Jammu & Kashmir High Court
State Of J&K vs Rattanjeet Singh on 10 March, 2021
S. No.509
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 142/2010
Reserved on: 04.03.2021
Pronounced on: 10.03.2021
State of J&K ...Appellant(s)
Through :- Mr. Bhanu Jasrotia, GA
V/s
<
Rattanjeet Singh
't
.....Respondent (s)
Through :- None
Coram:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
Koul-J
1. The present appeal has been preferred by the appellant-State against the
judgment dated 31.08.2010 passed by the learned Sessions Judge, Rajouri
(hereinafter to be referred as the "Trial Court") in case FIR No. 28/2002 registered
with Police Station, Nowshera, for commission of offences punishable under
Sections 302, 201 RPC and 4/25 Arms Act, by virtue of which the respondent-
Rattanjeet Singh, has been acquitted of the aforesaid charges.
2. Briefly stated the facts of the case are that an FIR No. 28/2002 for
offences under Sections 302, 201 RPC and 4/25 A. Act was registered with Police
Station, Nowshera, on 06.04.2002 on the basis of an information received through
reliable sources that accused shot dead his wife Smt. Seema Devi at about 6.15 PM
CRAA No. 142/2010
in his house. After registration of the FIR, investigation was commenced. On its
completion, it was found that on 06.04.2002 PW-Jagdish Singh had given his 12
bore Rifle to PW-Dharam Paul for repairing, who had kept the rifle in his house and
accused Rattanjeet Singh, who happens to be his brother, took out the said rifle in his
absence and went to Forest for hunting. He came back from the Forest empty
handed, reached home and at that time his wife was peeling onions on the roof of
their house, she asked the accused as to why he had come empty handed and told
him that in future she would herself go for hunting. On this, he got enraged and fired
upon the deceased, who died on spot and after the commission of offence, he
concealed the gun inside the house of his brother. The police after having completed
the investigation found the offences proved against the accused and accordingly
presented the Challan.
3. The accused was charged on 08.08.2002 for commission of offences
punishable under Sections 302, 201 RPC and 4/25 Arms Act and formal charge was
framed. He pleaded not guilty and opted for trial. To prove the charge, prosecution
produced oral as well as documentary evidence.
4. Oral evidence of prosecution was PWs Mohan Singh, Babu Lal, Sansar
Singh, Vishwa Nath, S. Prem Singh, Dharam Paul, Santosh Kumari, Puma Devi,
Jagdish Singh, Krishana Wanti, Shakuntla Devi and Tilak Raj and: PWs Raj Kumar,
Dr. Ashok Verma, Smt. Vivek Sharma, Tehsildar, Vinod Kumar, Nazir Hussain
Inspector and S. R. Samual.
Documentary evidence was in the shape of seizure memo of dead body
(EXPW-1/A), receipt dead body (EXPW-1/B), seizure memo of knife and peeled
onions (EXPW-1/C), seizure memo of blood stained cement (EXPW-1/D), seizure
memo of cartridges (EXPW-1/E) and seizure memo of clothes of the deceased
CRAA No. 142/2010
(EXPW-1/F), memo of disclosure (EXPW-3/A), post mortem report (EXPW-18-
M/AV)
5. The Trial Court, on completion of the trial and on appreciation of
evidence, came to the conclusion that prosecution failed to prove the case against the
accused and accordingly acquitted him. The order of acquittal recorded by the Trial
Court has been challenged in this Appeal, inter alia, on the following grounds:
1. that the judgment is against the law and facts.
2. the Trial Court has not properly appreciated the evidence.
3. that there is enough evidence to prove the charge for commission
of offences punishable under Sections 302, 201 RPC and 4/25
Arms Act, against the accused.
6. We have heard learned counsel for the parties and also gone through the
evidence recorded during the trial.
7. To appreciate the grounds taken up in the appeal and the arguments put
forth by learned counsel for the parties, it would be proper to give brief resume of the
evidence produced during the trial.
