Jammu & Kashmir High Court
Darshan Lal vs State Of J&K on 9 October, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. .
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 03/2011 c/w Reserved on: 12.09.2024
CONF No. 02/2011 Pronounced on: 09.10.2024
Darshan Lal .....Appellant
Through :- Mr. Adarsh Sharma, Advocate with
Mr. Atul Verma, Advocate.
v/s
State of J&K .....Respondent
Through :- Mr. Ravinder Gupta, AAG.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
01. Challenge in this appeal has been thrown to the judgment dated
22.12.2010 and order dated 28.12.2010, propounded by learned Sessions Judge,
Kathua (file no. 24/Sessions) in case titled 'State vs. Darshan Lal', vide which,
appellant came to be convicted for offence under Section 302 of the Ranbir
Penal Code, 1989, ["RPC"] and sentenced to undergo imprisonment for life and
pay a fine of Rs. 2 lacs., out of which 50% has been directed to be paid to the
next of the kin of the deceased.
02. Before a closer look at the grounds urged in the memo of appeal, it shall
be expedient to have an overview of the backgrounds facts of the case.
03. On 16.06.2005, Jaswant Singh, SHO Police Station Basohli, who had
gone for the inquest proceedings in connection with death of Suresh Kumar and
Madan Lal under suspicious circumstances, came back to the police station and
revealed that PW Bal Krishan, on being enquired had recorded his statement
that on 14.03.2005, his son Madan Lal alias Madhi was present in the house in
the morning. After sometime, one Suresh Kumar came to their house, had
breakfast and both of them went towards Udhar Kati. Same day, dead body of
Suresh Kumar with injuries on his face and parts of body was found from
Nagali Hill, near gharat (water mill) of one Kunju Meg. Thereafter, on
16.03.2005, dead body of his son, Madan Lal alias Madhi was also seen in
forest Kati near old kool (water pond), with injuries on head and parts of the
body. The statement of Bal Krishan was reduced into writing by the SHO and
the said statement along with docket was forwarded to the Police station through
Shamsher Singh, SgCt/408. It revealed during the inquest that appellant on the
basis of old animosity and in furtherance of criminal intention to kill, inflicted
blows of lathi on the head of deceased persons, killed both of them and threw
their dead bodies down the hill. The appellant after the commission of crime
fled from village Nagali. On the basis of this statement, FIR came to be
registered and during investigation, the investigating agency besides other legal
formalities got statements of material witnesses recorded under Section 164
CrPC and laid charge-sheet against the appellant for the aforesaid offences.
04. The appellant was charged by the trial court for offence under Section
302 RPC, whereby he pleaded not guilty and claimed trial, prompting the trial to
ask for the prosecution evidence and prosecution has examined 23 witnesses to
bring home guilt of the appellant.
05. Before we proceed to analyze the prosecution evidence, it shall be apt to
give brief excerpts of the testimonies of the prosecution witnesses, which are as
follows:-
06. PW Shani, is the mother of deceased, Suresh Kumar.
She has stated that on the day of occurrence, her son at around 5.00/6.00
AM went to Udhar Dhoke along with cattles but did not return. At about 5.00
PM, she came to know that dead body of someone was lying on the foothill. She
went to the spot and recognized the dead body of her son. The witness goes on
to reveal that a couple of days prior to the occurrence, the accused had
complained that his son was having illicit relation with his sister-in-law (bhabi)
namely, Gudo, but her son reflected his ignorance about any such relationship.
After three days, dead body of Madan Lal also came to be recovered from Kati
forest. In cross-examination, she has stated that she was not present at the time
of recovery of the dead body of Madan Lal, 2 kms away from the place of
recovery of dead body of her son. Her son went alone to Udhar Kati.
07. PW Bodh Raj, is the Patwari, who has admitted the revenue extracts,
EXPW-BR, EXPW-BR/2 and EXPW-BR/3, regarding khasra nos. 511, 381,
632, 614, 584, 445 and 346. In cross-examination, he has stated that the place of
occurrence, EXPW-BR and EXPW-BR/1 belongs to the Forest Department and
rest of the land belongs to the Revenue Department.
08. PW Anant Ram, is uncle of deceased Madan Lal and Naib Sarpanch of
the village.
