Research › Search › Judgment

J&K High Court · body

2005 DIGILAW 310 (JK)

Pramod Kumar v. State Of J. &K.

2005-11-18

MANSOOR AHMAD MIR, R.C.GANDHI

body2005
(Per R.C.Gandhi, J) 1. This Criminal Appeal has been directed against the judgment and orders dated: 16.8.2001 and 22.8.2001 whereby the appellant/accused has been convicted and sentenced by the learned Sessions Judge, Anantnag for commission of offence under Section 302 RPC to suffer sentence of life imprisonment and under Section 309 RPC to suffer sentence of simple imprisonment of three months. The reference has also been made under Section 374 of Criminal Procedure Code to this court for confirmation of the sentence which has also been heard alongwith the appeal. 2. A report was lodged on 11.9.1997 by PW-5, Shri D.S. Maan, Officer Commanding F-Coy 85 Bn. CRPF in Police Station Anantnag stating therein that 85 Bn. was deployed in Handoor Building Eid Gah Road Anantnag for law and order duty and an incident of shooting took place in the said premises at 7.05 hours. It is alleged that constable Pramood Kumar shot at constable Deshpal Singh, as a result thereof, Deshpal Singh received injuries and has been shifted to the civil hospital for treatment. FIR No. 275/1997 was registered in police station Anantnag and the investigation entrusted to Mohammad Abdullah ASI, PW No.21. It is further stated that the appellant/accused has also attempted to commit suicide. He has caused injury on his chin with his rifle. He was also admitted in the hospital. It is also alleged that some of his colleagues succeeded in snatching riffle from the accused. The injured succumbed to the injuries in the hospital. Post mortem was conducted on the dead body on 11.9.1997 at 11.30 A.M. 3. During the course of investigation the weapon of offence viz 7.62 SLR rifle alongwith empty magazine besides fired and live cartridges were seized, wearing apparel of the deceased viz torn uniform shirt and torn undershirt were also seized and sent for examination to the J&K Forensic Science Laboratory, Srinagar. The report of examination has been received by the prosecution. The Investigating Officer prepared the site plan, collected other evidence and recorded the statements of twenty-two prosecution witnesses under section 161 Cr.P.C. 4. Challan was presented before the court. The appellant did not plead guilty. He was charge sheeted and put to trial. The report of examination has been received by the prosecution. The Investigating Officer prepared the site plan, collected other evidence and recorded the statements of twenty-two prosecution witnesses under section 161 Cr.P.C. 4. Challan was presented before the court. The appellant did not plead guilty. He was charge sheeted and put to trial. Out of the said listed witnesses the prosecution has examined PWs, Raju Yadev, Rakesh Kumar, Sheshi Bushan, Dayanand, D.S. Maan, L. Naik Abdul Rouf, Naik Bhim Sing, Chotay Lal, Sogna Ram, Rajinder Kumar, Surinder Paswan, Ghulam Hassan Khandey Photographer, Dr. Altaf Hussain Beigh, Shiekh Mohammad Shafi Scientific Officer Ballististics and Abdul Rashid Sub Inspector. On appreciation of the evidence and hearing learned counsel for the parties, the trial court has recorded the judgment of conviction and sentence for commission of offences by the appellant under Section 302 and 309 RPC relying upon ocular evidence of PW Raju Yadev and circumstantial evidence of PWs Rakesh Kumar, Sheshi Bushan, Chotay Lal, Abdul Rouf, D.S. Maan and Naik Bhim Singh besides the medical and other incriminating evidence. 5. Aggrieved of the judgment of conviction and sentence of the trial court, the appeal has been preferred by the appellant challenging the impugned judgment on the ground that the trial court has failed to appreciate the evidence in its legal perspective and the major contradictions and discrepancies in the statements of witnesses has not been correctly appreciated and recorded in the course of the impugned judgment. Even the evidenciary value of medical evidence and the evidence of recovery of weapon of offence has not been correctly appreciated. 6. We have heard learned counsel for the parties and perused the record. 7. Learned counsel for the appellant has drawn the attention of the court on the impugned judgment and the statements of prosecution witnesses for its appreciation by the court. On appreciation of the impugned judgment it is seen that the learned trial court has recorded that there is total corroboration of evidence of the prosecution witnesses and the prosecution has made out a case for conviction based on ocular evidence of Raju Yadev and circumstantial evidence of other witnesses. 8. We have appreciated the statements of prosecution witnesses. PW Raju Yadev, has stated in his statement that after the duty was over, they were deputed to lift the material in the building where the occurrence has taken place. 