8. PW-1 Mohan Singh has deposed that deceased was his sister and she was
married to accused. She was murdered by her husband i.e., accused. He came to
know about death of his sister on the same day in the evening when he was at his
home in Village Darila. He went to the house of deceased on the same day at about
8.30 PM and by then police had already reached the spot. Dead body of deceased
was lying on the roof of the house and deceased was having gunshot mark on her
throat. Police seized dead body of the deceased and also seized one knife, a plate,
peeled onions and bloodstained cement. A 303 gun was also seized from the house
of deceased. However, on the next day police recovered a 12-bore gun, but it was
not recovered in his presence. Dead body of the deceased was seized vide memo
EXPW-1/A and it was handed over vide memo EXPW-1/B. Knife and peeled
CRAA No. 142/2010
onions were seized vide memo EXPW-1/C whereas blood-stained cement was seized
vide memo EXPW-1/D. A rifle bullet action along with live cartridges was seized
vide EXPW-1/E. The clothes of deceased were seized vide EXPW-1/F. Accused
might have committed murder of his sister in connection with demand of dowry. His
house is located at a distance of 4 kms from the house of deceased. Accused was
saying that deceased had shot herself dead.
9. PW-2 Babu Lal has deposed that he came to the house of deceased upon
hearing about her death. Her dead body was lying on ground outside her house and
police had already reached there. Police seized a steel plate along with vegetables
contained therein and a knife vide memo EXPW-1/C, which bears his signatures. No
other proceedings took place in his presence.
10. PW-3 Sansar Singh deposed that deceased was wife of accused who had
died due to a gun shot, that was fired by the accused. Accused shot her dead because
she had not satisfied her demand of dowry. Deceased had informed his brother about
the demand of dowry, who in turn revealed it to him. Marriage between the accused
and deceased was arranged by their parents but they solemnized the marriage inside
a temple. When he reached the spot, dead body of deceased was lying on the roof of
cattle shed, police came on spot and seized dead body of the deceased vide memo
EXPW-1/B. The clothes of deceased were seized vide memo EXPW-1/F. During
investigation of the case accused made a statement that he has kept 12 bore rifle
inside the house of his brother and thereafter police recovered it from there.
Statement of accused was recorded by police before recovering the said gun. Memo
of disclosure EXPW-3/A was witnessed by him and it bears his signature. Besides
the gun, police also recovered one live and one empty cartridge.
Rifle was not recovered in his presence. He does not remember the date
on which memo of disclosure was prepared but accused had made disclosure inside
CRAA No. 142/2010
the police station. He does not remember as to who else was present there at that
time. Police had called him to Police Station and told him that a statement of accused
regarding 12 bore gun is to be recorded. After recording of statement, police went to
recover the gun but he did not accompany them. Brother of deceased PW Mohan
Singh had accompanied the police. At the time of recovery he was not present in the
police Station. After ¾ months of the marriage the brother of deceased told him that
accused is demanding dowry but he is not aware about the exact date and month. He
had told so to the police but the same is not recorded in his statement u/s 161 Cr.
P.C. Deceased was not shot dead by the accused in his presence. He is uncle of the
deceased.
11. PW-4 Vishwa Nath deposed that deceased was his niece. About one
year ago he came to know that some firing had taken place inside the house of
accused. He along with a number of other people, went to the spot and found that
dead body of deceased was lying in a pool of blood on the roof of cattle shed. SHO
and other police officials had reached the spot. Relations between the deceased and
accused were not good because accused used to make demand of dowry from the
deceased and would sometimes beat her up. Police seized dead body of deceased
vide seizure memo EXPW-1/A and handed over dead body to brother of deceased
PW Mohan Singh after its post mortem vide EXPW-1/B. Both these documents bear
his signatures.
His house is located at a distance of 3.5 kilometers from the house of
accused. Deceased and some other people of the village told him that accused was
harassing her in connection with demand of dowry. He heard this about 2/4 months
before the occurrence. He cannot tell the names of the persons who told him so. They
had not lodged any complaint with regard to the conduct of the accused.
CRAA No. 142/2010
12. PW-5 S. Prem Singh on 6.4.02 he heard cries coming out from the house
of accused, he along with his wife, went to the house of accused where he saw that
deceased wife of accused was lying in a pool of blood on the roof of house. Police
came there in his presence and they enquired from the accused, who brought out a
303 rifle from his house and produced it before the police. On 8.4.2002 police seized
a licence in respect of 12 bore rifle from the house of brother of accused namely, PW
Dharam Paul vide memo EXPW-5/A.
In his cross examination he stated that police have never recorded his
statement.