He has stated that on 14.03.2005, he came to know that a dead body was
lying near the water mill of Kunju Meg. He went to the spot and identified the
dead body of deceased Suresh, who had sustained injuries on his body. A
teacher of their village telephonically informed the police on the next day and
police reached the spot at 4.00 PM. The dead body was evacuated to the Basohli
hospital. They were told by PW Bal Krishan that his son and deceased Suresh
had gone together to Dhoke and dead body of his son, namely, Madan Lal was
recovered on 16.03.2005 at about 9.00 AM from Kati forest, near Kool. Again a
telephonic message was flashed to the police and police came to the spot at
about 4.00/5.00 PM and the said dead body was also shifted to Basholi hospital.
The post mortem on both the dead bodies was conducted on 17.03.2005. He has
admitted the custody memo EXT-P1/1 of the dead body, seizure memo EXT-
P1/1 of the clothes of deceased Madan Lal and another seizure memo EXT-
P/1/2. The accused was arrested on 16.06.2005, who disclosed in the police
custody that he had concealed a bamboo stick under a heap of grass in the cattle
shed of dhoke. The stick was recovered by the police. He has admitted the
recovery memo EXT-P/1/3. He was told by PWs Gudo and Bishamber that
accused followed deceased Suresh Kumar for about half a kilometer,
whereafter, they had altercation and the accused threw him down the hill. He
was told by PW Bishambar that accused had beaten Madan Lal with the bamboo
stick. He has identified stick in the court. He has also admitted the search memo
EXT-P/1/4 of the accused and memo of arrest EXT-P1/5. In cross-examination,
he has stated that he and Thakur Dass are real uncles of deceased Madan Lal.
Neither he has nor had any litigation with the accused. Kunju was informed by
somebody that dead body of Suresh Kumar was lying on the backside of the
pathway. He and Thakur Dass went to the house of Master Rashid in village
Nagali for telephone call. They searched for the dead body of Madan Lal on
15.03.2005. They did not raise any suspicion that deceased were killed by the
accused. On 16.06.2005, the accused was brought to their village by the police
and he was told by the police that accused was arrested from Kathua a few days
earlier. Accused was not arrested in his presence. He was told by the police that
accused had made a confession. However, the accused disclosed in his presence
to the police with respect to the stick, which came to be recovered. He has
identified stick in the Court. He has admitted that he was not present at the time
of recovery.
09. PW Thakur Dass, is uncle of deceased Madan Lal.
He has stated that on 14.03.2005, deceased Suresh Kumar and Madan Lal
came to the house of PW Bal Krishan, had breakfast and went towards the
dhoke, whereafter, they could not be traced. Later, the dead body of Suresh
Kumar came to be recovered from near a gharat (water mill) of Kunju on
14.03.2005. In the morning, they went to the house of Rashid (teacher) to make
a phone call to the police and police came to the spot on 15.03.2005. The dead
body was lying in a pool of blood. The dead body was brought to the police
station and post mortem was conducted on 16.03.2005. Suresh Kumar was
cremated on 16.03.2005. Thereafter, search for Madan Lal commenced and on
16.03.2005 at 9.00 AM, dead body of Madan Lal was found lying near Kool in
Kati forest with injuries on his head. They rang up the police, police came on
the spot and shifted the dead body to Basholi. Madan Lal was cremated on
17.03.2005. He was told by PW Bishamber that accused had killed Madan Lal
in his presence and he was also told by PWs Gudo and Bishambar that accused
had also killed Suresh Kumar. In cross-examination, he has stated that PW
Anant Ram, is his brother. He had told the police about whatever he was told by
PW Bishamber to him, but he does know whether police has written it in his
statement or not.
10. PW Bal Krishan, is father of deceased Madan Lal.
He has stated that on 14.03.2005, deceased Suresh Kumar, came to his
house at 9.00 AM, had breakfast and deceased Suresh Kumar and Madan Lal
left for Kati Udhar to look after their land. The accused armed with a stick,
starting chasing them. Deceased did not return in the evening. Dead body of
Suresh Kumar was seen near Nagali Nallah, in front of Kunju‟s gharat at about
6.00 AM. However, his son could not be traced. He was told by PW Nejoo that
one person had fallen. Mohd. Rashid telephonically informed the police, police
came to the spot and shifted the dead body to Basholi. The post mortem was
conducted and dead body was handed over on the third day and last rites were
performed on 17.03.2005. Dewan Singh and his grandson Bishamber Dass came
to his house to condole the death of his son and he told him that he was told by
Bishamber Dass that while he had gone to collect „Saag‟ (green vegetable), he
saw the accused beating Madan Lal with stick and stones. The accused fled the
village and went to Bengaluru. Later, he made a confession that he had killed
the deceased. He made a report to the police. He has admitted the FIR, EXT-P2.
