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2003 DIGILAW 361 (JK)

State Of J. &K. v. Lal Singh

2003-11-19

PERMOD KOHLI, S.K.GUPTA

body2003
Per : S.K. Gupta, Judge. This appeal is directed against the judgment and order dated 17-08-1999 propounded by learned Sessions Judge, Kathua, whereby he has acquitted Lal Singh, accused, for offence under Section 307 RPC. 2. The case of the prosecution depicted in narration is that on 12th February, 1993, Ajay Kumar with his brother Manoj Kumar and father Vidhya Dhari was sitting on their shop located in Ward No. 2, Kathua, when Lal Singh alias Guchu arrived on his scooter at 7.30 p.m. and enquired as to why they have not closed their shop in response to a call given by Hindu Maha Sabha. On this, Manoj Kumar immediately retorted that it is their wish that they may or may not close the shop. The accused got irritated, took out the iron rod lying beneath the mat of the scooter and gave a blow on the head of Manoj Kumar, as a result of which, he sustained injuries, fell down and became unconscious. The accused, however, managed to escape from the spot after committing the offence. The injured was removed to hospital for treatment. A report to this effect, however, came to be lodged by Ajay Kumar with Police Station, Kathua, which led to the registration of a case under Section 307 RPC and investigation ensued. After the conclusion of the investigation, challan against the accused came to be presented to the Court of Chief Judicial Magistrate, Kathua and the accused was charge- sheeted for the offence under Section 307 RPC. The CJM committed the case to the Sessions Judge, Kathua. The trial Court, after recording the evidence and hearing rival contentions of the parties, held the evidence qualitatively and quantitatively insufficient to prove the guilt of the accused beyond any pale of doubt and, consequently, recorded his acquittal vide order dated 17-08-1999. 3. Mr. K.S. Johal, learned Additional Advocate General appearing for the appellant-State, vehemently urged that the trial Court has not appreciated the evidence in its proper perspective. The evidence provided by the injured, his brother and the father was consistent in material particulars and proved the guilt of the accused beyond any shadow of doubt. The trial Court, however, has not relied upon the evidence of the related witnesses and whittled down their evidence by branding it as interested, tainted and uncorroborated with any independent testimony. The evidence provided by the injured, his brother and the father was consistent in material particulars and proved the guilt of the accused beyond any shadow of doubt. The trial Court, however, has not relied upon the evidence of the related witnesses and whittled down their evidence by branding it as interested, tainted and uncorroborated with any independent testimony. That the prosecution case is consistent only with the hypothesis that it is accused, and the accused alone, who had committed the offence by assaulting Manoj Kumar with an iron rod on his head on the alleged day of occurrence. Whereas Mr. V.R. Wazir, learned counsel appearing for the accused-respondent, stated that there being no sufficient evidence on record to connect the accused with the commission of the crime, the trial Court has rightly disbelieved the evidence, being uncorroborated with the independent witnesses, and acquitted the accused. 4. We have heard Mr. K.S. Johal, learned Additional Advocate General appearing for the appellant-State, as well as Mr. Ved Raj Wazir, learned counsel appearing for the respondent-accused, in extenso. A minute examination of the facts and record on file has also been made, meticulously. 5. It may be pointed out at the first flush that the prosecution has sought to prove the guilt of the accused by placing reliance on the testimony of the eye-witnesses, namely, Manoj Kumar, injured, his brother Ajay Kumar and their father Vidhya Dhari, who was stated to be present on their shops at the time of incident. Before we advert to the evidence of the eye-witnesses, it is pertinent to point out that the occurrence is alleged to have taken place in the shop of the complainant, located in the market in Ward No. 2, Kathua, which is densely populated area with shops on both sides and a huge locality behind the shops. None of the witnesses has been examined either from the adjoining shops or from the locality in the area, though it has been given in the prosecution evidence that many people had assembled at the place of occurrence. Even Goldi and Bittu, who, according to the prosecution, had removed the injured to the hospital by a car, were neither examined by the Investigating Officer during investigation nor cited as witnesses in the challan, nor were produced by the prosecution in the Court, in sustenance of the charge against the accused. Even Goldi and Bittu, who, according to the prosecution, had removed the injured to the hospital by a car, were neither examined by the Investigating Officer during investigation nor cited as witnesses in the challan, nor were produced by the prosecution in the Court, in sustenance of the charge against the accused. No explanation, much less plausible