State Of J&K vs Kulbir Singh
2021 Latest Caselaw 273 j&K

               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                              .....
                                                       CRAA No. 21/2010

                                                      Reserved on: 02.03.2021
                                                    Pronounced on: 10.03.2021


State of J&K                                         ...Appellant(s)

               Through:         Mr. Aseem Sawhney, AAG

                    v/s

Kulbir Singh                                               ...Respondent(s)

             Through:           Ms. Deepika Mahajan, Advocate

CORAM:             Hon'ble Mr Justice Tashi Rabstan, Judge
                   Hon'ble Mr. Justice Vinod Chatterji Koul, Judge

                                JUDGMENT

Koul-J:

1. The present appeal is directed against the judgment of acquittal

dated 16.09.2009, passed by the learned Additional Sessions Judge, Kathua,

(for short "Trial Court") by virtue of which the respondent has been

acquitted from commission of offences punishable under Sections 302 RPC

and 4/25 Arms Act in FIR bearing No.10/2004 of Police Station, Kathua.

2. Appeal has been filed, interalia, on the ground that the

judgment is bad in the eyes of law as the prosecution has succeeded to prove

the motive behind the murder of the deceased. It is stated that the Trial court

has failed to appreciate the prosecution evidence in its true and correct

perspective. It is also stated that the learned Trial court has ignored the

pieces of evidence as well as medical report that are the sufficient proof of

involvement of the accused/respondent. It is submitted that the impugned

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judgment is based on surmises and conjectures inasmuch as it has taken a

hyper technical approach.

3. The brief resume of prosecution case is as under:

4. PW-1 Roop Lal telephonically informed Police Station Kathua

that the accused/respondent, in view of previous enmity, with an intention to

kill, attacked his brother, namely, Rakesh Kumar, with a kirch at about 4.45

PM and inflicted injuries in his abdomen and back resulting in causing

grievance injuries who was shifted to hospital at Kathua where he

succumbed to injuries.

5. On the basis of telephonic information, so received by the

police, FIR No.10/2004 for offences punishable under Sections 307 RPC

and 4/25 RPC, was registered against the respondent and investigation

commenced. The police, after recording the statements of the witnesses as

well as completing other formalities and on completion of the investigation,

found offences punishable under sections 302 and 4/25 Arms Act

established against the accused and accordingly charge sheeted him. The

charges were framed against the accused for commission of offences

punishable under Sections 302 RPC and 4/25 Arms Act.

6. The charge against the accused is that on 04.01.2004 at ward

No. 4 on account of previous enmity and with preparation, he attacked the

deceased, Rakesh Kumar, with kirch and inflicted injuries with such kirch in

his abdomen and back and due to injuries so inflicted he died, thus,

committed offences punishable under section 302 RPC and 4/25 Arms Act.

7. To prove the charges, the prosecution relied upon oral as well

as documentary evidence. The oral evidence relied upon by the prosecution

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are PWs Madan Lal, Om Parkash, Bansi Lal, Mukhtiar Chand, Pumma, Bal

Krishan, K. K. Sharma, Jaffar Ullah Khan, MHC, Mohd Shafi, ASI, Dr. V.

S. Jamwal, Inspector Rovel Singh and Surinder Khadyal ASI/SHO.

8. The documentary evidence relied upon by the prosecution are

seizure memo of dead body (ExPW-RL), receipt of dead body (ExPW RL-

1), seizure of blood stained clay ExPW RL-2, Seizure memo of plain clay

ExPW RS/3, seizure memo of clothes of deceased (ExPW RL/2), seizure

memo of cloths of accused (ExPW 12-JU), disclosure memo (ExPW-SS),

recovery memo of weapon of offence (ExPW SS/1), Suprdnama (ExPW

MS), death report (ExPW RS/4), post-mortem report (ExPW 16/VS),

certificate of resealing (ExPW 10-KK), Aks of weapon of offence (ExPW

SS/3) and the revenue record (ExPW 9/BK/1).