He has also admitted the memo EXT-P1/2 regarding the receipt of dead body. In
cross-examination, he has stated that on 14.03.2005 he came to know about the
recovery of dead body of deceased Suresh Kumar and he searched for his son
for two days. The dead body of Madan Lal was lying on one side of the
pathway. The mother of PW Bishamber told him on 15.03.2005 that accused
armed with a stick had followed the deceased. The police recorded his statement
on the day when dead body of Madan Lal was recovered and police enquired
everything on the same day. He had mentioned the name of accused in his
statement, however, the said statement is not part of the file. After three months,
the police again recorded his statement in the police station. He has denied the
suggestion that deceased fell down the hill and died.
11. PW Bishamber Kumar, has stated that about four and a half years back,
in 2003, deceased Suresh Kumar and Madan Lal came to their house, had
alcohol and left. After sometime, accused also came to their house along with
his wife and consumed half a bottle of alcohol and packed rest half of the bottle
in a box. Thereafter, he went to collect grass from the forest. The accused asked
his mother for a bamboo stick, but she refused and went away with her goats.
The accused came to their house, prepared a stick and thereafter left. His mother
came back and asked him to bring „saag‟. He heard noise from the forest area,
went there and saw that accused was beating Madhi with the bamboo stick and
he was following Suresh Kumar. He immediately returned home, however,
despite being enquired by his mother, he kept quite. After 2/3 months, when his
grandfather asked him about the reality, he revealed the incident to him, who
informed the police and police arrested the accused. The accused produced a
bamboo stick from a room, which came to be seized by the police. He has
admitted the seizure memo EXT-P1/3. He has admitted his said statement,
EXT-P4 under Section 164-A CrPC. He has also identified stick in the court. In
cross-examination, he has stated that deceased Suresh Kumar and Madan Lal
came to their house at 11.00 AM, consumed a bottle of alcohol and took one
bottle with them. It is wrongly mentioned in his statement under Section 161
CrPC that his mother used to sell liquor and deceased Suresh Kumar and Madan
Lal and accused had purchased liquor from his mother. He went to the forest
two hours after deceased Suresh Kumar left their house. He heard the noise
from a distance of 1 to 1 ½ km. The pathway is a hilly area with lots of bushes
around. He had not seen deceased Suresh on the spot from where noise was
coming. However, he had seen the accused beating Madan Lal, who had fallen
on the ground. He had clearly seen the occurrence, but did not reveal to
anybody. He was not threatened by the accused from telling the occurrence to
anybody. First of all, he revealed the occurrence to his grandfather after about 3
to 3½ months and one week thereafter to the police. Police recorded his
statement. However, the accused was arrested a month prior to his telling the
occurrence to the police. Twice police came to their village and enquired from
him, but he revealed the incident to the police on third occasion. It is wrongly
mentioned in his statement under Section 164-A CrPC that police did not
enquire anything from him. He got his statement recorded on the request of his
grandfather and not the police. He did not go inside the room with the police,
but remained outside. The police went inside and recovered the stick. He has
denied the suggestion that Suresh and Madhi were drunk, fell down the hill and
died.
12. PW Guddo, has stated that about 5 years back, she was grazing her goats
at Nagali. At 4.00 PM, the accused and his wife Shani were seen going towards
the gharat of kunju. She saw the accused armed with a stick, following deceased
Suresh. The accused inflicted stick injuries to Suresh Kumar and pushed him
down the hill. Thereafter, accused went to his cattle shed. Accused asked her,
whether she had seen deceased Suresh and Madhi and she told him that she had
seen him following and beating deceased Suresh with a stick. The accused told
Kunju that a person had fallen down and he refused to admit that he had seen
the deceased. She was threatened by the accused that in case she disclosed the
occurrence to anybody, he would eliminate her therefore she left due to fear.
She along with neighbourers went to the spot and narrated the entire incident to
the police. She had learnt that accused had also beaten deceased Madan Lal on
the same day. The accused was telling that deceased had illicit relations with his
sister-in-law (bhabi) and that was the reason that he had killed both of them. In
cross-examination, she has stated that next day, police came to the spot at about
4.00 PM, where dead body of Suresh was lying and on the third day at about
4.00 PM, police reached the spot where dead body of Madhi was lying. She had
seen deceased Suresh and accused from a distance of 70/80 ft. She narrated
entire incident to the police on third day of the occurrence when police came to
the spot and her statement was recorded. It is wrongly mentioned in her
statement under Section 161 CrPC that accused was aware about her illicit
relations with deceased Madan Lal alias Madhi. It is also wrongly mentioned in
her statement under Section 164-A CrPC that she did not tell anything to the
police, however, it is rightly mentioned in her statement that accused pushed
Suresh Kumar down the hill. The accused had beaten Suresh Kumar with a stick
before throwing him down the hill, but it is not mentioned in her statement
under Section 164-A CrPC.