explanation, has been tendered by the prosecution in not contacting the independent witnesses from the locality, who had repaired to the scene on hearing the noise nor withholding the evidence of Bittu and Goldi, who according to the prosecution, were present on spot. The prosecution case hinges on the evidence of eye-witnesses, who happened to be closely related to each other, being father and brother, and also the disclosure statement leading to the recovery of the weapon of offence, an iron rod. Manoj Kumar, victim of the offence, stated that prior to the occurrence, the accused had also threatened him with serious consequences in presence of a woman. He further stated to have not disclosed this fact to any body and even to the Investigating Officer before disclosing it to the Court, for the first time, in his deposition. It is also in his evidence that the accused came on a scooter and asked as to why they have not closed the shop in view of the call given by Hindu Maha Sabha. The accused, however, got irritated when he replied that to close or not to close their shop depends on their wish, and gave a blow with an iron rod on his head. He, however, could not tell as to on which side of the head, the accused had given a blow with the rod. He fell unconscious, as a result of the injuries sustained by him in an assault committed by accused Lal Singh. Whereas PW Ajay Kumar, who happens to be the complainant, has stated that the occurrence took place in January, 1993 and he was sitting in his shop when the accused came there on a scooter and enquired from their father about the non-closure of the shop, in view of the call given by Hindu Maha Sabha. When the latter expressed difficulty to close the shop, the accused brought an iron rod from his scooter and hit it on the head of Manoj Kumar, PW, his brother. When the latter expressed difficulty to close the shop, the accused brought an iron rod from his scooter and hit it on the head of Manoj Kumar, PW, his brother. He, however, denied to have made a statement to the Police under Section 161 Cr.PC, when confronted with it in cross-examination that the accused started beating his brother, who ran away and intercepted him and gave a blow with an iron rod on his head. So is the evidence provided by Vidhya Dhari, father of Ajay Kumar, complainant. He also stated in cross-examination that the statement given to the Police recorded under Section 161 Cr.PC. to the effect that the accused intercepted Manoj Kumar when he fled away and gave him a blow with an iron rod, to be untrue and incorrect. He denied to have made any such statement to the Police. There is a mark contradiction between the statements of the complainant, on the one hand, with regard to the date of occurrence given as January, 1993 and Manoj Kumar, victim, on the other, who stated about the occurrence to have taken place in February, 1993. It has come in the statement of PW Ajay Kumar, complainant, in cross-examination that in front of their shop, there is a street and about 700 people usually pass in a day. He also stated that he had been able to remove the victim Manoj Kumar to the hospital with the help of the people of Mohalla, who arrived on spot. He also stated that those people also accompanied them to the hospital, in particular, Goldi and Bittu sons of Radha Shamali, have been named there, to whom the indicated the car belongs to, in which the victim was taken to the hospital. The witness stated to have not been able to disclose the names of the persons from the locality, who came on spot and also accompanied him to the hospital along with the injured. It is highly unacceptable and against the normal conduct of the human being that he does not remember the identity and name of the persons from his own locality, who came on spot and assisted him in removing the victim to the hospital and also accompanied him there. Even Bittu and Goldi, named to be witnesses of the occurrence, have not been examined by the prosecution. Even Bittu and Goldi, named to be witnesses of the occurrence, have not been examined by the prosecution. According to PW Manoj Kumar, there is a Bakery shop located at a distance of 30/35 feet in front of their shop. He, however, could not say that any person was passing in front of their shop at the time when occurrence took place. The victim, Manoj Kumar, therefore, rules out the presence of any witness on spot when the incident took place. It is also in the evidence of the prosecution witnesses that the shop, where the occurrence took place, is located in a market and normally it remains crowded with people. Neither any witnesses from the locality nor, the adjoining shopkeepers have been named, who have but naturally seen the occurrence, produced and examined. Those would have been the natural witnesses of the occurrence and their evidence would have been straightforward, for being neither inimical to the accused nor friendly/interested with the complainant. The investigation of the case was conducted by Abdul Latif, SHO, who has since died. According to PW Davinder Singh, ASI, the place of the occurrence is a street, which is a public thorough-fare. Number of shops and houses are located in the street. He, however, did not record the statements of the shopkeepers, neither made any effort to know the names of the shopkeepers or the persons from the locality, who came on spot and witnessed the occurrence. 