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2001 DIGILAW 307 (JK)

Chain v. State Of J. &K.

2001-11-29

H.K.SEMA, S.K.GUPTA

body2001
PER S.K. GUPTA, JUDGE: 1. We have heard Mr. Sunil Hali, learned counsel appearing for the appellant and Mrs. Seema Sheikhar, Govt. Advocate, for the respondents. 2. This Criminal Appeal is directed against the judgment and order dated: 31-01-1991 passed by Sessions Judge, Jammu, by which he has convicted the accused appellant, Chain, for committing the murder and sentenced him to imprisonment for life and a fine of Rs. 500/- in proof of offence under Section 302 RPC. 3. Facts that culminated in the prosecution of the accused depicted in narration are that, the deceased, RamDass, had put Haria, the father of the accused, in possession of land held by him when shifted to Village Kotar to settle on the land provided by his in-laws. On the death of Haria, accused and his brother alongwith their mother started living in the house of the deceased consisting of two rooms. When Jatoo, brother of the accused, got a portion of the land transferred in his name as owner under the Agrarian Reforms Act and the deceased came to know about it, he returned to the village to assert his right. The deceased resided in one of the rooms of his house as the other was occupied by the accused and his brother. The accused, however, did not like the return of the deceased to the village to re-affirm his rights over the land, which he had given to their father, Haria, since died, on his own. In pursuance of some altercation that ensued between the deceased and the accused, the latter inflicted blows with a Darat held by him on the neck of the deceased and committed his murder. PWs, Sardaro alias Sardar Singh and Gian Chand, who repaired to the scene, on hearing the exchange of hot words and witnessed the occurrence. On a report lodged by PW, Dhuni Chand, Chowkidar and Balwant Raj about the incident, led to the registration of the case against the accused under Section 302 RPC. After the conclusion of the investigation, the case was finally sent to trial for offence under Section 302 RPC. The learned Trial Court, after the conclusion of the trial, found the accused guilty of offence of murder and sentenced him accordingly. 4. Mr. After the conclusion of the investigation, the case was finally sent to trial for offence under Section 302 RPC. The learned Trial Court, after the conclusion of the trial, found the accused guilty of offence of murder and sentenced him accordingly. 4. Mr. Hali, learned counsel appearing for the appellant, vehemently urged that the evidence provided by the eye witnesses is highly contradictory, discrepant and at variance in material particular. Their evidence is not accord with the medical testimony and, therefore, it is qualitatively and quantitatively insufficient to warrant the conviction of the accused. His further contention is that, even the circumstantial evidence including the alleged extra-judicial confession of the accused, discovery of weapon of offence and presence of blood stains on the shirt of the accused, besides motive, do not provide a nexus between the accused and the commission of the offence and, thus, is inconsistent with the hypothesis that the accused alone could have killed the deceased. Lastly, it was submitted by Mr. Hali that there being no reliable, firm evidence assembled by the prosecution, it would be highly unsafe to hold the accused guilty of committing murder of the deceased and record his conviction. 5. Mrs. Seema Sheikhar, learned Govt. Advocate, on the other hand, argued that the direct evidence provided by the eye witnesses coupled with medical testimony, further supported by incriminating circumstances, manacle the accused inescapably in the commission of the crime. That the circumstances connecting unbroken chain of links lead to only one inference that the accused committed the crime. 6. In this case, the evidence relied upon by the Trial Court is both direct and circumstantial. Direct evidence consisting of the statements of PWs Sardaro alias Sardar Singh and Gian Chand, who happened to reach on spot first in point of time on hearing the altercation between the accused and the deceased. Both these witnesses happened to be from the same village. On the fateful day, Sardar Singh, PW, while working in his field near the house of the deceased, when got attracted by the altercation in the house of the deceased, on reaching the house of the deceased, the witness found the accused possessing a Darat and inflicted blow on the deceased on his neck. On the fateful day, Sardar Singh, PW, while working in his field near the house of the deceased, when got attracted by the altercation in the house of the deceased, on reaching the house of the deceased, the witness found the accused possessing a Darat and inflicted blow on the deceased on his neck. Before he could reach near the accused, another blow with a Darat was given to the deceased, as a result of which, the deceased fell on the ground. On seeing the witness coming nearer, the accused proceeded towards him and threatened, as a result of which, he alongwith PW. Gian Chand, had to withdraw. The accused thereafter rubbed the Darat with the ground and wiped off the blood stains. The accused thereafter made