13. PW Bhagat Ram, has deposed that in the year 2005, the accused made a
disclosure that he had killed the deceased with a stick, concealed it in a cattle
shed and only he has the knowledge about it and get it recovered. He has
admitted the memo of disclosure EXT-P3. The accused led the recovery of the
stick. He has also admitted the recovery memo EXT-P1-3. In cross-examination,
he has stated that deceased Madan Lal is not his brother-in-law. He
accompanied the police to the place of recovery of the weapon of offence.
Karnail Singh also accompanied them. The disclosure statement was made in
the police station. The accused was apprehended on the day of occurrence itself,
but he absconded from the police station and later came to be arrested. He has
denied that police did not conduct any proceedings in his presence and he was
making a false statement because deceased Madan Lal is his brother-in-law.
14. PW Soma, is mother of deceased Madan Lal alias Madhi.
She has stated that about five years back, Suresh came to their house at
9.00 AM and asked her son to come along. But he did not return till evening. In
the evening, they came to know that dead body of Suresh was lying near water
mill of Kunju. Next day, they searched for her son. She was told by Bindroo that
deceased Madan, Suresh and accused and his wife came to her house and left
after sometime. It was also told that Bindroo had sent her son to collect „saag‟
and he had stated that deceased had been killed by the accused. The dead body
of her son was recovered on the third day. In cross-examination, she has stated
that he was told by PW Bindroo on the second day of occurrence that her son
had seen the occurrence. The police came to the village and recorded her
statement two months after the occurrence. She told the police that son of PW
Bindroo had seen the occurrence, but it is not mentioned in her statement under
Section 161 CrPC.
15. PW Bindroo, has stated that about 4/5 years back, accused and deceased
Madan and Suresh came to her house and asked for liquor. She told them that
they do not distill liquor. Wife of the accused, namely, Shani, who was also
present there had sickle in her hands. Deceased Suresh and Madhi left her house
but accused remained there and asked for a stick, which she refused. However,
the accused picked one stick from the sticks lying there and left. After two
months, her son Bishamber told her that accused had killed the deceased. Soma
came to her house in search of her son and she narrated the occurrence to her. In
cross-examination, she has stated that police came to their house two months
after the occurrence. Soma Devi came to her house on the second day of the
occurrence. She did not tell her that her son was killed by accused or that she
was told by her son Bishamber that he had seen the accused killing both Madhi
and Suresh. It is wrongly mentioned in her police statement that she distills and
sells liquor and deceased had purchased alcohol from her.
16. PW Mohd. Rashid, has stated that on 14.03.2005, at about 7.00/8.00
PM, he was called by Numberdar Thakur Dass, and was told that dead body of
Suresh was lying in Nagali Nallah down the hill. There was no telephone in the
village and since he had the mobile, the Numberdar took his mobile and
telephonically informed the police station on 15.03.2005, as his phone was not
charged on 14.03.2005. On 16.03.2005, dead body of Madan Lal was also found
in Nagali Kati forest near a tributary. In cross-examination, he has stated that he
was told by the Numberdar regarding recovery of dead bodies of Suresh and
Madan Lal. He did not go to the spot. It is rightly mentioned in his police
statement under Section 161 CrPC that he immediately went to the spot.
17. PW Charan Dass, is cousin of deceased Suresh Kumar.
He is witness to the seizure memo EXTP-24 of the clothes of the
deceased Suresh Kumar, which were handed over by the doctors to the police
after the post mortem. He has admitted the same. He has also admitted the
custody memo EXTP-24/1 of the dead body of the deceased Suresh Kumar.
18. PW Mast Ram, is uncle of deceased Suresh Kumar.
He is witness to the seizure memos EXTP-23, EXTP-24 and EXTP-24/1.
19. PW Guddi Devi, has stated that about five years back, while she was
grazing her goats at 4.00 PM, she saw the deceased running and the accused
following him. At about 6.00 PM, she learnt that dead body of Suresh Kumar
was found down the hill in Nallah. In cross-examination, she has stated that she
saw the deceased Suresh Kumar running from a distance of 1½ km and accused
was following him.