13. PW-6 Dharam Paul has deposed that accused is his brother. On 4.4.2002
village Sarpanch Sh. Jagdish Singh handed over to him a 12 bore rifle along with its
licence for its repair. He got it repaired from a gun factory at Marjola village. On the
same day he brought the rifle back to his house after getting it repaired. On 5th he
along with village Sarpanch got busy in connection with settlement of some dispute
and on next day he went to Jammu in connection with some personal work. On 7th he
came back to his home and found that police had taken away the said rifle in his
absence. When he had gone to Jammu file was in his house and he had not handed it
over to the Sarpanch. On 8th police seized a licence in respect of the said rifle vide
memo EXPW-A. Rifle shown to him in court mark-G is the same rifle. Police had
given him a 303 rifle in his capacity as a member of village defence committee. He
was also allotted 100 cartridges. He did not use any of these cartridges. In his
absence, on 6th police had seized this 303 rifle as well; when he came back from
Jammu he handed over 50 cartridges along with the rifle.
In his cross examination he stated that 12 bore and 303 rifles were
seized by the police in his absence.
CRAA No. 142/2010
14. PW-7 Santosh Kumari has deposed that accused is her brother-in-law,
while she was cutting grass in the fields, she heard some sound of gun fire coming
out of her house and a number of people ran towards her house. She also went there.
She found deceased dead over there and she started crying. The witness was asked
repeatedly as to how the deceased died but she kept mum. Deceased was her sister-
in-law and she was residing separately from her. Her house is located at a distance of
half a kilometer from the house of deceased. She was declared hostile and cross
examined by ld. PP. In her cross examination she had stated that on the day of
occurrence her husband had gone to Jammu and she along with her children was
working in the fields. She denied the suggestion that accused had taken a 12 bore
rifle from their house. She also denied the suggestion that she had gone to the house
of deceased in order to enquire about her mother-in-law. She also denied the
suggestion that when she was massaging her mother-in-law, the accused came there
armed with 12 bore rifle and due to gun shot the deceased died. She further stated
that she was not present on spot at that time. She denied the suggestion that due to
relations she is making a false statement. She also denied the suggestion that instead
of 12 bore rifle the accused produced another rifle before the police.
15. PW-8 Pumi Devi has deposed that accused is her brother-in-law and he
was married to deceased. On the day of occurrence, she had gone to graze the cattle
and there she heard sound of gun fire; when she came back to her house, deceased
was lying over there; she along with deceased were living in a joint family. That she
could not come to know as to how the deceased had died. The witness was declared
hostile. In her cross examination she stated that PW Santosh Kumari is residing at
some distance from her house and that she had not come on spot. She denied the
suggestion that her mother-in-law was unwell and PW Santosh Kumari had come to
CRAA No. 142/2010
enquire about her. She denied the suggestion that accused had fired upon the
deceased in her presence. She further stated that accused had gone to the market at
that time. When she came to her home accused was not present over there. She
denied the suggestion that she is deposing falsely because of relationship with the
accused. She also stated that police did not seize any rifle in her presence.
In her cross examination by ld. Defence counsel she stated that accused
had married deceased out of his own will and it was a love marriage. There was no
dispute between the couple.
16. PW-9 Jagdish Singh in his statement deposed that he is Sarpanch of
village Panchyat Batnu. On 6.4.02 a number of people from the village had gathered
in the house of accused and he also went there. He saw that dead body of deceased
Seema Devi W/o accused was lying on the compound of his house. About 4/5 days
before the occurrence he had given his rifle to PW Dharam Paul who was going to
village Manjola for getting it repaired from gun factory. PW Dharam Paul sent him a
message that he had got rifle repaired but he could not collect it due to some
engagement. PW Dharam Paul had gone to Jammu on 5 th and on 6th of April the
occurrence took place. Accused Rattanjeet Singh had taken the rifle from the house
of PW Dharam Paul and after the occurrence police seized the same from the
accused. The witness identified the rifle shown to him in the court.
In his cross examination by defence counsel, he stated that he was told
by some children and by the police that accused had taken his rifle. Rifle was not
recovered and seized in his presence. He cannot tell whether the rifle was seized by
police from his house in his absence. Relationship between the deceased and accused
was good and he used to visit their house.