9. To appreciate the grounds taken by the appellant in this appeal,

it is necessary to give brief resume of the evidence produced before the Trial

court by the prosecution in order to find out whether the same has been

properly appreciated by the Trial Court or not, while acquitting the

accused/respondent.

10. PW-1 Roop Lal is the brother of the deceased. He has deposed

that his brother was working with the accused as labourer. Prior to his death,

he had gone for work. He and his wife (PW-2) were at home when at about

4.45 PM, he heard cries near his house. He came out and went on spot where

he saw his brother was being attacked by the accused. On seeing him,

accused ran away. His wife also came on spot and saw Rinku (deceased)

injured, who was bleeding from stomach. They took him to the hospital

where he died. He further stated that the occurrence took place as the

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deceased had asked accused to pay him money. Before death, deceased told

him about the occurrence. The information was given by him to the police

on telephone. The occurrence took place on the back side of his house. To

reach the place of occurrence, he had to cross the road but he jumped the

fence which was at a distance of about 10 to 15 feet from his house. He has

further stated that 200/500 persons had assembled on spot. He took the

deceased to hospital in an auto which came from Dream Park. He further

stated that when the deceased informed him about the occurrence, doctor

was also present at that time in the hospital. He stated that the deceased was

attacked 5 to 7 times in his abdomen and his intestines had come out. His

statement was recorded after 3/4 days of the occurrence by the police. He

further stated that his clothes were also soaked with blood but were not

seized by the police. The weapon of offence was seized. The dead body of

the deceased was seized and the same was exhibited as ExPW RL and was

handover to him.

11. PW-2 Pushpa Devi has deposed that the deceased was her

brother-in-law, who used to work with tractor of accused as labourer. On

12.01.2004, at 8.00/9.00AM early in the morning, Pamma took accused with

him. At 5 P.M, while she was cleaning vegetables at her home, she heard

cries of deceased „mar diya, mar diya‟. She along with her husband (PW-1)

went on the spot and saw that accused was attacking deceased with kirch and

he ran away. The deceased was hit at his abdomen. They took deceased

towards the road and hired an auto. The deceased had asked accused to pay

money, which he had borrowed from him and due to this, he had hit him. On

being cross examined, she stated that in hospital, the deceased in presence of

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doctor told her that he was killed because he asked the accused to pay

money to him which he had borrowed. Police was present there.

12. While going through the statement of both these witnesses (PW

Nos. 1 and 2), we have seen that as per the statement of the brother (PW-1)

of the deceased, he disclosed him about the occurrence before his death.

PW-1 says that the deceased was working as labourer with the accused and

while he demanded money on account of his work he had done, accused

attacked him, while as PW-2 has stated that the deceased before his death

disclosed her about the occurrence and told her in presence of the doctor that

when he demanded money which the accused had borrowed from him,

accused attacked him. Two different versions have been given by these two

witnesses regarding the occurrence and the statement which is claimed to

have been made by the deceased before his death. Both have claimed that

the statement was made by the deceased in front of the doctor. However,

there is no such statement on the record. Both these witnesses have given

different versions, making their presence as well as the claim that the

deceased made the statement to them about the occurrence as doubtful.

13. On analysing the statement of these witness, it is seen that PW-

1 claimed to have witnessed the occurrence which took place on the

backside of his house when he came out on hearing the cries while he was

preparing the vegetables with his wife at 4.45 PM, he had to jump the fence,

which was at a distance of 10 to 15 feet from his house to reach the spot and

about 200/500 peoples had gathered there. His statement is that the accused

was asked by the deceased to pay him money and it was because of the

demand made by the deceased for payment of money that the occurrence in

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question took place. Both the witnesses have further claimed that the

