Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 172 (JK)

State v. Makhan Singh

2002-05-23

B.L.BHAT, R.C.GANDHI

body2002
11. This Acquittal Appeal is directed against the judgment/order dated 3.12.1997, recorded by the Sessions Judge, Rajouri in Session file No.7/1995, titled State Vs Makhan Singh. 12. Briefly stating the case of the prosecution is that accused Makhan Singh was nursing a grudge against Karnail Singh deceased, Who was married to the niece of accused Makhan Singh and died on 1.11.1989 in her matrimonial house, after pouring kerosene oil upon her and then setting her ablaze; that then accused on 16 3 1995 went to the house of deceased Karnail Singh under the pretext of demand for Lassi, where he prevailed upon the deceased to accompany him to village kanara, where they visited the house of Jeet Kour, the sister of the deceased stayed there till evening and on return from that place they stayed for some time at the house of one Santokh Singh S/o Ravail Singh, then during night the accused took Karnail Singh deceased to kanara forest, where he with intention to do away with his life, started belabouring him and pushed him in a ditch, them dragged him for about 100 feet and left him all naked at the road in the said forest so that he shall be run over by some vehicle; that on the following day, Tirath Singh, informant, who is the father of deceased Karnail Singh, found him unconscious on the road and removed him to the hospital where the deceased after gaining consciousness on 24.3.1995 made a dying declaration and finally during the night intervening 24/25th March 1995 succumbed to his injuries. 13. The accused on being charge-sheeted by the Trial Court for an offence under Section 302-RPC, advanced the plea of complete innocence and refused to ;lead guilty. Trial Court, after appreciation of the evidence led in the case by the prosecution, came to dismiss the case of the prosecution and acquitted the accused, by virtue of its impugned judgment dated 3 12.1997. State-Appellant has assailed the impugned judgment, being infirm and based on wrong appreciation of evidence. 14. Heard learned counsel for the parties and have perused the record of the case. The prosecution in the bid to substantiate their case before the Trial Court has examined 20 witnesses out of a list of 26 witnesses. State-Appellant has assailed the impugned judgment, being infirm and based on wrong appreciation of evidence. 14. Heard learned counsel for the parties and have perused the record of the case. The prosecution in the bid to substantiate their case before the Trial Court has examined 20 witnesses out of a list of 26 witnesses. The witnesses examined are Tirath Singh PW1, Balwant Kour PW2, Puran Singh PW4, Daljit Singh PW5, Mohan Singh PW6, Jaswant Singh PW7, Santokh Singh S/o Ravail Singh PW8, Harbans Singh PW9, Santokh Singh S/o Gulab Singh PW10, Tajinder Singh PW11, Surjeet Kour PW12, Harjeet Kour PW13, Ravinder Singh PW14, Girdawar Mohd Iqbal PW15, H.C. Mohd Sharief PW16, Constable Mohd Qasim PW17, HC Bishandas PW18, Dr. Khem Raj Sharma PW19, girdhar Kumar Naib-Tehsildar PW20 and Investigating Officer Tej Krishan Handoo. 15. As indicated that the Trial Court after considering and appreciating the evidence of the said witnesses came to find the accused not guilty and the charge against him groundless, therefore, we are constrained to consider this entire evidence in the light of allegations levelled by learned counsel for the appellant against the said conclusion. For this a brief discussion of the prosecution evidence cannot be avoided. 16. The case of the prosecution rests on the evidence of a solitary eye witness, Harbans Singh PW9 and it has also relied on the following circumstances: - i) The dying declaration of deceased Karnail Singh; ii) Disclosure statement made by accused Makhan Singh during the course of investigation of the case, in consequence of which a bloodstained coat-parka was recovered at the instance of the accused; iii) The first wife of the deceased, who was niece of the accused, died in mysterious circumstances, after pouring kerosene oil on her person and then setting her ablaze, as a result, of which the accused was nursing a grudge against the deceased, thus had a motive to do awaywith the deceased; iv) That the accused and the deceased were last seen together; v) That the accused made an extra-judicial confession before Ravinder Singh PW14 to the effect to manage a compromise in the matter. 17. Coming to the evidence of PW9 namely Harbans Singh, who is listed as an eye witness of the occurrence, it is in the evidence of this witness that he had obtained a sanction for filling a pine tree in kanara forest. 