CRAA No. 142/2010
17. PW-10 Krishana Wanti in her statement deposed that accused is his son
and deceased was her daughter-in-law and she had died. On the day of occurrence
she was unwell and she heard the sound of gun fire and when she came out of her
room, she found that deceased had died. No other person was present there at that
time. She cannot tell as to who had fired at the deceased. The witness was declared
hostile and cross examined by ld. PP. In her cross examination she stated that her
husband had got the marriage between the accused and deceased arranged. The
marriage was solemnized in a Gurudwara as per the wishes of deceased and accused.
There was no dispute about dowry between the two. On the day of occurrence, no
dispute had taken place between the deceased and the accused in respect of dowry.
She denied the suggestion that at the time of occurrence she was present on the roof
of the house while PW Santosh Kumari was massaging her and that deceased was
also present there. She also denied the suggestion that accused came over there
armed with 12 bore rifle and that he fired at deceased because he was having dispute
with her due to demands of dowry. She also denied the suggestion that accused
concealed the 12 bore rifle and kept 303 rifle in its place.
In his cross examination by learned defence counsel she stated that
relationship between the deceased and accused was very cordial.
18. PW-11 Raj Kumar SGC in his statement deposed that in the year April
2002 he was posted at P/S Nowshera. At the instance of Nowshera Police he took the
photographs of dead body of the deceased and after developing the same he handed
over the same to SHO Police Station Nowshera. Photographs are marked as mark R-
1 to R-10.
CRAA No. 142/2010
In his cross examination he stated that films of these photographs might
be lying with police Photo Cell of Nowshera. These photographs do not bear any
special mark, so as to prove that the same have been taken by him.
19. PW-12 Shakuntla Devi in her statement deposed that deceased Seema
Devi was her daughter and she was married to the accused. Even before her marriage
with the accused a relationship had developed between the two and thereafter they
entered into wed lock in a court. Deceased gave birth to a daughter. On coming to
know about the death of deceased she went to her house. Accused had shot her dead
and she cannot tell as to why he shot her.
In her cross examination by ld. defence counsel she stated that relations
between the accused and deceased were good. She was told by the people on spot
that deceased was shot dead by the accused.
20. PW-13 Tilak Raj in his statement deposed that deceased was his daughter
whereas accused is his son in law. Accused has committed the murder of deceased in
a brutal manner. Occurrence did not take place in his presence. However, he came to
know about it later on. In fact accused had raped her daughter even before the
marriage and when a daughter was born to her, accused committed her murder.
Dowry was also the reason for committing the murder of the deceased. Accused had
married the deceased in a Gurudwara, as such, there was no exchange of dowry.
When he heard about the death of her daughter, he went to the house of accused and
found that dead body of deceased was lying on a cot and bullet had pierced through
her back. Police was also present at spot.
In his cross examination he had stated that police recorded his
statement and in his statement to the police he had stated that accused had raped his
daughter before the marriage and that after marriage, she was harassing her in
CRAA No. 142/2010
connection with dowry demands. However, same is not written in his statement
recorded u/s 161 Cr.P.C. He also denied having told the police that his daughter had
never made any complaint against her husband and that there was no demand of
dowry from her or from her husband. It was a love marriage between his daughter
and the accused. He never lodged any report in connection with the rape committed
upon her daughter by the accused before the marriage. He denied the suggestion that
he is deposing against the accused at the instance of public.
21. PW-18 Dr. Ashok Verma stated that he has conducted post mortem of
deceased Seema Devi on 7.4.2002 at 10 AM. He found the following injuries on the
person of deceased:-
1. Inlet wound; small oval shape approximately 2cmx1.5cm in size, one in
number located in the centre of supra sterna notch of the neck with well
defined collar, with irregular and inverted margins scorched with black
margins surrounded by blackening and superficial bruise 4 in Nos one cm in
diameter on the left side of the main wound. Underlying tissue were exposed,
underlying muscle are charred and wound filled with semi clotted blood. The
wound was following a bright pink track causing injury to the trachea and
surrounding vessels. Track was following left to right route, above to down
and coming out from the 4th inter costal space.
2. Outlet wound:- An irregular lacerated wound 5cm left to the middle line of
the spine in the 4th inter-costal space on the posterior aspect size
approximately 4cm x 2cm causing fracture of 4 th rib. Underneath of the wound
communicated with the inlet wound.