6. Adverting to the appreciation of the evidence, it is apt to point out that the question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. This apart, reference to decided cases is hardly apposite when the question before the Court whether the evidence of a particular witness should or should not be accepted. 7. The evidence provided by the witnesses, including the victim, in this case, who are very closely related to each other, being father and sons, in the absence of any corroboration with the independent testimony in the facts and circumstances of the case, in our opinion, required in-depth scrutiny, care, caution and circumspection. Undoubtedly, the term `related is not `interested. 7. The evidence provided by the witnesses, including the victim, in this case, who are very closely related to each other, being father and sons, in the absence of any corroboration with the independent testimony in the facts and circumstances of the case, in our opinion, required in-depth scrutiny, care, caution and circumspection. Undoubtedly, the term `related is not `interested. A witness may be called interested only when he or she derives some benefit from the result of a litigation. However, a witness, who is a natural one and is the only possible eye-witness in the circumstances of the case, cannot be said to be interested. But in the instant case, the evidence provided by these witnesses when taken in context with the attenuating circumstances including the non-production and non-examination of the independent and material witnesses, though available, and some of them also named by the complainant in his testimony, leaves a room for suspicion to creep into it, so as to cause a speck of doubt on their credibility. This we say so also because DW Ashok Kumar, who is residing in a house in front of the shop of the complainant in Ward No. 2, Kathua, stated that Manoj Kumar, victim, was sitting in front of his shop and teasing the girls passing by the street, to which the accused objected. He, however, learnt on the next day that Manoj Kumar has suffered some injury and enquired from the father of Manoj Kumar about it, the latter told that he sustained injuries by a fall. It is also in his evidence that the accused, while going on his maruti car, stopped it in front of the shop and asked Manoj Kumar why he was allowing the students to sit in his shop. He, however, denied to have known in cross-examination when asked by the prosecution as to whether any injury was caused by accused to Manoj Kumar. Similarly, another witnesses, DW Bansi Lal, in the case, also stated that after coming from the house of Th. Baldev Singh, Advocate, while passing from the shop of Vidhya Dhari, he saw many people gathered there. He saw the son of Vidhya Dhari lying on the ground and when asked, was told that Manoj Kumar had fallen from the shop and suffered injury. Baldev Singh, Advocate, while passing from the shop of Vidhya Dhari, he saw many people gathered there. He saw the son of Vidhya Dhari lying on the ground and when asked, was told that Manoj Kumar had fallen from the shop and suffered injury. This is also in his evidence that the people, who were present at that time, told him that Manoj Kumar had got fits. It is also in the evidence of this witness that shops were opened at that time and they were 50 in number including Ashok Kumar, DW. 8. Taking pragmatic view of the evidence tendered by the defence witnesses, who have been able to stand the test of pungent cross-examination, it cannot be said that the plea put across by the learned counsel appearing for the accused-respondent that the complainant, his father and the injured were inimical towards him on account of the fact that he expressed his anguish with regard to the boys sitting on his shop and teasing the girls passing through the lane, is unacceptable. 9. Where the Trial Judge in refusing to accept the testimony of the closest relations observed that the eye-witnesses are highly interested in the prosecution of the accused, therefore, their evidence has to be read carefully and cautiously and would be able to be accepted only when supported by independent evidence, it would not be correct to say that the Trial Judge has regarded the evidence with suspicion or has take it entirely in incorrect perspective. The possibility of partisan witnesses, in certain cases, to drag innocent persons to derive benefit in criminal prosecution and settle their score because of enmity, is one recognized in case Dalip Singh v. State of Punjab, AIR 1953 SC 364. It is settled proposition of law that when a witness holds the position of a relationship favouring the party producing him or a possible prejudice is caused to the other party, it is incumbent upon the Court to exercise appropriate caution when appraising his evidence and to examine its probative value with reference to mosaic of facts appearing from the record. And in such an event, it is open to a court to reject the evidence on the ground of proved prejudice and