State Of J&K vs Pyar Singh
2022 Latest Caselaw 1396 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                               Reserved on :        29.09.2022
                                               Pronounced on:       07.10.2022


                                                  CrlA (AD) No. 4/2021(O&M)

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


                   Through :-          Mr. R. S. Jamwal, AAG

                     v/s
                       <




      Pyar Singh                                               .....Respondent (s)
      't




                   Through :-          None.
     Coram:         HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                    HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                          JUDGMENT

Per Oswal-J

1. The present appeal has been preferred by the appellant against the judgment

dated 22.08.2016 passed by the learned Principal Sessions Judge, Reasi

(hereinafter to be referred as the trial court) in file No. 60/Sessions titled,

State of J&K vs Pyar Singh for commission of offence under section 302

RPC arising out of FIR No. 145/2011 of Police Station, Reasi, whereby the

respondent has been acquitted of the charge for commission of offence

mentioned above. The judgment has been impugned on the ground that the

learned trial court has not appreciated the evidence in its right perspective.

2. Mr. R. S. Jamwal, learned AAG appearing for the appellant vehemently

argued that the prosecution has proved the circumstances beyond the

reasonable doubt against the respondent but still the learned trial court has

acquitted the respondent by wrongly appreciating the evidence.

3. Heard and perused the record.

4. The prosecution story is that on 09.09.2011, the son of the deceased, namely,

Pyar Singh submitted an application in Urdu with Police Station, Reasi that

his father, namely, Karnail Singh was running a meat shop and he used to

return to home daily. On 08.09.2011, his father went to the hotel in the

morning but did not return in the evening. At around 8.15 PM in the

morning, he went to the hotel and found that the shutter of the hotel was

closed but there was no lock. He opened the shutter, went inside and found

his father-Karnail Singh lying dead on the floor and blood was scattered on

the floor. On the basis of this report, FIR bearing No. 145/2011 (supra) was

registered and investigation was handed over to SHO-Jatinder Singh

Sambyal. He went to the place of occurrence and prepared the site plan of

the occurrence. He also got conducted the photography of the dead body and

took the dead body in his possession. Blood was taken from the place of

occurrence and was sealed. Post-mortem of the dead body of the deceased

was conducted and clothes of the deceased were also seized. The accused

was arrested on the basis of identification parade conducted by the Executive

Magistrate 1st Class through PWs Rakesh Kumar, Joginder Paul. During

investigation, it came to the fore that on 08.09.2011 at 7/7.15 PM, the

accused/respondent came to the hotel (dhaba) of the deceased and demanded

food. However, the deceased denied the same. Upon this, the accused went

away by abusing the deceased. At about 9.45 PM, the accused again went to

the hotel of deceased when he was all alone and all the adjoining shops were

closed. The accused inflicted two brickbat blows on the back side of the

head of deceased, as a result of which, the deceased fell down.

Thereafter, the accused throttled the deceased and killed him. The accused

made the disclosure statement with regard to the piece of brick and thereafter

recovery was made pursuant to the disclosure statement. In the investigation,

it also transpired that after commission of murder, the accused stayed at

Hotel Suraj Palace in night and next day, he stayed in Chenab Guest House,

Reasi. The offence under section 302 RPC was established against the

accused. Accordingly, the charge-sheet for the commission of offence under

section 302 RPC was presented in the court of Chief Judicial Magistrate,

Reasi and the same was committed to the trial court. Vide order dated

27.01.2012, the charge for commission of offence under section 302 RPC

was framed against the respondent. The respondent did not plead guilty and

the prosecution was directed to lead evidence. There are 23 witnesses cited

by the prosecution and 21 witnesses have been examined by the prosecution.

5. In order to appreciate the evidence on record, it is necessary to have a brief

resume of the prosecution evidence.

6. PW-1 Pyar Singh(son of the accused) has proved the application filed by

him with concerned Police Station with regard to the fact that his father went

to hotel but did not return back and thereafter, he found the dead body of his

father in the hotel. He proved the application filed by him for registering the

FIR.

7. PW-2 Chatter Singh proved the receipt of the dead body. He was declared

hostile and during cross examination also, no incriminating material has

been extracted from him.

8. PW-3 Gafoor Ahmed proved the seizure memo of the dead body.

9. PW-4 Onkar Singh proved the receipt of the dead body.

10. PW-5 Kartar Singh proved the seizure memo of the clothes of the deceased

and also the receipt of the dead body.

11. PW-6 Mohd. Sadiq proved the site plan prepared by him.

12. PW-7 Rakesh Kumar stated that his shop was situated adjacent to the shop

of the deceased. At 7.30 PM last year, when he was closing his shop.

accused came in drunken condition and demanded food from the deceased.

