Reserved On: 10.03.202 vs Parshotam Kumar And Others
2021 Latest Caselaw 333 j&K

                 HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU
                              ...
                        CRAA no.117/2013

                                                    Reserved on: 10.03.2021
                                                 Pronounced on: 19.03.2021
State of Jammu & Kashmir
                                                          .........Appellant(s)
                                      Through: Mr Aseem Sawhney, AAG

                                   Versus
Parshotam Kumar and others
                                                          ......Respondent(s)
                                      Through: None


CORAM:
     HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE
     HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE


                              JUDGEMENT

Koul J:

1. Feeling aggrieved and dissatisfied with the judgment dated 23.02.2013,

passed by the Additional Sessions Judge, Jammu, acquitting

respondents herein, the State of J&K has preferred the instant appeal.

2. Respondents 1 to 3 were facing charge under Sections 302/498-A/34

RPC and respondent no.4 under Section 302/109/498-A RPC in case

FIR No.69/2007.

3. It is worthwhile to mention here that the entire prosecution case is based

on circumstantial evidence. The Supreme Court, while dealing with the

cases of circumstantial evidence in Sharad Birdhichand Sarda v. State

of Maharashtra (1984)4 SCC 116, has held that the onus was on the

prosecution to prove that the chain is complete and infirmity or lacuna

CRAA no.17/2013

in prosecution case cannot be cured by false defence or plea. The

conditions precedent before conviction could be based on

circumstantial evidence, which must be fully established, which are:

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

4. Adverting to the case in hand, it is seen that prosecution had tried to

project three types of evidence: one in the shape of the statements of

the relatives of the deceased and statements of the persons residing in

the neighbourhood of deceased; second statements of Namberdar,

Sodagarmal, and Member Panchayat, Bansi Lal, and Sarpanch, Yash

Pal; and third in the shape of evidence of medical expert and seizure

of weapon of offence in the shape of PW Sodagarmal, PW Bansi Lal

and PW Yash Pal regarding seizure of weapon of offence i.e. rope.

5. Let the above evidence projected before the Trial court be discussed

with the statements of prosecution witnesses.

6. Coming to the statement of relatives, i.e., father Puran Chand, Sureshta

Devi, sister, PW Ghulam Hussain, PW Pushpa Devi, another sister. PW

Puran Chand stated that at the time of marriage he had given the dowry

to deceased as per his capacity. The relation remained cordial between

CRAA no.17/2013

deceased and respondent no.4 for 1 ½ years and thereafter respondent

no.4 started demanding dowry of Rs. 50,000/-. A case was filed before

Women's Cell by deceased that respondent/accused did not pay her

maintenance. Thereafter the matter got compromised and deceased

along with children went to her in-law's house. During the time

deceased was staying with Puran Chand, she wrote a letter to

Commanding Officer that respondent, Kishori Lal, is not paying her

maintenance. Kishori Lal came on leave and on the intervention of

Namberdar, Sodagar Mal, member panchayat, Bansi Lal, and Sarpanch,

Yash Pal, deceased along with children went along with Kishori Lal

and after 3-4 days, he came to know that deceased had died.

7. Coming to the statement of PW Sureshta Devi; she stated that accused

demanded Motorcycle, Cooler, Fridge, Almirah and gold in the

marriage. She had also narrated the fact that the deceased had sent a

letter to Commanding Officer regarding the accused No.4 and the

Commanding Officer on receiving the letter sent the accused, Kishori

Lal on leave. Accused, Kishori Lal, came along with Namberdar and

Sarpanch of the village who guaranteed regarding the behaviour of the

accused, as such they sent the deceased with him.

8. PW Ghulam Hussain had stated that accused used to demand dowry

from the deceased and he came to know about beating of deceased by

accused because the deceased was residing in his locality, who used to

tell her about this. He also stated that when the accused Kishori Lal

went to take the decease back, the father of the deceased called him and

he too went there, where one Panch and Namberdar were present and

CRAA no.17/2013

were asking the said Puran Chand to send the deceased to the house of

the accused on their responsibility. In his cross examination he stated

that the parents-in-law, brother-in-law of the deceased never beat her in

his presence and accused never demanded any dowry in his presence.

9. PW Pushpa Devi, another sister of the deceased, has stated that

Parshotam Kumar is the brother-in-law of the deceased. After marriage

the accused used to beat the deceased and demanded dowry. She further

narrated that she wrote a letter to Commanding Officer of the

respondent No:4. Thereafter respondent No:4 Kishori Lal came on

leave and came to the house of in laws to take the deceased back. Panch,

Sarpanch and Namberdar of the area were along with him and on their

guarantee father of the deceased sent the deceased back. All the

accused/respondents used to ask the deceased to bring Rs. 50,000/-,

which the deceased denied.

So, the question arises whether the said Namberdar, Panch, and

Sarpanch came with the said Kishori Lal to the house of Puran Chand

to take the deceased back. In order to appreciate this evidence the

prosecution had also kept the said Sodagar Mal, Bansi Lal and Yash Pal

as the witnesses. The story of the prosecution is that respondent No.4

Kishori Lal went along with the Panch, Sarpanch and Namberdar to the

house of Puran Chand in order to take the deceased back. Whether this

fact is authenticated by the statements of said Sodagar Mal, Bansi Lal

and Yash Pal, same needs to be seen and appreciated.

10.PW Sodagar Mal stated that on 14.06.2007 the deceased died; how she

died he has no knowledge. He was the Namberdar of the village. Police

CRAA no.17/2013

took his signatures forcibly in the Police Station. All his signatures were

obtained forcibly. He has turned hostile in the Court and in his cross

examination in the court he had stated that he has not heard regarding

the quarrel in respect of the accused, Kishori Lal. Nothing happened in

his presence regarding any demand of dowry.