17. Coming to the evidence of PW9 namely Harbans Singh, who is listed as an eye witness of the occurrence, it is in the evidence of this witness that he had obtained a sanction for filling a pine tree in kanara forest. On 16th March he found the accused belabouring the deceased. On his asking the accused threatened him with dire consequences, as result of which he managed escape to his house. It is after the accused was arrested that he disclosed this fact to the complainant. On cross-examination he has deposed that at 5-PM there is restricted movement in the area under army orders; that the felled tree was not converted into sleepers and he had engaged Sadhu Ram and Janu Sawers he had to remove the timber from that place. He got his statement recorded before the police after six days of the occurrence. This evidence of the witness is highly discrepant, unworthy of any credit and unreliable on the ground that he did not disclose the incident of belabouring the deceased by the accused will the accused was arrested on 22.3.1995. As per the version of this witness he witnessed the occurrence on 16.3. 1995 at 6-PM which means he remained tight-liped for about six days; secondly that as per his evidence at the place of occurrence movement of people was restricted under orders of the army, therefore, we fail to understand as to what, this witness was doing there when he had no business to perform because the pine tree for which he had obtained the sanction to fell, was yet to be converted into scants and he had no occasion to transport the said timber to his house. This being so, presence of Harbans Singh at the place of occurrence is highly improbable. Besides this, the deceased, as per the prosecution version, was a youngman in his early thirties. If the accused would have belaboured him, in that case he would have offered stiff resistance, as a result of which the accused, in the ordinary circumstances, would also have sustained injuries on his person. There is nothing in the evidence of the prosecution that the accused was, after his arrest, subjected to medical examination or any injury was found on his person. There is nothing in the evidence of the prosecution that the accused was, after his arrest, subjected to medical examination or any injury was found on his person. PW-14, Ravinder Singh, before whom the accused is alleged to have made the extra-judicial confession, has nowhere in his statement deposed that he found any injury or even a bruise on the person of the accused when he visited his house continuously from 18.5.1995 to 23.5.1995. 18. This takes us to the circumstances putforth by the prosecution against the accused. The celebrated law on the point is that when the case of the prosecution is resting on circumstantial evidence, the circumstances putforth must be separately proved. Each circumstance relied upon by the prosecution must be established by cogent and reliable evidence. The circumstances should be such as cannot explain of any other hypothesis, except the guilt of the accused. In other words there must be a complete chain, so far complete as not to leave any reasonable doubt for the conclusion consistent with the innocence of the accused. It must be such to show that in all human probabilities the act must have been done by the accused. Keeping all this in our mind, let us examine as to how far the circumstances putforth by the prosecution in the case in hand are proved. (i) - DYING DECLARATION: 19. The case of the prosecution is that on the following day of the occurrence i.e. 17.3.1995 the deceased in an injured condition was removed to the hospital at Nowshera where he remained unconscious upto 23.3.1995. On this day the deceased made a dying declaration and succumbed to his injuries during the night of 24th 25.3.1995. Said dying declaration is on the file which is marked as EXPWKR/1 and appears to have been attested by some body as it does not bear the designation or seal of the office of the attesting officer. The author of this document is shown to be S.H.O. Police Station Nowshera. The Investigating Officer, Tej Krishan Handoo has categorically on cross-examination deposed that the statement which was recorded in the hospital is not the dying declaration nor a statement under sec. 161-Cr P.C. This statement was recorded by the Headconstable under his dictation. The medical witness, Dr. Khem Raj Sharma. The Investigating Officer, Tej Krishan Handoo has categorically on cross-examination deposed that the statement which was recorded in the hospital is not the dying declaration nor a statement under sec. 161-Cr P.C. This statement