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2003 DIGILAW 207 (JK)

Prem Singh v. State Of J. &K.

2003-07-11

B.L.BHAT, R.C.GANDHI

body2003
Per : Gandhi, J. This Criminal appeal has been preferred against the judgement and order dated 16.3. 2000 whereby learned Additional Sessions Judge, Ramban has convicted and sentenced the accused to undergo life imprisonment and fine of Rupees 3000/- in such default whereof each accused was to suffer six months imprisonment in addition to substantive sentence imposed. 2. The prosecution story in brief is that on December 25, 1996, Sakhi Mohd. son of Ghulam Mohi-ud-din Naik R/o Paristhan lodged a verbal report with Police Post Ramsu to the effect that during the intervening night of 24th and 25th December 1996, some unidentified persons have killed one Mathura Singh son of Mussadi Ram Thakur R/o Charhalan with gun bullet. The Rifle of the deceased is lying beside the body of the deceased Murder has been committed by unidentified persons because of some enmity or with some purpose. He has been asked by the Chowkidar Ghulam Nabi of the area to lodge the report. Report No. 6 was entered in Roznamacha and copy submitted to Police Station Banihal which came to be registered as FIR No. 164/96 for offence u/s 302 RPC. 3. The Investigating Agency during investigation collected the evidence and produced the challan. The accused pleaded not guilty and were tried. The trial court on appreciation of evidence has convicted and sentenced the accused. 4. The appeal has been preferred on the grounds that the trial court has neither rightly appreciated the evidence nor applied the law to the facts of the case and on the basis evidence as led by the prosecution, the appellants accused deserve acquittal as the prosecution has failed to connect the accused with the commission of alleged offence. 5. We have heard the learned counsel for tile parties, perused the judgement under appeal and also appreciated the evidence. 6. On perusal of file, it is seen that the charge framed against the accused on 6.5.1997 reads as under: "That on 24/25 December 1996 at Charhalan Tehsil Banihal, you alongwith accused -- Prem Singh with criminal intention to murder the deceased Mathura Singh caught him and the Prem Singh fired at the deceased and murdered him. 6. On perusal of file, it is seen that the charge framed against the accused on 6.5.1997 reads as under: "That on 24/25 December 1996 at Charhalan Tehsil Banihal, you alongwith accused -- Prem Singh with criminal intention to murder the deceased Mathura Singh caught him and the Prem Singh fired at the deceased and murdered him. Thereafter in connivance with Prem Singh you took out empty shell from the rifle of Prem Singh, Kept the shell of the bullet in the rifle of the deceased which was allotted to him so that it may give a colour of suicide. In the like manner, other accused has also been charge-sheet with the same as indicated in the aforesaid charge-sheet." 7. The prosecution during the course of investigation recorded the statements of the witnesses under section 161 Cr.P.C, and set up the story that the deceased Mathura Singh is the Commander of Village Defence Committee and Prem Singh and Charan Dass are members of VDC. Prem Singh and Charan Dass came to the house of Bhuri Devi, mother of the deceased, and told her that Mathura Singh has developed illicit relation with Parvati wife of Prem Singh, so may be asked to desist from such action and in the evening of the same day, Prem Singh and Charan, Dass came to her house and had conversation with Mathura Singh for some time. Mathura Singh also lives in the same house. Prem Singh sought leave and told to Mathura Singh that he will discharge duty for the night at the house of Charan Dass and thereafter both of them left to their houses. Mathura Singh who was in the house of Mst. Bhuri Devi gave medicine to his mother and she served him with food. Mathura Singh and Udham Singh, another son of Bhuri Devi, had the meal together and Udham Singh thereafter left Mathura Singh also left alongwith his rifle. After an hour, Udham Singh and Madan Singh both brothers came to their mother Bhuri Devi and enquired about Mathura Singh. They told her that gun Sound is heard somewhere in the deodar trees and thereafter both went for search of Mathura Singh. After an hour, Udham Singh and Madan Singh both brothers came to their mother Bhuri Devi and enquired about Mathura Singh. They told her that gun Sound is heard somewhere in the deodar trees and thereafter both went for search of Mathura Singh. After sometime Udham Singh and Madan Singh came back and told Bhuri Devi that they enquired from Prem Singh and Charan Dass and they have told that Mathura Singh might have been killed and you go otherwise you will also be killed VDC have been given Rifles by the Government being the area as militancy affected. Next day it came to the notice that Mathura Singh has been shot dead. 8. The story set up before the trial court by the prosecution witnesses is that the FIR was written by PW Ghulam Nabi who handed over it to PW Shakhi Mohd son of Ghulam Mohi-ud-Din PW, for presenting it before Police post, Ramsu Whereas the case of the prosecution is that the oral report has been lodged. 