After going through the FSL report, he opined that deceased had died
due to gunshot wound puncturing the trachea and its surrounding blood vessels
CRAA No. 142/2010
leading to shock and finally cardio respiratory failure. Duration of the death was
within 04 to 48 hours at the time of post mortem examination. The fire had been shot
from a close of range of six feet distance. He proved the post mortem report EXPW-
18-M/AV. He further stated that these injuries are sufficient in the ordinary course to
cause death.
In his cross examination by defence counsel, he stated that it could not
be said whether the fire was intentional or accidental. That considering the nature of
the entry wound and the exit wound, the shot would have been made from a higher
level but in no case it could be self inflicted. That duration of death mentioned from
04 to 48 hours was because of physical and clinical examination and colour of blood
chotwads recovered/traced from the wounds. The colour of blood remains red within
Ist four hours of the death till it fully clots in such an extensive wound and after that
it starts changing its colour from red to black and remains so up to 48 hours and
thereafter it would re-dissolved. That he is stating so on the basis of Modi's Medical
Jurisprudence.
22. PW-19 Smt. Vivek Sharma Tehsildar in her statement deposed that in
the year 2002, she was posted as Tehsildar Nowshera, a sealed packed was produced
by SHO before her which was re-sealed by her. In the capacity of Magistrate she had
addressed an authority letter to FSL which is not on record of the file. The photo
copy produced by the Ld. PP bears her signature.
In her cross examination she stated that documents which were prepared
in respect of re-sealing have not been shown to her in the court as such, she cannot
tell as to which seal was put by her and where those seals were kept.
23. PW-20 Vinod Kumar in his statement deposed that in the year 2002 he
was posted as SHO P/S Nowshera, he conducted the investigation of the case, he
CRAA No. 142/2010
registered FIR EXPW-S and thereafter proceeded to the place of occurrence, he
prepared the site map EXPW-S/1 and seized the dead body of deceased vide memo
EXPW-S/2, he handed over dead body of deceased after its post mortem to heirs of
deceased vide receipt EXPW-S/3, he prepared the site map of the place wherefrom
12 bore rifle was recovered, which is marked as EXPW-S/4, plate, knife along with
vegetables was seized vide memo EXPW-E/C and the blood stained cement seized
vide memo EXPW-1/D. During the search of the house of accused a bullet action
rifle along with four cartridges and one magazine was recovered vide memo EXPW-
1/E. Clothes of the deceased were seized vide memo EXPW-1/F. Accused made the
disclosure that he has kept 12 bore rifle in the house of his brother PW Dharam Paul.
In this regard memo of disclosure EXPW-3/A was prepared. Thereafter on the basis
of this disclosure statement of accused the rifle was recovered and seized vide
EXPW-5/5. PW Dharam Paul produced licence of gun which was seized vide memo
EXPW-A. Photographs of the dead body were taken which are marked as mark R-1
to R-10. He prepared the death report EXPW-S/6 in respect of the deceased. He sent
the seized articles for chemical analyses to FSL and obtained the post mortem report.
He recorded statements of PWs Mohan Singh, Vishwa Nath, Babu Lal, Sansar
Singh, Pritam Singh, Pumy Devi, Santosh Kumari, Jagdish Singh, Babu Ram and
Krishana Wanti u/s161 Cr.P.C. The witness identified the seized rifle, seized clothes
of deceased, seized cartridges, seized blood stained cement the seized 12 bore rifle.
In his cross examination stated that no body had given any report with
regard to the occurrence. However, he received information from reliable sources.
No reason for sending the FIR to court after two days is recorded. However, 7 th of
April was a Sunday; there are only three eye witnesses to the occurrence and their
names are PWs Santosh Kumari, Pumi Devi and Krishana Wanti. That due to some
pre-occupation there was some delay in recording statements of these witnesses u/s
CRAA No. 142/2010
161 Cr.P.C. None of the brothers of the deceased had told him that accused was
harassing the deceased. PW Tilak Raj in his statement recorded u/s 161 Cr.P.C had
stated that deceased had never made any complaint against her husband nor had she
told him about any demand of dowry. This witness had never told him that accused
had committed rape upon the deceased before marriage.
24. PW-21 Nazir Hussain Inspector in his statement deposed that he has
conducted part investigation of the case, he recorded statements of the parents and
brothers of the deceased as also the statement of the photographer who had taken
photographs of the place of occurrence. He also obtained the report of FSL and
thereafter he handed it over to SHO.