a slip to nearby jungle. When this witness alongwith Gian Chand, PW, went nearer to the deceased, found him in a pool of blood and dead. He informed Balwant Raj, his brother, who reported to Sarpanch, Mir Mohd. Whereas Gian Chand informed the Numberdar and other villagers, who also reached the spot. The witness further stated that the accused later on was brought from the nearby jungle and handed over to Mir Mohd. Sarpanch. By the time, the Police party had also, reached the village the same day and arrested the accused. The accused made a disclosure statement to the police during investigation while in custody, which led to the recovery of Darat, the weapon of offence, at his instance. So is affirmed in the testimony of PW, Gian Chand, another eye witness of the occurrence. He also stated to have proceeded towards the house of the deceased on hearing the noise. When he drew near to the house, found PW, Sardaro alias Sardar Singh, near the place of occurrence. He witnessed the accused inflicting a Darat blow to the deceased. The accused thereafter rubbed the blood stains on the Darat with the ground and fled away. When he alongwith Sardaro, PW, reached near the deceased, found him dead due to the injuries caused by the accused with the Darat. According to this witness, the accused happens to be the son of brother of the deceased and the latter had given his landed property to his brother, father of the accused, in order to boost their financial conditions. The evidence provided by these witnesses, namely, PWs. According to this witness, the accused happens to be the son of brother of the deceased and the latter had given his landed property to his brother, father of the accused, in order to boost their financial conditions. The evidence provided by these witnesses, namely, PWs. Sardaro alias Sardar Singh and Gian Chand, is consistent, natural, straightforward, convincing, reliable and trustworthy. Nothing inherently improbable or unnatural has been trotted out from the pungent cross-examination to cause a speck of doubt on their veracity. The evidence provided by the eye witnesses with regard to the manner in which the crime has been committed by the accused, the weapon of offence used by the accused in causing the murder of the deceased, the place of occurrence and the presence of the witnesses on spot at the relevant time remained uncontroverted and unchallenged in their cross-examination. It was not even suggested to the witnesses with regard to their interest in the prosecution of the accused so as to render their testimony tainted and smack of partisan. This makes it abundantly clear that both these eye witnesses are independent, neither interested in the plaint or bore any animosity towards the accused. Their evidence support to their testimony is found in the evidence of Balwant Raj, who stated to have been informed by PW, Sardaro, Immediately after the occurrence that the accused had killed the deceased. Thereupon, he reported to Sarpanch. Mir Mohd, about the occurrence and the latter also affirmed in his evidence that Balwant Raj and PW Hukumi apprised him that the accused had killed the deceased. It was then PW, Mir Mohd, who had sent two persons in search of the accused in the jungle, when reached the place of occurrence. The statements of these witnesses further lend support to the evidence provided by the eye witness, PW Sardar Singh, and rendered their evidence credible and believable. The Apex Court in the case of Tarjinder Singh V. State of Haryana, AIR 1994 SC 503, has held that where there is no dispute regarding presence of the witnesses on the spot and their testimony is corroborated by medical and other circumstantial evidence, they are liable to be accepted. 7. Apart from that, in the chain of circumstantial evidence, relied upon by the Trial Court, there is the extra-judicial confession of the accused. 7. Apart from that, in the chain of circumstantial evidence, relied upon by the Trial Court, there is the extra-judicial confession of the accused. The accused as apprehended by the villagers in the jungle and when brought to the place of occurrence, many people had assembled there prior to the arrival of the police. PW, Mela Ram, when asked the accused about the murder of the deceased, the later confessed that he had killed the deceased with a Darat. It is also in his evidence that the police had not arrived there by that time. The police, according to him, reached late at night. In the absence of any suggestion to the witness in his cross-examination, as to whether this confessional statements, elicited from the accused under coercion or duress, such a confessional statement is said to have been made voluntarily. In the like manner, it is found in the evidence of PW, Mir Mohd, Sarpanch, that the accused had also made a voluntary confessional statement to him before the arrival of the police as to the manner in which he killed the deceased. No suggestion was even put to this witness of having secured the confession under duress. Even voluntarily confession of the accused about the causing of murder of the deceased made to PW, Mir Mohd., stood affirmed in the evidence of PWs, Hukumi and Bando Ram. It has, thus, been sufficiently proved in the testimony of both these witnesses that the confession made by the accused was voluntary, when particularly their evidence to this effect remained uncontroverted. An extra-judicial confession, if satisfactorily proved to have been voluntarily made, is admissible in evidence as is held in case Baldev Raj V. State of Haryana, AIR 1991 SC 37. It must, therefore, be considered in the over all context of the prosecution case and the evidence on record. 