9. Another contention is that the prosecution witnesses before the trial court have stated that on the day of occurrence, accused came to the house of Bhuri Devi and left the house of Mathura Singh who was their commander. Accused had told that they will kill Mathura Singh because he had developed illicit relation with Parvati wife of Prem Singh. After going, from their house sound of gun shot was heard and thereafter search of the deceased was started, whereas the statements recorded by the police do not support it. 10. There are two versions projected by the prosecution witnesses, one by virtue of statements recorded under section 161 Cr.P.C. as narrated above and the other, before the trial court, which are quite contradictory to each other. Where contradictory versions are projected by the prosecution, the conviction cannot be recorded as held by the Supreme Court in case titled State of Haryana v. Gurdial Singh & Anr., (AlR 1974 SC 1871) holding that: "20. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. According to the version given in court, it was Pargat Singh who shot dead the deceased, while according to the other version it was Gurdial Singh of Ramana who was responsible for the crime. Again, according to the version given in the court, the occurrence was by Avtar Kaur. As, against that, the version contained in the police statement was that Avtar Kaur had not witnessed the occurrence. In view of these contradictory versions, the High Courts in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained. We see no ground to interfere with the judgement of the High Court. The appeals fail and are dismissed." 11. Another damaging circumstance to the case of the prosecution is that the statement of PW Ghulam Mohi-ud-Din was recorded on 13.12.1997 after a period of one month and 20 days of the occurrence. This witness was available but the statement could not be recorded and reason therefore has also not been explained. According to this witness, he sent his son Shakhi Mohd to lodge a report written by PW Ghulam Nabi, Chowkidar who is his brother. He has further stated that he saw the accused taking the deceased from Walnut trees to the place of occurrence. One accused had caught hold the deceased from the arms and the other from legs. This incident was narrated by him to Ghulam Nabi, Chowkidar In police statement he has stated quite differently. There is no written complaint on record. His statement has been recorded after a period of one month and 20 days and from the evidence, it is manifest that he has remained tight lipped for the said period and did not disclose this fact to the police till his statement was recorded u/s 161 Cr.P.C. PW Ghulam Nabi has not corroborated him, as a result of which his evidence cannot be relied upon for recording conviction. It is settled principle of law that if a statement is recorded after a long delay, it loses its legal significance and credibility. It is settled principle of law that if a statement is recorded after a long delay, it loses its legal significance and credibility. Learned counsel for the appellants in support of this plea has relied upon judgements delivered in cases titled Balakrishna Swain v. State of Orissa, (AIR 1971 SC 804) Ganesh Bhavan Patel & Anr. v. State of Maharastra, (AIR 1971 SC 135) and Satnam Singh v. State of Rajasthan (AIR 2000 SC 423). Defence counsel has also relied on judgment delivered in case titled Chanchal Kumari and others v. Union Territory, Chandigarh, (AIR 1986 SC 752). 12. Ghulam Mohi-ud-Din is the only eye witness to prove the charge of murder. Testimony of solitary witness is very important from the point of accused and prosecution both. This witness remained tight lipped for over one and half month and assuming that he disclosed it to Ghulam Nabi Chowkidar, his version has not been supported by the said prosecution witness. Therefore, this witness cannot be said to be reliable witness and no conviction can be recorded on his solitary testimony. 13. A vital defect in the prosecution case is that the prosecution has projected that appellant-accused Prem Singh fired from his gun No. 50510-K which has been seized from him whereas according to FSL report the round has been shot from gun No. 32886 which has been alloted to deceased Mathura Singh, which means that the fire taken place from gun of deceased and not of accused. This changes the complexion of whole story of the prosecution. We have no reason to disbelieve the expert opinion with regard to firing from the gun. This smashes whole case of the prosecution. 14. For the aforesaid reasons, we are of the considered view that the learned trial court has not looked to these aspects of the case, as a result of which has come to erroneous conclusion in holding the accused guilty of commission of offence. The judgement of trial of the trial court, therefore, cannot be maintained and is set aside and the accused-appellants are acquitted of the charge. Bail bonds are discharged.