In his cross examination he stated that statements of the witnesses
recorded by him had not been recorded earlier by anybody. He cannot tell as to why
this had happened. These witnesses did not express any reason for this before him.
25. PW-22 S.R. Samual stated that he has produced the challan in respect of
the subject case after having satisfied himself about the investigation. Offences u/s
302, 201 RPC and 4/25 A Act were found proved against the accused.
In his cross examination he stated that his satisfaction is based upon the
investigation conducted by the investigating officer. He has not conducted any
separate investigation.
26. The charge against the accused is that on 06.04.2002, he fired upon his
wife, killed her and after committing the crime, he destroyed the evidence by
replacing the gun and told his family that deceased fired upon herself with the
substituted gun.
CRAA No. 142/2010
27. In order to prove the charge, the prosecution relied upon eye witness
account on three witnesses, i.e., PWs, 7, 8 and 10 and also relied upon the
circumstantial evidence. So far as the eye witnesses account are concerned, they did
not support the prosecution version. PWs No. 7, 8 and 10, as per the prosecution
case, were present on the spot when the occurrence in question took place but when
they were produced before the Trial court, they did not support this version of the
prosecution. Though, they were cross examined, but nothing could be extracted from
them to support the prosecution version. The Trial Court had considered the
statement of these witnesses and rightly observed that the said witnesses have not
supported the prosecution version.
28. The circumstantial evidence in this case produced by the prosecution is
the disclosure statement stated to have been made by the accused and recovery of
weapon of offence, i.e., 12 bore rifle pursuant to the said disclosure statement. PWs-
Mohan Singh and Sansar Singh are the witnesses to the disclosure memo and as per
the prosecution case, the said disclosure was made by the accused while in custody
of the police in presence of the said witnesses. PW-Mohan Singh, brother of
deceased, has not stated anything in his statement about the said disclosure alleged to
have been made by the accused. He said that 12 bore rifle was recovered by the
police but he, however, has stated that the same was not recovered in his presence.
He (Mohan Singh) is the witness to the disclosure as well as to the seizure memo and
the case of the police is that accused made disclosure in his presence and pursuant to
the said disclosure 12 bore rifle, weapon of offence, was recovered by the police at
the instance and identification of the accused in presence of the said PW-Mohan
Singh but the said PW-Mohan Singh, who is also brother of deceased has neither
supported the prosecution version about the disclosure having been made by the
accused or the recovery made in presence of the said PW-Mohan Singh. PW-Mohan
CRAA No. 142/2010
Singh, therefore, neither supported the disclosure statement made by the accused nor
the recovery effected thereupon. PW-Sansar Singh, who is the witness to the
disclosure memo states that during the investigation, accused made a statement that
he kept 12 bore rifle in the house of his bother and thereafter the same was recovered
by the police. He admitted the correctness of the disclosure statement EXPW-3/A but
in cross examination he stated that the rifle was not recovered in his presence. He
states that disclosure statement was made by the accused in the police station and he
was called by the police, who told him that the accused was to make a statement in
respect of 12 bore rifle. He did not accompany the police at the time of recovery of
the said rifle. PW-Babu Lal is another witness to the seizure of rifle but he has not
stated anything about the recovery of the rifle. From the statements of PWs-Mohan
Singh, Babu Lal and Sansar Singh, it can be safely said that the police have failed to
establish that the accused made a disclosure statement and pursuant to the said
disclosure statement, recovery was effected. Disclosure made by an accused while in
police custody is admissible in evidence in terms of Section 27 of the Evidence Act
to the extent of discovery of a fact on the basis of said disclosure statement. The
conditions necessary for application of Section 27 of the Evidence Act are:-
1. The fact of which the evidence is sought to be given must be relevant
to the issue.
2. The fact must have been discovered in consequence of some
information received from the accused.
3. The person giving the information must be accused of an offence.
4. He must be in the custody of police officer.
5. The discovery of a fact in consequence of information received from
accused in custody must be deposed to.
CRAA No. 142/2010
6. and thereupon that portion only of the information which relates
distinctly to the fact discovered can be proved.