8. In order to consider such contention worthy of belief, regard must be had to (i) the person to whom it was made; (ii) to the connection, if any, of the accused with him; (iii) the occasion or reason for the accused to go and make such a confession to him and (iv) the circumstances in which it was made. 8. In order to consider such contention worthy of belief, regard must be had to (i) the person to whom it was made; (ii) to the connection, if any, of the accused with him; (iii) the occasion or reason for the accused to go and make such a confession to him and (iv) the circumstances in which it was made. Where the extra-judicial confession is proved by an independent witness, who bore no animosity against the appellant, as in the instant case, there is no justification for disbelieving the evidence of such witness, particularly when extra-judicial confession has been corroborated by the direct evidence of the eye witnesses and the recovery of the weapon of offence at the instance of the accused. Undoubtedly, extra-judicial confessions are not usually considered with favour, but that does not mean that such a confession came from a person, who has no reason to state falsely and to whom, it has been made in circumstances, which tend to support his evidence, should not be believed. 9. The next circumstance, depended upon by the prosecution before the Trial Court, is the discovery of the weapon of offence, a Darat, in pursuance of the disclosure statement made by the accused. Mela Ram and Mir Mohd, PWs, happened to be the attesting witnesses of both the disclosure and discovery memos RXPW MR/1 and MR/2. Their evidence is to the effect that the police when interrogated the accused on the same night, the accused disclosed the place where he had kept the Darat and got discovered Darat from the Almirah of his room. The contents of disclosure and discovery memos stood proved in the testimony of the attesting witnesses. So is also confirmed in the testimony of PW Sardaro and Investigating Officer, Mohd. (sic). The discovery of Darat had been identified by PWs, Sardaro and Gian Chand, eye witnesses of the occurrence. The Darat, as per report of the Chemical Analyser dated 27-03-1986, was found to have been stained with human blood. The discovery of the Darat, a weapon of offence, in pursuance of the disclosure statement made by the accused, coupled with the report of the Chemical Examiner that it was stained with human blood, provided connecting link between the accused and the crime and, thus, conclusively proved the circumstances, 10. Autopsy was conduct on the dead body of the deceased by Dr. Autopsy was conduct on the dead body of the deceased by Dr. Pradeep Kumar and found as many as four injuries on the person of deceased. In the opinion of Dr. Pradeep Kumar, the cause of death was the hemorrhagic shock consequent upon the injury No. 1, which reads as under: ˜1. A horizontally placed incised wound 7 cm x 2.5 cm x 4 cm on upper part of the neck towards anterior and right side cutting through the thyroid cartilage on right side and anterior side on 3/ 4th of the circumference. This wound was also cutting right common carotid artery and jugular vein along with other small vessels. 11. According to Dr. Pradeep, all these could be possible by Darat, EXP-7, and was sufficient, in the ordinary course of nature, to cause the death. In cross-examination, doctor ruled out the possibility of treatment of injury No. 1, as the major vessels have been cut, when suggested. The manner in which the assault is committed, the weapon of offence used in the commission of the assault, the place of infliction of injuries, when all taken together, lead to the only conclusion that the accused intended to cause the death of the victim by inflicting injuries with the Darat on the vital part of the body. 12. Mr. Sunil Hali, advocate appearing for the appellant, strenuously debated that the accused had inflicted two injuries with a Darat, as is found in the evidence of eye witnesses, and their evidence being in conflict and at variance with the medical testimony does not bear a ring of truth. His further contention is that the doctor has given as many as four injuries on the person of the victim in the autopsy report. But it is in the evidence of PW, Sardar Singh, an eye witness, when he reached the place of occurrence on hearing the hot altercation between the accused and the deceased, he found that the accused possessing a Darat, gave a blow to the deceased on his neck. It is also in his evidence that when he drew nearer to the accused, the latter gave another blow with a Darat on the neck of the deceased. This witness was followed by Gian Chand, another eye witness of the occurrence at that time. It is also in his evidence that when he drew nearer to the accused, the latter gave another blow with a Darat on the neck of the deceased. This witness was followed by Gian