be granted. The learned Counsel submitted, that the Appellants were convicted on no evidence. But it is a general statement devoid of any merit. Then he referred to the evidence of doctors and submitted that the same should not have been rejected. He stated that a strong motive was not established on facts made out in the case. The articles of the deceased recovered from the house of the accused could not lead to the inferences drawn by the Court. Rama Nand Appellant left the spot of occurrence for a legitimate reason and the Court could not draw an inference against him. Similarly the post conduct of the Appellants was not a circumstance against him. Then the learned Counsel pointed out that if witnesses were not cross-examined on the identification of the skeleton, the Court could not take notice of that, to conclude that the identification was properly made. The letters of the accused Rama Nand, which he sent to Sumitra, according to the learned Counsel did not furnish a motive for her murder. The relative witnesses could not be believed and the High Court committed an error in believing them. The spot inspection made by the learned Sessions Judge could not be utilised. For this, the finding of the Court was that whatever the learned Sessions Judge saw on the spot he could make a record of the same and could draw an inference based on his ocular observation. The learned Counsel, then, submitted that the recovery of ''parade'' was not proved and there was no evidence for concealment of the body in the jungle. Then he proceeded on to say that the presence of Kali Datt accused at the time of the recovery of skeleton was not a circumstance which could be utilized against him. The learned Counsel then pointed out that the evidence regarding identification of skeleton was unsatisfactory. In short, the learned Counsel submitted that the chain of circumstantial evidence was not complete and no inference of guilt could be deduced. It was also submitted that the defence witnesses were discarded not for valid reasons. Much less to say, all these questions raised by the learned Counsel do not involve any question of law or even of principle which may compel us to grant a certificate of fitness. These are all questions of fact and the attempt has all throughout been to say, that the decision of the High Court was erroneous. The principles regarding circumstantial evidence are well settled by the Supreme Court and these principles were applied by the Court, according to the learned Counsel, not in a correct manner. That would not be a ground for a certificate in favour of the Appellants. In fact, the learned Counsel wants an appraisement of evidence once again to be made by the Supreme Court, and we cannot permit that to be done by granting certificate of fitness under Article 134(1)(c).

For the reasons stated above, in our opinion no case is made out for grant of a certificate of fitness under Article 134(1)(c) and we accordingly dismiss the application.