was recorded by the Headconstable under his dictation. The medical witness, Dr. Khem Raj Sharma. B.M.O. Nowshera has deposed that the statement of the deceased was written by the police in his presence and was attested by him. With the same breath the witness has also deposed that the said statement EXPWKR was not recorded by the police in his presence but he got the statement confirmed from the deceased and then attested the same. This is also in his evidence that from 17.3.1995 upto 19.3.1995 the deceased was not fit to make the statement. However, he was fit to make the statement on 23.3.1995 at 2.15 P.M. On cross-examination the witness has deposed that he does not know who wrote the statement of the deceased and does not remember as to whether the thumb impression of the deceased was obtained on the statement in his presence or not. He does not remember the name of the officer who presented this statement before him. Police told him that the said statement of the deceased had been recorded both in question answer from and also in narrative form. PW1-Tirath Singh, who is the father of the deceased, has deposed that upto 14th March his son could not speak, however, on 24th day of the month the S.H.O. recorded statement of his deceased son in presence of a Havaldar and a doctor. PW-3 Balwant Kour who is the mother of the deceased has deposed that her husband brought the deceased to his house when he found the deceased naked on a road, the deceased had injuries on his person; that on the insistence of Tajinder Singh they removed him to the hospital at Nowshera where he remained unconscious for four days; that on her asking the deceased told her that the accused had pushed him in a ditch, dragged and bet him. Statement of the deceased was record in the hospital by the police in presence of the B.M.O. PW-II, Jaswant Singh, who is the material uncle of the deceased has deposed that his brother-in-law, the father of the deceased, told him that Karnail Singh is lying unconscious on the road, then he and his brother-in-law Tirth Singh, lifted the deceased from the spot and removed him to the hospital. The deceased gained consciousness in the evening of the following day; his statement was recorded in his presence which was recorded both the doctor and S.H.O, Separately. Then after 4/5 days of making this statement the deceased passed away. 20. From the afore-discussed evidence it is manifest that the said witnesses have contradicted each other with respect to this circumstance of making dying declaration by the deceased. As indicated above, the S.H.O. has put a doubt with respect to this statement, as to whether this was a dying declaration or not and the doctor is also not sure as to whether the deceased affixed his thumb impression on this document or not. Moreover he has also stated that the statement was not recorded in his presence. The Investigating Officer and the doctor have nowhere stated that the mother of the deceased was present at the time of recording of the statement. PW Jaswant Singh has deposed that statement of the deceased was recorded both by the SHO and doctor separately. PW Tirath Singh has deposed that it was the SHO who wrote the statement. Besides this, the case of the prosecution is that the deceased was not fit to make the statement upto 19th and on the other hand PW Jaswant Singh has deposed that on the following day of hospitalisation of the deceased, the statement of the deceased was recorded by the doctor as well as by the I O. This being so the prosecution has miserably failed to prove that the alleged dying declaration was made by the deceased involving the accused in the alleged offence. Statement 2. Disclosure / of Makhan Singh: 21. The author of the disclosure statement appears to be the SHO Nowshera. It appears to have been prepared on 26.3.95 while it is purported to have been made by the accused during custody of the police. Tirath Singh PW1, father of the deceased and Jaswant Singh PW7, are shown as marginal witnesses of this document. The author of the disclosure statement appears to be the SHO Nowshera. It appears to have been prepared on 26.3.95 while it is purported to have been made by the accused during custody of the police. Tirath Singh PW1, father of the deceased and Jaswant Singh PW7, are shown as marginal witnesses of this document. PW Tirath Singh has stated that the disclosure statement was prepared but he has nowhere proved the contents of this document and has also not proved whether as a consequence of this statement coatparka was recovered at the instance of the accused. PW Jaswant Singh has also testified his signatures on the said document