As the deceased refused, the accused went away. Thereafter, he also went

away after closing his shop. The Police called him in the Tehsil Office and

he identified the accused. He identified the accused amongst 10/12 boys in

the Tehsil office. During cross examination, he stated that he saw the

accused for the first time when he came for food to the shop of deceased and

he had not seen him prior to it. When the accused came there, 2/3 other

persons were also sitting. When he closed the shop and went away, 2/3

persons were still sitting in the shop of deceased. Those persons were not

seen by him in the Tehsil Office. The Police called him in the Police Station.

Police showed the accused to him in the Police Station when he was

arrested. He was shown 4/5 days prior to going to Tehsil office. He saw the

accused for a short period of time in the hotel of the deceased.

13. PW-8 Joginder Kumar Bali stated that on 08.09.2011, he had come for

having food in the hotel of the deceased at bus stand Reasi. The accused had

also come there and demanded meat on credit, which was refused by the

deceased and upon it, he went away and he also went away. He expressed

ignorance as to what happened after that. He was called by the Tehsildar.

The Police got conducted the identification parade of the accused before

Tehsildar. He was asked to identify the person who came for food. He

identified the accused amongst the 4/5 persons. During cross examination,

he stated that when he went for having food in the shop of the deceased,

there were 3-4 more persons sitting in the shop and eating. He does not

know those persons. When the accused went away, no conversation took

place between the deceased and the accused and he left the shop 7.30 PM. At

that time, 3-4 persons were having food in the hotel of the deceased. He was

not called by the Police in the Police Station, but he on his own went in the

Police Station to see the accused.

14. PW-9 Amit Sharma stated that on 08.09.2011, a person namely, Pyar Singh

came to his hotel-Suraj Palace for stay. An entry to this effect has been made

in the Register. PW Vinod Kumar is the manager of the hotel. Police seized

the Register from them. During cross examination, he stated that there are

entries which are blank. The entries are usually made by the customers and

their signatures are obtained. At serial No. 428, signatures of Pyar Singh

(accused) are not there. At the time of making the entry, he was not present

in the hotel.

15. PW-10 Vinod Kumar stated that he knew the accused by face as he stayed in

his hotel-Suraj Palace. On 08.09.2011, the accused came to his hotel for a

room and an entry was made in the Register. An entry has been made by him

in the name of the accused. The Register was seized by the Police. He

identified the signatures on the seizure memo. During cross examination, he

stated that an entry was made by him in the name of accused. The accused

did not put signature in the entry Register as he stated that he was illiterate.

The thumb impression of such person is obtained. He did not know the

accused prior to 8th of September. The Police got identification parade of the

accused in the Tehsil Office.

16. PW-11 Prithvi Singh was witness to the disclosure memo and recovery

memo but he was declared hostile and during cross examination, no

incriminating material could be extracted from him against the respondent.

17. PW-12 Sham Singh was witness to the disclosure and recovery memo but

has not deposed anything against the respondent.

18. PW-13 Romesh Mengi stated that as per entry at serial No. 95 of page of 89

in the Register, the accused stayed in the hotel Chenab on 09.09.2011. The

entry was not made by him. However, it was made by Sanjay Abrol. He

proved the seizure memo in this regard. During cross examination, he stated

that he cannot say about other person as the entry is made in the name of one

person. The entry is neither in his handwriting nor was made in his presence.

19. PW-14 Sanjay Abrol proved the seizure memo of the Register. He stated that

an entry was made on 09.08.2011 with respect to Pyar Singh (accused) but

the same is not in his handwriting. The accused was accompanied with a

child. In cross examination, he stated that he has no knowledge in whose

handwriting that entry was made.

20. PW-15 Baldev Singh and PW-16 Reyaz Ahmed are Police officials and have

deposed in same manner about the recovery of the blood stained clothes

from the room at Katra, which was occupied by the accused. Reyaz stated

that he has no knowledge as to who was residing in the said room.

21. PW-17 Munshi Ram, Naib Tehsildar stated that in his presence, the accused

was identified by Vinod Kumar. In three rounds/occasions, the accused Pyar

Singh was identified. He prepared the documents.

22. PW-18 Prithvi Singh Naib Tehsildar stated that he conducted the

identification parade of the accused in the Tehsil Office Reasi. The accused

was identified by the persons brought by the Police. The Police also made

other persons to stand with the accused. In this regard, documents were

prepared. The accused was identified by Rakesh Kumar and by Joginder

Kumar Bali.

23. PW-20 Dr. Harbinder Singh proved the post-mortem report and as per the

post-mortem, the cause of death was axphyxia due to manual strangulation

i.e. due to throttling. He proved the certificate with regard to the weapon of

offence i.e. the brick. During cross examination, he stated that injury Nos. 1

and 2 could be possible due to fall on some pointed object. There were

marks of violence all over the neck. In case of strangulation by rope or

chain, there will be ligature mark around the neck and there is less

possibility of the rupture of neck muscles.