relationship. In such circumstances, the evidence of these witnesses looses their credibility on this score. And in such an event, it is open to a court to reject the evidence on the ground of proved prejudice and relationship. In such circumstances, the evidence of these witnesses looses their credibility on this score. The view taken by the Trial Court, in not accepting the evidence of the related witnesses, is also on the ground that no independent person has been examined in the case, though available, to unfold the realm of genuineness of the occurrence. Having taken into account that the state of affairs disclosed by the manner of investigation was not commendable and there was sufficient misbehaviour on the part of the prosecution agency, the Trial Court has approached the evidence and appreciated, assessed and estimated on the touch stone of reliability, and found that their evidence does not inspire confidence in the Court and is rather wholly unworthy to acceptance. What to talk of the witnesses, even the evidence provided by the complainant, Ajay Kumar, is not consistent with the evidence of his injured brother and the father as to the date of occurrence, besides other contradictions, glaring discrepancies and serious variations found in material particulars in their respective testimony as to the manner in which occurrence took place. 10. The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness, who is naturally involved in the fruits of his investigative efforts, suggest the legitimate search for corroboration from an independent or unfaltering source, i.e., human or circumstantial, to make judicial certitude doubly sure. Not that this approach casts any pejorative reflection on the Police Officers efficiency, but the hazard of holding a man guilty on interested, even if honest, evidence may impair confidence in the system of justice. 11. The non-examination of the independent witnesses, despite their availability, and the in-action on the part of the Investigating Officer in making endeavour to contact them, has created serious doubt about the genuineness of the prosecution case. 12. As regards the medical evidence is concerned, the injured, Manoj Kumar, was medically examined by Dr. Sunita Kothey. Her evidence was not available for having been left India for good. 12. As regards the medical evidence is concerned, the injured, Manoj Kumar, was medically examined by Dr. Sunita Kothey. Her evidence was not available for having been left India for good. The only course open, in such event, for the prosecution was to prove the certificate containing the injuries on the victim by producing the witness acquainted with the hand-writing and signatures of the witness under Section 47 of the Evidence Act. Dr. Suraj Bhagat, examined by the prosecution in his searching cross-examination, has stated with unerring clarity that he is not a hand-writing expert and Dr. Sunita Kothey has never signed the acquittance roll register in his presence, nor she has ever worked with him. So, the evidence provided by this witness is of no avail to the prosecution, rather renders additional support to the defence, when suggested to the witness, if injuries found in the certificate could be caused by a fall and reply given was positive. This further leaves a serious dent in the prosecution case. Regarding the recovery of the weapon of offence, an iron rod, the prosecution depended upon the disclosure statement allegedly made by the accused in Police custody. His disclosure statement is dated 1-3-1993 and its attesting witnesses are Ajay Kumar, Vidhya Dhari, son and father, in this way, brother and father of the victim. This statement evidently has been made in the Police Station. It was not elicited as to how these two witnesses happened to be there when the disclosure statement is stated to have been made by the accused leading to the recovery of the weapon of offence. The same witnesses happened also to be the marginal witnesses of the recovery memo, showing the recovery of weapon near Children Hospital, where it was kept hiding under the grass. The place of recovery is an open place, accessible to everyone and, in ordinary circumstances, cannot be attributed to the accused unless there is positive evidence, viz., disclosure made in the presence of independent witnesses and so the recovery in pursuance thereof. This renders the entire exercise of recovery shrouded with mystery, so as to provide a corroborative circumstance to provide a chain in the circumstances, connecting the accused with the commission of the offence. This renders the entire exercise of recovery shrouded with mystery, so as to provide a corroborative circumstance to provide a chain in the circumstances, connecting the accused with the commission of the offence. Having considered the facts and circumstances of the case and on going through the judgment of the Trial Courts in its entirety, we are clearly of the view that the order of acquittal recorded by the Trial Court is well reasoned and does not suffer from either any factual infirmity or legal frailty to invite interference in appeal. 13. In the result, we do not find any merit in this appeal and is, accordingly, dismissed.