but has nowhere in his evidence proved its contents. The I.O. also has not bothered to prove the contents of this document by deposing that the accused stated about the contents of this document before him. In a slipshod manner he has stated that the said document is in his hand. All this goes to show that the disclosure statement on the file is not proved. Thus is not a legal evidence, which can be read against the accused. Ill-Death of first wife of the deceased and motive: 22. It is the case of the prosecution that the accused was nursing a grudge against the deceased on the ground that his niece was married to the deceased who died under mysterious circumstances by pouring kerosene oil upon her person and then setting herself ablaze. In this behalf the case of the prosecution is that with respect to the death of his wife of the deceased, who happened to be the niece of the accused a case for an offence u/s 306-RPC was registered under FIR No. 92/1989 in P/S Nowshera in which the parents of the deceased were charge-sheeted. Therefore, the question of nursing grudge by the accused against the deceased does not arise under normal circumstances. When this is in the evidence of PWs Santokh Singh S/o Gulab Singh, Santokh Singh S/o Ravail Singh and Tajinder Singh that the relations in between the accused and the deceased were very cordial. In view of this discussion, this circumstance is also not proved. IV-LAST SEEN : 23. The case of the prosecution is that on 16.3.1995 the accused arrived in the house of the deceased and demanded lassi. In view of this discussion, this circumstance is also not proved. IV-LAST SEEN : 23. The case of the prosecution is that on 16.3.1995 the accused arrived in the house of the deceased and demanded lassi. He could not be obliged and finally he took the deceased along to village Kanara and went to the house of Harjeet Kour, sister of the deceased, where they stayed till evening. With respect to this circumstance the prosecution has examined Puran Singh, Mohan Singh, Balwant Kour, Surjeet Kour, Harjeet Kour and Tarjeet Singh. PW Puran Singh has deposed that about 15/ 20 days prior to the occurrence the accused visited his house and told him that the deceased wife of Karnail Singh was his niece and also told him that he asked Tirath Singh, father of the deceased to enter into a compromise in the said case, failing which they shall have to face serious consequences. He has further stated that the occurrence has taken place because of enmity. PW Surjeet Kour has also deposed that one month prior to the occurrence the accused extended threats of dire consequences to them after coming to their house by saying that they should enter into a compromise with the parents of the deceased Jeet Kour. If this evidence of PWs Puran Singh and Surjeet Kour is believed, in that case the deceased would have been in know of the fact of threats extended by the accused to his parents, therefore, in normal and natural circumstances he would have never obliged the accused in accompanying him to village Kanara and then taking him to his sisters house. PW Harjeet Kour, sister of the deceased, has deposed that the accused alongwith the deceased arrived to her house at 4.30 PM. They both stayed there for some time and left at 6/6.30 Pm via house of PW Santokh Singh. On the following day she learnt that her brother has been found injured. PW Santokh Singh has stated that on 16.3.1995 at 4.00 PM he found the deceased going to his sisters house situate at village Kanara and left her house at 6/6.30 PM. While going to the house of his sister and then coming back, he found the deceased in the company of the accused. PW Santokh Singh has stated that on 16.3.1995 at 4.00 PM he found the deceased going to his sisters house situate at village Kanara and left her house at 6/6.30 PM. While going to the house of his sister and then coming back, he found the deceased in the company of the accused. On their return from the house of sister of the deceased, they came to his house also and then left the place in the evening of the same day at 7.PM. His son-in-law Mohan Singh alongwith PW Tarjeet Singh arrived to his house and told him that they have seen the accused and the deceased sitting in the forest. On the following day the deceased sitting in the forest. On the following day the deceased was found lying on the road. The deceased and the accused had no dispute between themselves. PW Mohan Singh has deposed that about a year back be went to village . Kanara for getting Desi ghee. Since it was dark he took his cousin brother, ? Tarjeet Singh alongwith him. Enroute, they found the accused and the deceased