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2001 DIGILAW 240 (JK)

State Of J. &K. v. Kuldeep Raj

2001-10-06

NISAR AHMAD KAKRU, S.K.GUPTA

body2001
1. A freak but few facts attracting a recondite provision of the penal code constitute the subject matter of the criminal case, which ended in acquittal of offences under section 302/403/34 RPC in the Sessions Court at Rajouri and is re-agitated before us to impugne its correctness in this appeal. 2. Precisely, the facts of the case in the narration are that an FIR No. 41/98 under section 302 RPC stood registered with police station Dharamsal, on the receipt of information on source relating to dead body of deceased Darshan Lal resident of Amritsar lying in the field at Thangriot (Seru). During autopsy of the dead body, wound and injuries on neck, head and face were found on the body of deceased. A slip depicting the name of Kuldeep Raj was also recovered from the pocket of the pant of the deceased. The investigation revealed that the deceased was running a business in second hand goods at Bharak for the last about ¾ years and Kuldeep Raj accused was frequent visitor on his shop. That the accused committed a theft of Rs 1.800/-from the shop of the deceased and the latter when groused, the accused returned Rs 1,5007- with an assurance to return the balance of Rs 300/- also, but developed a revengeful attitude towards the deceased. On invitation, Darshan Lal deceased accompanied the accused to the latters house on 7-8-1998 at 6.00 p.m. The accused, however, made him to sit in the land of his father and himself went to the house and returned alongwith his mother Kailo Devi armed with an axe (Tabbar) intending to liquidate the deceased Darshan Lal. Kailo Devi accused engaged the deceased in conversation and the accused Kuldeep Raj inflicted blows with the Tabbar to the deceased from the back on the head, neck and face, as a result of which, the deceased died on spot. Accused removed Rs 1,805/- from the pocket of the deceased, gave them to her mother and after hiding the Tabbar in the drain near the Panchayati road fled away from the place of occurrence. 3. Evidence assembled, according to the prosecution, consists of the statements of eye-witnesses, namely, Chuni Lal and Joginder Pal, besides other witnesses of disclosure statement of seizure of weapon of offence, medical tests by the investigating officer. 3. Evidence assembled, according to the prosecution, consists of the statements of eye-witnesses, namely, Chuni Lal and Joginder Pal, besides other witnesses of disclosure statement of seizure of weapon of offence, medical tests by the investigating officer. The trial court after perusing the evidence gathered during trial and hearing the rival contentions of the parties found evidence unreliable and prosecution miserably failed to connect the accused with the commission of the crime and consequently, recorded the order of acquittal on 29-6-2001. 4. Mr. Baldev Singh, Govt. advocate appearing for the state, has assailed the legality and propriety of the order of acquittal recorded by the trial court dated 29-06-2001 chiefly on twin grounds; firstly that the trial court has not appreciated the evidence in its proper perspective; secondly there has been non-application of judicial mind. As regards the first contention raised, it is pertinent to point out that the prosecution produced Chuni Lal and Joginder Pal alleged to be the eye witnesses of the occurrence. The evidence provided by PW Chuni Lal as to the effect that he was returning to his house on 7-8-98 at 5.00 p.m. when PW Joginder Pal met him on the way. After covering the distance together upto the house of Balak Ram, he proceeded to his house all alone as PW Joginder Pal went to the house of Bitto, son of Balak Ram. It is also in his evidence that here he had covered a distance of 10/15 feet when he saw Kuldeep Raj inflicted axe blow on the deceased and latter fell on the ground. He had not seen Kailo Devi on spot at that time. Accused Kuldeep Raj chased him and caught hold of him at a short distance and threatened not to divulge about this occurrence to any body. He, however, narrated the incident to his father and the latter went to Chowkidar. The statement was recorded by the police 15 days after the incident. 5. In cross-examination, the witness stated to have been arrested by the police during investigation alongwith Joginder Pal and were compelled to make statement against the accused on 16-8-98. He denied to have made any such statement to the police when confronted with under section 161 Cr.P.C. This witness has further stated that whatever statement he has made against the accused is at the instance of the police and denied emphatically having seen the occurrence. He denied to have made any such statement to the police when confronted with under section 161 Cr.P.C. This witness has further stated that whatever statement he has made against the accused is at the instance of the police and denied emphatically having seen the occurrence. He also denied to have met Joginder Pal on the way and both proceeded together. Similarly, Joginder Pal and other alleged eye witness when deposed on the dictation of the police was declared hostile and subjected to cross-examination by the prosecution. He also reiterated and the PW Chuni Lal stated to have been kept in lock-up by the police for 8 days. He also unambiguously denied to have any knowledge about the murder. 