24. PW-21 Dr. Mohan Atri (B Grade Surgeon) has also deposed in similar

manner as that of Dr. Harvinder Singh.

25. PW-23 Jatinder Singh Sambyal (Investigating Officer) stated that

investigation was conducted by him in FIR No. 145/2011 and identification

parade was also got conducted. The accused was arrested and he prepared

disclosure statement of the accused and also memo of recovery of the brick

pursuant to the disclosure statement. During cross examination, he stated

that he did not investigate who went in the shop of the deceased after the

departure of PW Joginder Bali and PW Rakesh Kumar from his shop. Apart

from these witnesses, Gulshan Sharma and Vicky were also in the dhaba. He

did not record their statements, however, he investigated it. PWs Prithvi

Singh and Sham Singh have made false statements that he got their

signatures on blank papers. He further stated that the witnesses for the

recovery have also made the false statements that their signatures were

obtained on blank papers.

26. From the prosecution story, it is evident that there is no eye witness to the

occurrence. The prosecution has relied upon the following circumstances to

prove the guilt of the accused:

      (i)     Last seen theory

      (ii)    Identification parade of the accused

      (iii)   Motive

      (iv)    Disclosure statement of the accused       and recovery of weapon of

              offence i.e. brick.

27. (C-i) So far as last seen theory is concerned, even if, it is established that the

accused went to the Dhaba of the deceased but there is evidence on record in

form of statement of PW Joginder Kumar Bali, who has stated that when he

went to the hotel of the deceased for having food, 3-4 persons were also

eating there and when he left away, those 3-4 persons were still having food

in the hotel of the deceased. PW Rakesh Kumar too has stated that when the

accused came, 3-4 persons were also sitting in the hotel. When he closed his

shop and went away, 2-3 persons were still sitting in the shop of the

deceased. In view of this, it cannot be said that the deceased remained in the

exclusive company of the accused, on the basis of which, it cannot be held

that the deceased was last seen with the accused as such, this circumstance is

not proved.

28. (C-ii) So far as identification parade is concerned, the prosecution has relied

upon the statements of PW-Rakesh Kumar and Joginder Bali. PW Rakesh

Kumar was having a shop adjacent to the shop of the deceased. He identified

the accused in the identification parade. PW- Joginder Bali is a person who

was having meals at the hotel of the deceased. PW-Rakesh Kumar has stated

that the Police showed to him the accused in the Police Station when he was

arrested and he was shown the accused 4-5 days prior to his going to the

Tehsil Office. Likewise, PW-Joginder Bali has also deposed that he on his

own went to the Police Station to see the accused. The statements of both

these witnesses demonstrate that they had seen the accused in the Police

Station prior to their identification. In such scenario, no reliance can be

placed on such identification parade.

29. (C-iii) The motive projected by the prosecution to establish the guilt of the

accused is that the deceased refused food, which was demanded by the

accused and the accused went away abusing. PW Rakesh Kumar has simply

stated that when the deceased refused to give food to the accused, he went

away. PW Joginder Bali has also stated in a same manner. There is no

evidence on record that the accused abused the deceased. So this

circumstance too has not been proved.

30. (C-iv) The other circumstance is the disclosure statement of the accused as

well as the consequent recovery, PWs Prithvi Singh and Sham Singh have

been cited as witness to the disclosure statement & recovery memo but both

these witnesses have not supported the prosecution. So this circumstance too

has not been proved by the prosecution.

31. As already observed by us that the whole prosecution case is based upon the

circumstantial evidence and when the case is based upon circumstantial

evidence, then there should be no missing links in the chain of events and all

links in the chain should be complete so as to establish all the incriminating

circumstances to establish that it was accused only who committed the

offence and must exclude other hypothesis which is consistent with the

innocence of the accused.

32. We have gone through the judgment passed by the learned trial court and the

learned trial court has meticulously examined the evidence and has rightly

come to the conclusion that the respondent is not guilty of the commission of

offence under section 302 RPC. In an appeal against the acquittal, it is only

to be seen whether the opinion formed by the learned trial court is contrary

to the evidence on record or not and merely on the basis of same set of

evidence, the other opinion is also possible, is no ground for interfering with

the judgment of acquittal.

33. For all what has been discussed above, we do not find any merit in the

present appeal, as such, the same is dismissed.

                                               (RAJESH SEKHRI) (RAJNESH OSWAL)
                                                      JUDGE          JUDGE
JAMMU
07.10.2022
Rakesh
                                   Whether the order is speaking:     Yes/No
                                   Whether the order is reportable:   Yes/No