29. What is stated above, in this case none of the witnesses to the recovery,
i.e., PWs-Mohan Singh and Babu Lal have supported the prosecution version, while
PW-Mohan Singh has denied the factum of recovery of rifle in his presence and PW-
Babu Lal does not say anything about the recovery. In view of the statements made
by these witnesses, the recovery of rifle pursuant to the alleged disclosure becomes
highly doubtful and the same has not been proved. It is evident from the evidence
recorded that the fact that the gun being in the house of PW-Dharam Paul was within
the knowledge of not only the witnesses but also within the knowledge of PW-
Jagdish Singh, owner of the weapon. The conditions, therefore, necessary for
applicability of Section 27 of the Evidence Act are not fulfilled, thereby making the
disclosure statement of the accused EXPW-3/A inadmissible in evidence.
30. Another circumstantial evidence, which has been collected by the
prosecution in this case, is the report of postmortem and also the report of ballistic
expert. From the evidence led by the prosecution, it is proved that deceased had died
and her death was homicidal and not natural. Medical witness, PW-Dr. Ashok
Verma, has given an opinion that the fire had been shot in this case from the distance
of six feet and the same could not have been self inflicted. The ballistic expert,
however, has written in his report that range of firing was point blank. As per
medical evidence, the death of deceased had taken place due to bullet injury, whereas
ballistic expert has also written in his report that hole present on the shirt of deceased
at the time of occurrence could have been caused due to passage of gun shot fired
from 12 bore rifle. It is thus, therefore, proved that death of deceased had been
caused due to gunshot injury fired from seized 12 bore rifle. There is, however, no
CRAA No. 142/2010
evidence on record to connect the accused with firing of gun shot. Neither eye
witnesses have supported the prosecution version nor the circumstantial evidence has
proved it. The prosecution failed to prove that recovery of weapon of offence was
effected pursuant to disclosure made by the accused. The death of deceased due to
gunshot injury was to be proved by showing the link between accused and death of
the deceased. This link is missing and the prosecution has failed to prove the same.
31. As has been stated above, the prosecution story is that when the
deceased came back empty handed from the forest after hunting, his wife told him
that she would go herself for hunting and on this the accused enraged and fired upon
her and committed her murder. The prosecution has failed to prove this story.
During the trial, however, prosecution tried to develop a new story that the relation
between accused and his wife was not good as she could not fulfill his demands of
dowry and it was because of the failure of the deceased to fulfill the demand of
dowry of the accused that he killed her. PWs Sansar Singh, Vishwanath and Tilak
Raj in their statements tried to show that there was a dispute between accused and his
wife over the demands of dowry. PW-Sansar Singh stated that accused had
committed murder of his wife as she could not meet his demands of dowry, but he
has no personal knowledge about the demands of dowry as he says that deceased had
complained to his brother in this regard who in turn narrated the same to him. His
knowledge is based upon hearsay, as such, inadmissible in evidence. Similarly, PW-
Vishwanath stated that the relation between accused and the deceased was not good
because accused used to beat her for not bringing the sufficient dowry. However, the
witness in his cross examination stated that he heard about it from some people about
2/4 months before the death of the deceased. This witness has therefore, also no
personal knowledge about the demands of dowry and his knowledge is only hearsay,
thus, not admissible in evidence. PW-Tilak Raj, the father of deceased, stated that
CRAA No. 142/2010
accused committed the murder of his daughter on account of demand of dowry. He
gave another twist to the tale by stating that accused had committed rape on deceased
before solemnizing marriage with her. The witness himself stated that he had not
given any dowry at the time of marriage of his daughter. There is evidence on record
that the marriage between accused and deceased was not arranged one but was a love
marriage and, therefore, there was no exchange of dowry. There is no evidence on
record to prove any motive whatsoever for the accused to have committed the
murder of deceased. Although motive is not necessary to be proved in a case of
murder, yet in the absence of any reliable evidence against the accused, the absence
of any motive for the accused to commit the alleged crime assumes great importance.
32. In view of the discussion made above, we do not find any merit in the
present appeal. In the result, the appeal is dismissed.
33. Registry to send back the Trial Court record forthwith.
(Vinod Chatterji Koul) (Tashi Rabstan)
Judge Judge
JAMMU
10.03.2021
Vijay
Whether approved for reporting? Yes/No.
VIJAY KUMAR
2021.03.10 12:52
I attest to the accuracy and
integrity of this document