20. PW Vidya Devi, is hostile.
21. PW Nejoo Devi, has stated nothing incriminating against the appellant.
22. PW Romesh Kumar, is witness to the custody memo EXTP-1 of the
dead body of deceased Madan Lal and seizure memo EXTP-1/1 of the deceased.
23. PW Kunju, has stated that about 5/5½ years back, he found a dead body
lying down the hill in the nallah. He called Numberdar and Sarpanch and found
the dead body of Suresh lying there, which was evacuated by the police. In
cross-examination, he has stated that the day of occurrence was winter and there
was no electricity in the village.
24. PW Dr. Ajay Krishan, has stated that he conducted post mortem on the
dead body of deceased Madan Lal on 17.03.2005 and on the dead body of
Suresh Kumar on 16.03.2005 and found injuries mentioned in the post mortem
reports. He has admitted the post mortem reports EXT-P-26 and EXT-P-26/1. In
his opinion, the cause of death, in case of Madan Lal was damage to the brain
and death occurred consequent upon the injuries sustained and in the case of
Suresh Kumar the cause of death was damage to vital organs of abdomen and
hemorrhagic shock sustained by the deceased. He examined the weapon of
offence on 07.07.2005, which could cause blunt trauma to the deceased and
thereby cause death. In cross-examination, he has stated that injuries, in case of
Madan Lal could be caused by a blunt trauma or due to fall. As per the report,
the time since death was less than 48 hours, which means that death of Madan
Lal had occurred on 15.03.2005, after 11.00 AM. In case of Suresh Kumar, the
time since death was less than 24 hours which means that death was occurred on
15.03.2005, after 11.00 AM. The cutting on the date of autopsy in the post
mortem report and cutting in the name of authority letter for autopsy was made
by him at the instance of the police. Year is not mentioned in both the post
mortem reports. He has not seen the weapon of offence in the court.
25. PW Sunil Kumar, has stated that he was posted as SPO in Police Station
Basholi. He along with SHO went to village Nagali, who was conducting the
inquest regarding the death of the deceased. Reports no. 4 and 8 were endorsed
by the SHO. Dead bodies of Suresh Kumar and Madan Lal were recovered and
evacuated for post mortem. He has admitted the memo EXT-P-30. In cross-
examination, he has stated that the memo is signed by 2 to 3 witnesses but none
accompanied him.
26. PW Jaswant Singh, has stated that he was posted as SHO Basohli in the
year 2005. He investigated case FIR No. 33/2005 for offence under Section 302
RPC. Dead body of Suresh Kumar was recovered and proceedings under
Sections 174 CrPC were initiated on 15.03.2005 by ASI Bharat Bhushan, who
prepared the site plan, seizure memo of dead body of Madan Lal, seizure memo
of clothes and receipt of dead body etc. After the inquiry, it was concluded that
offence under Section 302 RPC was made out and the case came to be
registered. In cross-examination, he has stated that he went to the spot on
15.05.2005, 16.06.2006, 17.06.2005 and 17.05.2005. He recorded statements of
six witnesses. The case was registered on 16.06.2005. He recorded statements of
witnesses under Section 161 CrPC. He went to village Nagali on 20.06.2005.
The prosecution witnesses including PW Bishamber were present on the spot
and ambush was laid and accused was arrest from Siara, after an information
was received that accused was present in the area. The stick was recovered from
the spot. Statement of PW Bishamber was recorded prior to the arrest of the
accused. PW Bishamber was brought to the police station by his grandfather.
PW Bishamber mentioned in his statement under Section 161 CrPC statement
that he had seen the occurrence. PW Bishamber narrated thrice and PW Guddo
also stated about the occurrence. As per his investigation, the dead body was
seen on 14.03.2005 and thereafter, the case came to be registered. It revealed
during investigation that accused first killed Suresh Kumar and threw him down
the hill.
27. PW Romesh Singh, has stated that he was posted as Constable in Police
Station Basholi. He along with SHO went to village Nagali where dead body of
deceased came to be recovered and proceedings under Section 164 CrPC were
conducted. He has admitted the seizure memo EXT-P-30. In cross-examination,
he has stated that he signed the documents after those were read over to him,
however, he has no knowledge about the documents, which were prepared on
16.06.2005.