11.PW Bansi Lal has also turned hostile in the Court and stated that he has

no knowledge with regard to the occurrence. He also stated that police

came and he and Sodagar Mal were called and accused, Kishori Lal and

Parshotam, were weeping. Nothing happened in his presence. He

further stated that accused neither made any demand of dowry nor any

talk of dowry took place in his presence.

12.Coming to PW Yash Pal Sharma, he being the Sarpanch of the village,

turned hostile in the Court. He stated that he had no knowledge whether

any quarrel took place between deceased and accused. No quarrel

between deceased and accused took place in his presence.

13.From the statements of these witnesses, it is clear that the prosecution

story and the statements of the witnesses Puran Chand, Surishta Devi,

Ghulam Hussain and Pushpa Devi, are belied by the statements of these

three witnesses; upon which it is alleged that they have given the surety

and, on their responsibility, the said Puran Chand had sent back the

deceased to the house of accused. The statement of Puran Chand,

Surishta Devi, Pushpa Devi, recorded under Section 161 Cr.P.C and the

FIR registered in the case clearly reflects that whatever these witnesses

have stated in the Court were not in their statements given under section

161 and nothing of that sort is reflected in the FIR. The knowledge

CRAA no.17/2013

regarding demand of Rs. 50,000/- does not reflect in the under Section

161 Cr.P.C.-statements of Surishta Devi, Puran Chand, and Pushpa

Devi.

14.The statement given by Surishta Devi in the Court that she had seen

mustard seed in the eyes of deceased at the time of seeing the dead body

of the deceased, these words were not reflected in her statement under

section 161 Cr.P.C.

15.Though it is a settled law that statements of the close witnesses cannot

be brushed aside simply that they are close relatives and their sole

object is to see the conviction of the accused persons. It is settled law

that statement of these witnesses cannot be negated but needs to be

taken on precaution and with care. Though the parents and relatives are

the best persons who can narrate the fact of dowry but their statements

should inspire confidence. Furthermore, the statements must not look

as if they are improvements and embellishments in the prosecution

case. The statements of these witnesses, being the relatives of the

deceased, clearly reflect that there are improvements and exaggeration

in their statements and their statements are belied by the statements of

PW Sodagar Mal, PW Yash Pal and PW Bansi Lal.

16.Coming to the next point that the string cord has been recovered on the

disclosure of the accused persons. PW Sodagar Mal and PW Bansi Lal

have been kept as witnesses to the said seizure. Both the witnesses have

turned hostile in the Court of law. PW Sodagar Mal had stated that

although the seizure memo of rope (String) bears his signature but they

have been obtained forcibly against his consent. He denied the contents

CRAA no.17/2013

of memo of disclosure statement and also memo of recovery, though

admits his signature on the same. Furthermore, PW Bansi Lal has also

stated that the contents of seizure memo of the string are not correct and

no seizure memo of rope and string was prepared in his presence.

17.Thus, from the statements of these witnesses the story of the

prosecution regarding disclosure statements and recovery of the string

in presence of the witnesses is dashed to ground and creates a dent in

the prosecution story.

18.It is the prosecution story that the deceased was killed on 14.6.2007 and

accused/respondent No.4, Kishori Lal, had left for his posting on

06.06.2007. It is also the prosecution story that accused Pooru Devi,

Parshotam and Mulakh Raj killed the deceased by strangulation on

14.6.2007. It is further story of the prosecution that accused Parshotam

put string in the neck of the deceased and accused Pooru Devi and

Mulakh Raj caught hold of legs of the deceased. It is important to note

that what is the actual source of this information to the I.O. as it is only

the statement of the I.O. that reflect these things and there is no

evidence regarding this. It is established thing that the deceased had

died an unnatural death and it is a mystery whether the death in this

case is homicidal or suicidal.

19.From the perusal of statement of Dr. Vijay Kumar, it is revealed that he

had given his opinion on both external and internal injuries. He had also

observed the signs of violence only on neck portion but did not observe

signs of violence or struggle on any body parts, which were in normal

position. He only saw struggle marks on the neck. He observed in the

CRAA no.17/2013

statement that in cases of suicide there are no marks of violence on the

body. He further stated that it is difficult to say whether the present case

is suicidal or homicidal. Thus, from the medical point of view also it

is not clear that the deceased had been murdered, as the possibility of

commission of suicide done by the deceased cannot be ruled out by

going through the statement of the medical witness also.

20.From the above discussion, this Court is of the opinion that guilt of the

accused persons charged with the crime has not been proved beyond

any shadow of doubt against respondents/accused persons, as the chain

of evidence in the case of circumstantial evidence must be complete

and conclusive so as not to leave any reasonable ground for conclusion

consistent with the innocence of the accused.

21.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

CRAA no.17/2013

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] )."

22.From the above it is derivable 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.

23.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.

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

that the accused are guilty of having committed the offence, they stand

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

unbroken chain of unimpeachable testimony of the prosecution

CRAA no.17/2013

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.

25.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 bonds, if any, furnished by the accused are discharged.

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

                              (Vinod Chatterji Koul)               ( Tashi Rabstan )
                                            Judge                          Judge
Srinagar
19.03.2021
Rakesh
                        Whether the order is reportable: Yes/No.

I pronounce this judgement in terms of Rule 138(4) of the J&K High Court Rules, 1999.

( Tashi Rabstan ) Judge Jammu 19.03.2021