6. Where as the PW Nazir Ahmed, Investigating Officer, stated to have recorded the statements of Chuni Lal and Joginder Pal on 16-8-98 and prior to that, none of them appeared before him to disclose about the occurrence. The evidence provided by PWs Chuni Lal and Joginder Pal does not even remotely connect the accused here with the commission of the offence. Evidence of Chuni Lal is self-contradictory. He has made no secret of the fact that whatever was stated against the accused was at the instance and out of the fear of the police, who kept him and Joginder Pal in lock-up. Whereas the PW Joginder Pal stated least about the commission of the offence by the accused, rather unequivocally denied to have any knowledge about the murder. If evidence of the investigating officer is to be believed with regard to the recording of the statements of Chuni Lal and Joginder Pal on 16-8-98, this makes it abundantly clear that this witness did not disclose about the occurrence to any body till that date. Where the witness does not disclose about the occurrence and remains silent for unexplained reasons, evidence of such witness is not worth of credence (Mazari Lal Vs. State (Delhi Administration), AIR 1980 SC 873), Apart from that, the evidence of both the alleged star witnesses, Chuni Lal and Joginder Pal suffers from material inconsistencies and glaring discrepancies and goes to the root of the matter, credibility of a witness is always tested upon the touch stone of his cross-examination. State (Delhi Administration), AIR 1980 SC 873), Apart from that, the evidence of both the alleged star witnesses, Chuni Lal and Joginder Pal suffers from material inconsistencies and glaring discrepancies and goes to the root of the matter, credibility of a witness is always tested upon the touch stone of his cross-examination. Both these witnesses have not been able to stand the test of cross-examination and therefore, do not appear to have a ring of truth so as to inspire confidence in the court. Their evidence is qualitatively and quantitatively insufficient to bring nexus between accused and the commission of the offence. Further, dent is found in the prosecution case when PWs Balak Ram and Ram Dayal stated to have been though attesting witnesses of disclosure statement made by Kuldeep Raj accused leading to the recovery of the weapon of offence, did not support and termed the contents of the recovery memos to be incorrect, in as-much as, PW Balak Ram denied any such disclosure statement made by Kuldeep Raj accused. The size of the axe (Tabbar) reflected in the recovery memo is 2½ in length with handle and with blade 12½" in length as against the description of the weapon of offence given by the doctor to be not more than 18" in length with its blade about 4 or 5 inches. This renders the entire exercise of recovery of the weapon of offence incredible and unbelievable in the manner projected by the prosecution. 7. It is meaningful to point out that in order to record every evidentiary circumstance, the probative link, strong or weak, must be made out with certainty. Link after link must be forged firmly with credible testimony, must form a strong chain of sure guilt binding the accused. Each link taken separately, must just suggest but when hooked on the next and on again may manacle the accused inescapably, only then can a concatenation of incriminating facts suffice to convict a man. Short of that is insufficient. The court must take a practical view of legitimate inferences flowing from evidence, circumstantial of direct. 8. The question then is, whether the cumulative effect of the evidence direct or circumstantial in the present case is such that the court can conclude not that the accused may be guilty but that he must be guilty. 9. The court must take a practical view of legitimate inferences flowing from evidence, circumstantial of direct. 8. The question then is, whether the cumulative effect of the evidence direct or circumstantial in the present case is such that the court can conclude not that the accused may be guilty but that he must be guilty. 9. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the Trial Court found that the evidence is lacking in credibility, contradicting each other in material particulars, does not prove a connecting link between accused and the commission of offence, on whose testimony explicitly reliance can be placed. It is always advisable to test the evidence of the witness on the anvil of objective circumstances in the case. Case of the prosecution becomes doubtful, when the eye witnesses do not support and the version given by the witnesses in the court is different from that in the statement made before the police (state of Haryana V. Gurdial Singh, 1974 SCC (Cri. J 30). 10. Further, it is also not trotted out from the evidence on record that the accused had a strong motive to get rid of deceased Darshan Lal. 11. The contentions raised by Mr. Baldev Singh, Govt. Advocate, during debate being both factually and legally unfounded did not merit acceptance. 12. We do not find any infirmity, legal or factual, in the order of acquittal propounded by the Trial Court on proper estimation and evaluation of the evidence let in by the prosecution and due application of legal mind, which invites interference by this court in this appeal. In the result, there is no case made out by the state-appellant in the appeal and is hereby dismissed.