Chand, another eye witness of the occurrence at that time. In this context, it may be pointed out that the possibility of the accused having inflicted the blows to the deceases with a Darat prior to the arrival of the eye witnesses on spot, particularly, when no such suggestion was made to the witnesses in their cross-examination by the accused-appellant. Assuming the witnesses showed slight discrepancy as to the number of blows, such a discrepancy in matters of detail may occur in the evidence of 2/3 witnesses. That is hardly a ground for rejecting their evidence, when there is a consensus as to the substratum of the case, as has been observed by the Apex Court in S.T. Shinde V. Maharashtra, AIR 1974 SC 791. Further, it is well settled proposition of law, where minor discrepancies, not going to the root of the matter, are found in the evidence to corroborate testimony of natural, principal and eye witnesses, the discrepancies should not be over-emphasized. (Balbir Singh V. State of Punjab AIR 1994 SC 969). The contention put forth by the appellants counsel, therefore, does not merit acceptance. 13. The seizure of the blood stained shirt, which the accused was wearing at the time of the occurrence, has been proved in the testimony of PWs. Mohd Mir and Mela Ram, its attesting witnesses. According to Serologist report, the shirt was found stained with human blood. The seizure of the blood stained shirt was effected by memo EXPW MR/7. It is neither the case of the prosecution nor of the defence that the accused also sustained any injury in the occurrence. The shirt was seized only because it was stained with blood, as is recorded in the memo. This fact, however, remained unexplained by the accused in a statement under section 342 of the Cr. P.C. as to how his shirt was stained with blood, except bare denial. Both the attesting witnesses of the seizure memo unambiguously stated that the shirt of the accused was stained with blood and this fact has stood affirmed by the report of the Serologist. The accused also admitted that his shirt was seized vide memo EXPW MR/7. P.C. as to how his shirt was stained with blood, except bare denial. Both the attesting witnesses of the seizure memo unambiguously stated that the shirt of the accused was stained with blood and this fact has stood affirmed by the report of the Serologist. The accused also admitted that his shirt was seized vide memo EXPW MR/7. This action is an important circumstance to provided corroboration to the prosecution case against the appellant. 14. The motive behind a crime is a relevant factor, of which evidence can be given. Motive may conceivably furnish the necessary corroboration. If the evidence shows that the accused, having a strong motive, had the opportunity of committing crime and established circumstances exclude the reasonable possibility of any one else being the real culprit, then the chain of evidence can be considered to be complete as to hold that Ram Dass, deceased, had put the father of the accused in possession of the land and himself shifted to village Kotar and settled on the land provided by his in-laws. The accused, after the death of his father, along with brother and mother, was living in one of the two roomed house of the deceased. Some of the land, belonging to the deceased, was got transferred by Jattu, the brother of the accused, in his name. This fact, however, has been proved both by oral and documentary evidence provided by PWs Sardaro and Chuni Lal and Patwari Chain Singh. The evidence of PW Sardaro is to the effect that when Jattu, brother of the accused, set up his claim of ownership on the land provided by Ram Dass, deceased, the latter returned to the village. Similarly, PW Chuni Lal, affirm that the deceased Ram Dass had kept a part of the land in his personal cultivation in village Dugnoo and visiting the village intermittently. The Revenue Record EXPW CS/1 and WXPW CS/2 proved in the testimony of PW. Chain Singh, Patwari revealed that Jattu, brother of the accused, is recorded in possession of 49 Kanals and 4 Marlas of land, which stood transferred in his name under Section 4 of the Agrarian Reforms Act vide Mutation No. 944 attested under the said Act as prospective owner. Chain Singh, Patwari revealed that Jattu, brother of the accused, is recorded in possession of 49 Kanals and 4 Marlas of land, which stood transferred in his name under Section 4 of the Agrarian Reforms Act vide Mutation No. 944 attested under the said Act as prospective owner. As is elicited in the statement of the PW Sardaro, when Jattu, brother of the accused, grasped the land, the deceased returned to village re-assert his right, the accused did not like it and got agitated by this claim and pursuant to the altercation that took place with the deceased, the accused attacked him and inflicted injuries with a Darat on the neck, a vital part of the body, which resulted in almost instantaneous death of the deceased. The fact that Jattu, brother of the accused, got a portion of the land, standing in the name of the deceased, mutated in his own name, on hearing of which, the deceased came to the village, is a strong motive for the accused to develop ill-feeling against the deceased. The prosecution, therefore, has proved the existence of some motive by overwhelming evidence, which remained unchallenged, to show why it developed in the mind of the accused impelling him to commit the crime. Motive is an inherent factor in a criminal matter in determining the guilt where there is only the circumstantial evidence available. The Trial Court rightly appreciated the circumstance of motive presented by the prosecution throughout the evidence in showing the possibility of some ire for the accused towards the victim and such ire after some altercation swelled up in the mind of the offender to such a degree as impel to commit the offence. 