28. PW K K Sharma, has stated that on 16.03.2005, he was posted as SHO,
Police Station Basohli. He initiated the proceedings under Section 174 CrPC
with respect to report no. 8. He received a telephonic call from Mohd. Rashid
that dead body of Madan Lal was lying in rivulet Nagali. He along with police
personnels and ASI went to the spot on the same day and prepared the site plan
EXPW-KK. He has also identified the photographs 1 to 15 annexed with the
file. He has also admitted the seizure memo EXTP-1 of the dead body. The dead
body was evacuated to the hospital, where post mortem was conducted on
17.03.2005. He has admitted the seizure memo EXT-P1-1 of the clothes of the
deceased, receipt EXT-P1-2 of dead body. On 27.03.2005, he collected
photographs of dead body. On 01.04.2005, he was transferred from the police
station. In cross-examination, he has stated that he received telephonic message
on 16.03.2005 at about 11.30 AM. The telephone caller disclosed his name as
Mohd. Rashid S/O Ghulam Rasool, R/O Nagali. He was accompanied by ASI
Bharat Bhushan, Constables Shamsher Singh, Subash Chander and SPO Mohd.
Rashid. The occurrence took place on 16th and site plan was prepared on the
same day. The site plan dated 15.03.2005 was prepared by ASI Bharat Bhushan
but as per his report, the occurrence had taken place on 16.03.2005. The dead
bodies of deceased were recovered from different places. As per the report,
Suresh Kumar was killed on 15th and Madan Lal was killed on 16th. It was not
established in his investigation that accused had killed Suresh Kumar and
Madan Lal.
29. This is the crux of prosecution evidence. The incriminating material
appearing in the testimonies of the prosecution witnesses were put to the
appellant in his statement under Section 342 CrPC, who denied the same. The
accused though sought time to lead defence evidence, but failed to do so.
30. Learned trial court having heard the prosecution and the defence and
analyzed the material on record including the testimonies of the prosecution
witnesses, has concluded that prosecution has succeeded to establish a complete
chain of circumstances leading to the only hypothesis that it was the appellant
who is perpetrator of the crime and killed both the deceased persons.
Consequently, the appellant came to be convicted and sentenced as mentioned at
the threshold.
31. The appellant has questioned the impugned judgment inter alia on the
grounds that he is innocent and has been implicated in a false and frivolous case.
There are serious contradictions in the testimonies of the interested witnesses.
Independent witnesses have not supported the prosecution case. There are
contradictions between the statements of the prosecution witnesses recorded
during the trial and their statements recorded during investigation under
Sections 161 CrPC or 164 CrPC. The appellant has primarily assailed the
impugned judgment on the ground of delay in registration of the FIR. It is urged
that the occurrence is alleged to have taken place on 14.03.2005 and there was
no allegation against the appellant during the inquest proceedings and it was
only more than three months after on 16.06.2005, when PWs Bishamber Kumar,
Gudoo and Bal Krishan alleged that deceased were killed by the appellant that
FIR came to be registered. According to the appellant, the aforesaid witnesses,
despite allegedly being aware about the occurrence, maintained a silence for
more than three months and projected a false story to frame the appellant, which
is sufficient to discredit the prosecution case. It is contention of the appellant
that learned trial court has failed to appreciate prosecution evidence in the right
perspective.
32. Having heard learned counsel for the appellant and Mr. Ravinder Gupta,
learned AAG appearing for the respondent State, we have given our anxious
consideration to the facts and circumstances obtaining the present case.
33. Before we proceed to analyse and thrash the prosecution evidence, it may
be profitable, though at the cost of brevity, to recall that occurrence in the
present case is stated to have taken place on 16.03.2005, however, the FIR came
to be registered on 16.06.2005, on the basis of statement made by PW Bal
Krishan, during the inquest proceedings that appellant on the basis of old
animosity, inflicted blows of Lathi on the head of deceased persons, killed both
of them and threw their dead bodies down the hill. It revealed during
investigation that PW Bal Krishan was told by PW Bishamber on 16.06.2005
that he is witness to the occurrence of the appellant killing the deceased persons.
It is also pertinent to mention that PWs Anant Ram, Thakur Dass, Soma and
Bindroo, during their testimonies in the trial court have claimed that they were
told by PWs Bishamber and Guddo that they had seen the appellant killing the
deceased persons. Therefore, the entire prosecution case primarily hinges upon
the testimonial potency of PW Bal Krishan and PWs Bishamber Kumar and
Guddo, who claim to be eye witnesses to the occurrence.