deceased, when taken to the hospital in the injured condition, disclosed to

them in presence of the doctor about the occurrence. There is no statement

of the doctor recorded to show that such a statement was made or

information given by the deceased to this witness. The deceased, according

to these witnesses, was attacked in his abdomen and back with a kirch and it

is claimed by these witness that when they heard cries of the deceased, then

they went to the spot. So, it must have taken some time to jump the fence by

PW-1 as well as PW-2to reach the spot. Occurrence as stated by them took

place on the back side of their house so after hearing cries they came out of

their house and went to the spot. This makes it clear that before these

witnesses came out of the house and proceeded to the spot which was on

back side of their house, jumped the fence and reached the spot, the

occurrence might have already taken place so their claim having witnessed

the occurrence, i.e., having seen inflicting injuries on the abdomen and the

back with the kirch by the accused, appears to be a doubtful statement.

14. In the statement under section 161 Cr.P.C, it is stated that there

was previous enmity between the deceased and the accused; on the basis of

which also, the prosecution story has been set up. It is in the prosecution

story and the statement of these witnesses recorded during the course of

investigation that the deceased was working as a labour with the accused and

the accused was owing money to him on account of work and the deceased

had informed the father of the accused that the accused is involved in taking

drugs, which were the reasons for his having enmity with the deceased and

when the deceased demanded money, accused attacked him, caused injuries

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due to which he died. These witnesses have also claimed that the deceased

informed them before the doctor about the occurrence, but there is no

evidence either recorded during the course of investigation or produced

during the trial, that such statement was made before the doctor by the

deceased. There is no such evidence to prove the same. Even doctor has not

stated about such statement whether the injured deceased was in a fit state of

mind to make such statement, was also a question to be answered or shown

by the witnesses. The prosecution does not claim that the deceased made any

statement regarding occurrence before his death. Had he made any such

statement, Investigating Officer would have recorded the same and would

have also sought opinion regarding the same from the doctor. The absence of

any such opinion of doctor as to whether deceased was fit to make statement

and non-recording of such statement is sufficient to show that the deceased

was not in a fit state of mind to make such statement.

15. PW No. 8, Pumma, has been cited as eyewitness of the

occurrence. It is claimed by the police that he had witnessed the occurrence

and during the course of investigation, he supported the prosecution version

and stated that he and the deceased were working with the accused and the

accused owed money from the deceased, who demanded the money but the

accused refused to pay and the deceased also made a complaint to the father

of the accused that the accused was consuming charas and because of these

reasons on the day of occurrence, accused attacked the deceased in his

presence with kirch. During the course of investigation, he was claimed to

be witness to the occurrence, but when produced before the court, he denied

to be the witness to the occurrence so he was declared hostile despite having

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been witness to the occurrence and could have supported the prosecution

version.

16. PW-16, Dr. V. S. Jamwal, has stated that the on 13.01.2004

autopsy on the dead body of the deceased, identified by the brother of

deceased Roop Lal (PW-1), was conducted by him and Dr. Raj Rishi,

Surgeon, and Dr. Ram Kumar Physician in the District Hospital, Kathua.

The Post-mortem was conducted by the Board from 10 a.m. to 11 a.m. The

alleged cause of death was stabbing by sharp weapon. On post-mortem

examination they observed as under:

"EXTERNAL APPEARANCE:

Length of the body 5‟-9"

Appearance of the body: Average Built.

Signs of Decomposition: Nil.

      Rigor Mortis:             Present.
      Liver Mortis:             Nil.
      Belongings:               Blue Sweater, Sky blue pant, brown
                                under-wear, checked shirt.
      EXTERNAL AND INTERVAL INJURIE:
      -    Penetrating wound Right lower chest over lateral aspect.
      -    Penetrating would over mid back.
      -    Free blood in abdominal cavity.
      -    Right lung injury with frank blood in thoracic cavity.
      -    Liver lacerated.

Th-Orax: Penetrating would in right lateral chest x 4‟‟ deep x 2 cm wide.

Pleura and lung ruptured on right side with frank bllod in lungs. Abdomen: Penetrating would over mid back region, 6‟‟ deep x 2 cm wide.