laying on the ground but he did not talk to them. After visiting his father-in-laws house they returned from a different route. On cross-examination he has deposed that he spotted the accused and the deceased in the forest at about 5.30/5.45 PM. The deceased was his maternal cousin brother. Tarjeet Singh PW has deposed that on 16.3.1995 he and Mohan Singh in the evening went to village Kanara and returned back from the other route and on this route he found the deceased and the accused, who were talking to each other. At that point of time accused Makhan Singh was standing and the deceased Karnail Singh was sitting. On cross-examination he has deposed that they spotted the deceased and the accused at 5.30 PM when it was dark. Towards the close of his statement he has deposed that while going to the house of Santokh Singh they spotted Makhan Singh and Karnail Singh and on return they did not spot them. Statement of these two witnesses is contradicted by PW Harjeet Kour who has deposed that her deceased brother and accused left her house at 6 to 6.30 PM. Statement of these two witnesses is contradicted by PW Harjeet Kour who has deposed that her deceased brother and accused left her house at 6 to 6.30 PM. PW Santokh Singh also has deposed that on 16.3.1995 he found both the deceased and the accused leaving the house of deceaseds sister at 6/6.30 PM and enroute they visited his house also. If this version of Santokh Singh and Harjeet Kour is believed in that case PW Mohan Singh and Tarjeet Singh had no occasion to see the accused and the deceased together in the forest at 5.30 PM. Ordinarily if both the persons i.e. the accused and the deceased have set out for their house at 6 or 6.30 PM from the sisters house of the deceased as per the version of PW Harjeet Kour and PW Santokh Singh then this would have taken them some time to reach the forest Kanara and would have been there after 6.30 PM in all circumstances, when it would have been pitch dark. This being so the prosecution evidence about last seen is highly contradictory and does not inspire any confidence. V-Extra-Judicial Confession 24. With respect to this circumstance the prosecution has examined PW-14 Ravinder Singh. It is in his evidence that after the occurrence from 18.3.1995 to 21.3.1995, accused continuously approached him at his house with the request that he should get the matter compromised so that he can be released on bail and also stated that he has committed a mistake for which he want to perform Akhand path at Amritsar. This is also in his evidence that he is disclosing this fact before the court for the first time. (Note: - The occurrence is alleged to have taken place in the month of March 1995 and the evidence of this witness before the trial Court came to be recorded on 12.10.1995). This means that the witness has remained tight-lipped about this important fact for about seven months and he has not even disclosed this fact to the police during the course of investigation when his statement was recorded u/s 161-Cr.PC. The witness has no explanation to offer for not disclosing this fact to the police or to any body else immediately after the accused disclosed to him that he has committed a mistake and for which he wanted to perform akhand path and he may get the matter compromised. The witness has no explanation to offer for not disclosing this fact to the police or to any body else immediately after the accused disclosed to him that he has committed a mistake and for which he wanted to perform akhand path and he may get the matter compromised. This being so, the evidence of this witness is highly discrepant, unworthy of any credit, thus cannot be believed. Therefore, this circumstance also is not proved by the prosecution. 25. The entire evidence led in the case by the prosecution is highly discrepant, shaky and cannot connect the accused with the crime. The prosecution story may be true but between may be true and must be true there is inevitably long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence (See AIR 1957 SC 636, at page 645). 26. In view of the aforesaid discussion, the conclusion of the Trial Court that the prosecution has failed to prove its case cannot be said to be without reasons. We find the approach of the Trial Court in appreciating the prosecution evidence on the file within the parameters of law and conforming to norms means for appreciation of evidence in a criminal case. The case has been tried and judgment announced in accordance with the prescribed procedure. We do not find the judgment to be vitiated or legally infirm. In the result the appeal is dismissed. File be consigned to records.