34. PW Anant Ram, uncle of deceased Madan Lal and Naib Sarpanch of the
village has claimed that he was told by PWs Guddo and Bishamber that they
had seen the appellant following deceased Suresh Kumar for about half a
kilometer, whereafter they had some altercation and the appellant threw him
down the hill. PW Anant Ram has also stated that he was also told by PW
Bishamber that appellant had beaten Madan Lal with a bamboo stick. According
to PW Anant Ram, the appellant had beaten only deceased Madan Lal with the
bamboo stick and he threw Suresh Kumar down the hill after an altercation with
him. PW Thakur Dass has also stated that he was told by PWs Bishamber and
Guddo that appellant killed both Madan Lal and Suresh Kumar in their
presence. PW Soma, mother of deceased Madan Lal has stated that she was told
by PW Bindroo, on second day of the occurrence that her son Bishamber had
seen the occurrence, who told her that deceased had been killed by the appellant.
35. PW Bal Krishan, father of deceased Madan Lal, is the prosecution
witness, on the basis of whose statement during the inquest proceedings, the FIR
came to be registered. He has stated that Dewan Singh and his grandson
Bishamber came to his house for condolence and Dewan Singh told him that he
was told by his grandson that while he had gone to collect „saag‟, he saw the
accused beating Madan Lal with stick and stones. The witness has further stated
that he was also told by mother of PW Bishamber (PW Bindroo) that appellant
armed with a stick had followed the deceased. Since PW Bal Krishan came to
know about the occurrence from Dewan Singh, who was revealed by his
grandson PW Bishamber and his mother PW Bindroo that it was the appellant
who killed the deceased persons, therefore, statements of PWs Bishamber and
PW Bindroo are required to be analyzed carefully.
36. PW Bishamber Kumar, who claims to be an eye witness, has stated that
appellant came to their house, asked his mother for a bamboo stick, but she
refused. However, the appellant prepared a stick and went away. He was asked
by his mother to collect „saag‟. He heard noise from the forest, went there and
saw that appellant was beating Madan Lal with a bamboo stick. The witness
further claims that he had seen the appellant following deceased Suresh Kumar.
He immediately returned home. The witness goes on to narrate that despite
being enquired by his mother, he kept quiet and after 2/3 months, when he was
asked by his grandfather about the reality, he revealed the incident to him. It is
pertinent to underline that PW Bishamber only claims to have seen the appellant
beating deceased Madan Lal with a bamboo stick and following deceased
Suresh Kumar. He has nowhere stated that he had seen the appellant killing the
deceased persons and throwing their dead bodies down the hill as deposed by
the other prosecution witnesses, who claim to have learnt about the occurrence
from him. PW Bishamber has also stated that despite being enquired by his
mother, he kept quiet, which is contrary to the statement of his mother PW
Bindroo, who has stated that after two months, she was told by her son
Bishamber that appellant had killed the deceased persons.
37. Another prosecution witness, who claims to be eye witness to the
occurrence is PW Gudoo. She has stated that she saw the accused armed with a
stick, following deceased Suresh. She further stated that appellant inflicted stick
injuries to Suresh Kumar and pushed him down the hill. She also stated that
when appellant asked her about the whereabouts of deceased Suresh and Madhi,
she told the appellant that she had seen him following and beating Suresh
Kumar with a stick. She has also stated later that she came to know that
appellant had also beaten deceased Madan Lal on the same day and appellant
was telling that deceased had illicit relation with his sister-in-law (bhabi) and
that was the reason that he killed both of them.
38. If the statements of aforesaid material prosecution witnesses are carefully
glanced over, it is evident that there are serious contradictions. According to PW
Bishamber, the appellant had beaten deceased Madhi with a bamboo stick and
followed deceased Suresh Kumar. According to his grandfather PW Bal
Krishan, on whose statement during the inquest proceedings, FIR came to be
registered, he was told by PW Bishamber that he had seen the appellant beating
Madan Lal with stick and stones and PW Anant Ram has claimed that he was
told by PWs Gudoo and Bishamber that appellant had beaten deceased Madan
Lal with bamboo stick and followed deceased Suresh Kumar, had an altercation
with him and threw him down the hill. On the contrary, PW Gudoo has stated
that it was deceased Suresh Kumar who was beaten by the appellant with the
bamboo stick and pushed down the hill. It is evident from a careful appreciation
of the prosecution evidence that testimonies of material prosecution witnesses
are replete with serious embellishments and exaggerations, therefore, they do
not inspire confidence to sustain conviction.
39. The appellant has also assailed the impugned judgment of conviction and
order of sentence on the ground of inordinate delay in the lodgment of FIR.