Liver lacerated with free blood in abdomenial cavity. Opinion: After conducting the post-mortem by team of Doctors, the possible cause of death is lacerated wounds causing injury to vital organ and haemorrhages which led to shock and cardio-respiratory failure leading to death. However the final report will be given after the visceral report is available. Viscerea has been sent for analysis. At this stage, PP prayed that the statement of the witness may kindly be deferred as the FSL report regarding viscera is lying in the office of Medical Superintendent, District Hospital, Kathua. Accordingly, the statement of the doctor is deferred."

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He has further stated that he has brought the post-mortem

Register and FSL report No.504/FSL dated 29.05.2004. As per the post-

mortem Register bearing No. 170 dated 13.01.2004, all the members of the

Board, comprising of himself and Dr. Raj Rishi, Dr. Ram Kumar, have put

their signatures on the post-mortem register. He identifies his signatures and

the signatures of the other two members of the Board. The post-mortem

report is in his hand and bears his signatures. It is marked as ExPW-16-VS.

The post-mortem report on the court file is also marked as ExPW-16-VS. As

per the FSL report no poison was detected in the viscera sent to FSL. The

report is produced by the witness. On 04.03.2004, the police produced the

weapon of offence for his opinion. He has given his opinion on the reverse-

side of the application of the Police. The report was in his hand and bears his

signatures. It is marked as EXPW-16-VS/1. The weapon shown to him in the

court is the same which was shown to him by the Police. The injuries were

sufficient in the ordinary course of nature to cause death of the deceased

Rakesh (Rinku).

On cross-examination, he has stated that the Board was

suspecting some other reasons for cause of death, that is why, they sent

viscera to FSL for chemical analysis, but they were sure that the death

occurred due to the injuries noticed on the body of the deceased. They sent

the viscera to rule out any kind of intoxication or state of mind of the

deceased before his death. Intoxication and state of mind for which they sent

the viscera, is not related to the cause of death. They did not have the smell

from the mouth or other organs of any intoxicant or alcohol or any other

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substance. He did not know the deceased personally and the persons

identifying the dead-body were also not known to him. The Board was not

told about the assailant by anybody including the identifier and Police. The

belongings, such as blue sweater etc., were neither blood stained nor having

any cut marks which has not been noted in the post-mortem report. The

stomach of the deceased was empty. He does not remember whether it was

empty or not? They did not open the stomach. They have not opened the

stomach as the whole stomach has to be seen without knowing the contents

of the stomach. Both the edges of the weapon shown to him are sharp,

however, half of the one side of the weapon was with irregular sharp-edges.

He does not find his signatures on the weapon. He has not mentioned the

name of the weapon in the report EXPW-16-VS/1. The lacerated wound is

caused by a blunt object. The Board has not mentioned in the post-mortem

report EXPW-16-VS that the injuries were sufficient in the ordinary course

to cause death.

17. PW-3 Madan Lal, PW-4 Om Parkash, PW-5 Bansi Lal and PW-

6, Mukhtiar Chand, were declared hostile as they were not eliciting

incriminating material against the accused-respondent. The other

prosecution witnesses have also not supported the prosecution story.

18. This is the whole of the evidence led by the prosecution in

support of charge. The incriminating circumstances were put to the

respondent-accused, to which he stated that the false statements had been

made against him to implicate him in a false and frivolous case. The accused

did not produce any witness in support of his defence.

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19. After hearing prosecution as well as defence counsel, the

learned Trial court vide judgment dated16.09.2009 acquitted the respondent.

20. Heard learned counsel for the parties.

21. Mr. Aseem Sawhney, learned AAG, appearing for the appellant

while assailing the judgment, has reiterated the grounds taken in the memo

of appeal and has submitted that the Trial court has ignored the last

statement(i.e. dying declaration) made by the deceased in presence of doctor

as well as PW Nos.1 and 2. Learned counsel for the appellant has

vehemently argued that even if other witnesses have not supported the

prosecution case and have turned hostile, but there is material piece of

evidence in the shape of the statements of PW Nos.1 and 2, who have stated

about the occurrence which they witnessed and also the

information/statement made by the deceased to them (PW Nos. 1 and 2) in

presence of the doctor immediately before his death, thus, the statement so

made is to be taken as dying declaration, which is sufficient to prove the

charge against the accused.