15. Another circumstance relied upon by Trial Court is the arrest of the accused immediately after the occurrence and his admission to the witnesses prior to the arrival of the police on spot. Conduct of the past kind must be conduct, which influences, or is influenced by any fact in issue or relevant fact. This implies, that there must be a direct or immediate relation between the conduct of the accused and the fact in issue that piece of conduct can be held to be discriminatory; it is no reasonable explanation except of the hypothesis that he is guilty. This implies, that there must be a direct or immediate relation between the conduct of the accused and the fact in issue that piece of conduct can be held to be discriminatory; it is no reasonable explanation except of the hypothesis that he is guilty. The conduct of the accused, in this case, consists of two parts; the first part pertains to the running away from the place of occurrence, after the commission of offence, towards the jungle, and the second, the confession of his guilt when asked by PW Mohd Mir in presence of other witnesses. It is normally the guilty, rather than innocent people, who run away, and in the like manner, it is generally the guilty, who make confessions and not the innocent people. The one piece of evidence may firm the other. It is clearly extracted from the evidence of PW Sardaro that the accused, Chain, fled away towards the jungle committing the offence. So, affirmed by PW, Mir Mohd, who when received the information about the murder of the deceased, saw the accused running towards the jungle. Thereafter, Mohd Mir asked Bandro Ram and Hukumi, PWs, to chase and apprehend the accused. These witnesses caught hold of the accused and brought him to the place of incidence, where may villagers had assembled. It was at that time, the accused made clean breast of his guilt, when exercised by PW, Mir Mohd. To the same effect is the statement of PW, Mela Ram that when asked at to who has killed the deceased, the accused confessed that he has killed the deceased with a Darat. There is no denial of the fact that the extra-judicial confession is permissible in evidence. In a long catena of decisions of the Supreme Court, the settled position of the present day is that, extra-judicial confession by itself, if otherwise is in conformity with the law and some other assuring material or circumstance, can be treated as substantive evidence. Having regard to the credibility to the witnesses to whom the extra-judicial confession has been made by the accused immediately after he was brought from the jungle, where he had fled away after the commission of the offence, it gains evidenciary value and is rendered acceptable. Having regard to the credibility to the witnesses to whom the extra-judicial confession has been made by the accused immediately after he was brought from the jungle, where he had fled away after the commission of the offence, it gains evidenciary value and is rendered acceptable. Since the appellant not only ran away from the place of occurrence, but also confessed guilt before the witnesses before the arrival of the police on spot. So this circumstance also stands conclusively proved. 16. The eye witnesses have given a cogent and consistent version in the manner in which he has committed the crime. Nothing was elicited in the cross-examination to dis-credit their evidence. Such evidence will inspire confidence in the mind of the Court. The direct evidence of the eye witnesses further stood corroborated in material particular by others incriminating circumstances, namely, extra-judicial confession, conduct of the accused, motive, discovery of weapon of offence, the presence of the blood stains on the shirt of the accused wearing at the time of the occurrence and the medical evidence, which unerringly point out to the guilt of the accused and are inconsistent with his innocence. The conclusion, on rational deduction, which reasonable minds make from the probative force of facts and circumstances, is that the accused is guilty of causing the murder of Ram Dass, deceased, on the fateful day. We are, therefore, of the view that the Trial court has rightly appreciated, estimated and evaluated the evidence produced by the prosecution in holding the accused guilty of murder and recording conviction. We, therefore, do not find any infirmity in the judgment/order pronounced by the Trial Court, holding the accused guilt and awarding sentence that calls for interference either. In the result, we dismiss the appeal, being devoid of merit, and confirm the finding returned of the sentence awarded by the Trial Court. Both the appeal as well as reference made by the Trial Court are disposed of accordingly.