40. It is the prosecution case that though the occurrence took place on
16.03.2005, however, the FIR came to be registered on 16.06.2005, after PW
Bal Krishan during the inquest proceedings revealed that it was the appellant,
who on the basis of old animosity had killed deceased and threw their dead
bodies down the hill. It surfaced during investigation that PW Bal Krishan was
told by PW Bishamber that he had seen the appellant killing the deceased
persons. Therefore, the respondent-State/prosecution in order to explain the
delay in the lodgment of FIR has relied upon the statement of PW Bishamber,
who has stated that he witnessed the occurrence, however, he did not reveal the
occurrence to anybody and after about three months, when his grandfather asked
about the reality, he narrated the incident to him. It is urged by the
respondent/prosecution that since PW Bishamber revealed the occurrence to his
grandfather, PW Bal Krishan around 16.06.2005 only, therefore, the FIR came
to be lodged thereafter.
41. It is interesting to note that PW Bishamber has stated that though he was
not threatened by the appellant from revealing the occurrence to anybody, yet,
he preferred to maintain silence for about three months of his own and narrated
the occurrence to his grandfather only after he was asked to reveal the reality.
We are surprised that if PW Bishamber was not threatened by the appellant,
what prompted him to keep the cards close to his chest for more than three
months and it is intriguing to note that he revealed the occurrence only when he
was prodded and coaxed by his grandfather.
42. Be that as it may, the fallacy in the statement of PW Bal Krishan and the
prosecution case is exposed by none other than PW Bal Krishan, as he has
deposed that Dewan Singh and his grandson Bishamber came to his house to
condole the demise of his son and he was told that while PW Bishamber had
gone to collect „saag‟, he saw the appellant beating Madan Lal with stick and
stones. He has also stated that mother of PW Bishamber (Bindroo) told him on
15.03.2005 that appellant armed with a stick was following deceased. PW Bal
Krishan goes on to state that police recorded his statement on the same day
when dead body of Madan Lal came to be recovered and police enquired
everything from him on the same day and he named the appellant in his
statement, which is not part of the file. Another prosecution witness, PW
Guddo, who also claims to be an eye witness to the occurrence in her testimony
before the trial court has stated that she along with the neighbourers went to the
spot and narrated the entire incident to the police on third day of the occurrence
and her statement was recorded. PW K.K. Sharma, SHO, Police Station Basholi,
who has conducted the inquest proceedings under Section 164 CrPC, has also
stated that it was not established in the inquest proceedings that appellant had
killed deceased Suresh Kumar and Madan Lal. Therefore, if statements of
aforesaid prosecution witnesses, PWs Bal Krishan, Guddo and K K Sharma,
SHO Police Station Basholi, are carefully appreciated in conjunction, it is
manifest that prosecution has failed to explain the inordinate delay in the
lodgment of FIR against the appellant, as PWs Bal Krishan and Guddo have
deposed that they revealed the occurrence to the police on the day of occurrence
or immediately after the occurrence and the occurrence against the appellant
was not established during the inquest proceedings.
43. Another circumstance, relied by the prosecution is the disclosure
statement made by the appellant and consequent recovery of the weapon of
offence-Lathi at his instance.
44. PWs Anant Ram and Bishamber Kumar are witnesses to the memos of
recovery and seizure. Though both the witnesses have admitted the recovery and
seizure memo EXT-P1/3, however, PW Anant Ram has admitted in the cross-
examination, he was not present at the time of recovery and PW Bishamber
Kumar has also admitted in the cross-examination that he did not go inside the
room from which the weapon of offence was recovered by the police and it was
the police only who went inside the room and recovered the stick. Since both
the witnesses to the memo of recovery and seizure have admitted that they were
not present at the place of recovery, therefore, the alleged recovery and seizure
of the weapon of offence, pursuant to the alleged disclosure statement of the
appellant being not in conformity to Section 27 of the Evidence Act, is of no
consequence to the prosecution.
45. Having regard to what has been observed and discussed above, the
prosecution has badly failed to establish guilt of the appellant beyond reasonable
shadow of doubt. The prosecution evidence being replete with serious
contradictions and discrepant on material aspects of the case and the alleged
disclosure statement made by the appellant and consequent recovery and seizure
of the weapon of offence, being legally flawed, cannot be made basis to convict
the appellant. Hence, the impugned judgment and order being illegal and
perverse are liable to be set-aside.
46. For the foregoing reasons, the present appeal is allowed and the
impugned judgment and order are set-aside. The appellant is acquitted. He is
relieved of his bail bonds.
47. The trial court record be returned forthwith.
48. Disposed of.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
JAMMU
09.10.2024
Abinash
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