Neither such statement has been recorded nor the statement of the

doctor to this effect has been made nor is there any proof/certificate of the

doctor to show that the deceased made any statement or he was in a fit state

of mind to make any statement. In the absence of this, it cannot be said that

the deceased made any statement before his death. It was for the prosecution

to establish that the deceased before his death made such a statement. There

being no such proof nor it is the case of the prosecution that the deceased

made such dying declaration. Even during investigation PW Nos.1 and 2

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have not stated so. This statement appears to have been made to make

improvement in their statements made earlier during investigation.

22. Ms. Deepika Mahajan, learned counsel for the respondent, has

vehemently argued that the prosecution has miserably failed to prove its case

and even the dying declaration, upon which much reliance has been placed

by the learned counsel for the appellant, was not proved. She also submits

that the witnesses have made contradictory statements which clearly prove

that the respondent was roped in a case on false and frivolous grounds.

23. The law on the subject is well settled. The scope of interference

as regards acquittals recorded by the Trial court has been discussed and

decided by the Apex Court in the case of "Sambhaji Hindurao Deshmukh

v. State of Maharashtra," reported in (2008) 11 SCC 186. It was held:

"13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra[(1978) 4 SCC 371 : 1979 SCC (Cri) 1], Babu v. State of U.P. [(1983) 2 SCC 21: 1983 SCC (Cri) 332], Awadhesh v. State of M.P. [(1988) 2 SCC 557: 1988 SCC (Cri) 361], Thanedar Singh v. State of M.P. [(2002) 1 SCC 487: 2002 SCC (Cri) 153] and State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] )."

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24. From the above it is derived that while the High Court can review

the entire evidence and reach its own conclusions, it will not interfere with

the acquittal by the Trial court unless there are strong reasons based on

evidence which can dislodge the findings arrived at by the Trial court, which

were the basis for the acquittal and that the High Court has to give due

importance to the conclusions of the Trial court, if they had been arrived at

after proper appreciation of the evidence. It also emerges that the High Court

will interfere in appeals against acquittals, only where the Trial court makes

wrong assumptions of material facts or fails to appreciate the evidence

properly.

25. When we peruse the testimony of prosecution witnesses, we do

not find them to have, in any manner, established the prosecution case.

Hence, it cannot be said that prosecution has been able to prove its case, by

leading clear, cogent, convincing and reliable piece of evidence so as to

prove that the accused was involved in commission of offences charged

against him. Our opinion is based on complete appreciation of testimonies of

prosecution witnesses.

26. From the material placed on record, prosecution has failed to

establish that the accused is guilty of having committed the offence, he

stands charged with. The circumstances cannot be said to have been proved

by unbroken chain of unimpeachable testimony of the prosecution witnesses.

The guilt of the accused does not stand proved beyond reasonable doubt to

the hilt. The chain of events does not stand conclusively established, leading

only to one conclusion, i.e., guilt of the accused.

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27. For all the aforesaid reasons, we find no reason to interfere with

the judgment passed by the Trial Court. The Court has fully appreciated the

evidence so placed on record by the prosecution. The accused has had the

advantage of having been acquitted by the Trial Court. It cannot be said that

the Trial Court has not correctly appreciated the evidence on record or that

acquittal of the accused has resulted into travesty of justice. No ground for

interference is called for. The present appeal is dismissed. Bail bond, if any,

furnished by the accused is discharged.

28. Copy be sent down along with Trial Court record.

                            (Vinod Chatterji Koul)      (Tashi Rabstan)
                                   Judge                  Judge
Jammu
10.03.2021
Rakesh
             Whether the order is speaking:          Yes/No
             Whether the order is reportable:        Yes/No