8. We have appreciated the statements of prosecution witnesses. PW Raju Yadev, has stated in his statement that after the duty was over, they were deputed to lift the material in the building where the occurrence has taken place. As soon as he entered in the building, the accused was still out side the building. He heard the voice of gun fire. On hearing the sound of the gun fire, he took position under the cot. Simultaneously the accused went inside the building. He was triggering fire after fire. It is further stated that when he heard the voice of gun fire, accused was in the room and Desh Paul received injuries and the injury caused was with the fire triggered from the rifle of the accused. He has also stated that when gun fire took place, he was in the room, as a result of injury of the gunfire Desh Paul deceased fell on the cot, thereafter, the accused wanted to kill himself with his rifle. The accused put his rifle on his chin and intended to fire. At this stage PW Rakesh Kumar came in the room and he snatched the rifle from the accused. Thereafter, the accused intended to take the weapon of deceased Desh Paul. PW Raju Yadev caught hold of the accused and in the meantime constable Sheshi Bushan came and he unloaded the magazine from the rifle then we both snatched the rifle of the accused. There was no animosity between the accused and deceased. The accused triggered five rounds of fire. On appreciation, we find that this witness has contradicted in own his statement. He stated that when the gun fire took place he was in the building and accused was yet outside. He has again said that on hearing sound of the bullet, he took position under the cot and the accused at that time went in the building. He has also stated that when the fire by the accused has hit Desh Paul Singh in the room while he was not there or was under the cot where he has taken the position. This circumstance rules out that he was not an eye witness to the occurrence. 9. PW Rakesh Kumar has stated that when he entered in the room where the injured and accused were, he saw the accused who had put his rifle on his chin and was sitting. This circumstance rules out that he was not an eye witness to the occurrence. 9. PW Rakesh Kumar has stated that when he entered in the room where the injured and accused were, he saw the accused who had put his rifle on his chin and was sitting. He snatched the rifle and gave to his officer. He has also stated that while he was going upstairs to the room, he saw PW Raju Yadev bringing down the injured Desh Paul on his shoulder. On appreciation of his statement, he does not support PW Raju Yadev that this witness snatched the weapon of offence from the accused or PW Sheshi Bhushan came and unload the magazine from the weapon of offence. 10. PW Sheshi Bushan has stated that he and PW Raju snatched the rifle and un-loaded the magazine and that he and PW Raju Yadev had caught hold of the accused and PW Raju took the injured to down stairs. He has excluded the presence of Rakesh Kumar who has stated in his statement that he snatched the rifle from accused and gave it to his officer. 11. PW Chotay Lal has stated that he said to PW Rakesh Kumar to go upstairs and see what has happen. PW Rakesh Kumar went up and reported to Chotay Lal that the accused has fired and he also brought the rifle of the accused. He has also stated that PW Sheshi Bushan was also with him. It is also stated that he has said to Abdul Rouf and Sheshi Bushan to bring the injured down. He contradicts to PW Rakesh Kumar who has stated that he snatched the rifle and gave it to the officer. He contradicts to PW Sheshi Bhushan also who has stated that he snatched the rifle and the magazines. PW Rakesh Kumar has not stated in his statement that he was commanded by Chotay Lal to go upstairs and see what has happened and he reported it to PW Chotay Lal. 12. PW Abdul Rouf has stated that he was Guard Commander. He directed PW Raju Yadev and PW Sheshi Bhushan to bring the injured down. In the meantime, D.S. Mann, Assistant Commandant came also directed to bring the injured. He has stated that he has brought down the injured loading him on the shoulder of the Raju Yadev. 12. PW Abdul Rouf has stated that he was Guard Commander. He directed PW Raju Yadev and PW Sheshi Bhushan to bring the injured down. In the meantime, D.S. Mann, Assistant Commandant came also directed to bring the injured. He has stated that he has brought down the injured loading him on the shoulder of the Raju Yadev. PW Raju Yadev has not supported the statement of PW Abdul Rouf. In his deposition PW Raju Yadev excludes the presence of PW Chotay Lal and PW Abdul Rouf. PW Sheshi Bhushan also excludes the presence of PW Chotay Lal. He has stated that rifle from the accused was snatched by Sheshi Bhushan and Raju Yadev, whereas, Rakesh Kumar says in his statement that he has snatched the rifle. 13. PW D.S. Maan has stated in his statement that while he was ascending the stairs of the building to the room where the occurrence has taken place, he saw Raju Yadev bringing down the injured on his shoulder. He contradicts to PW Abdul Rouf who has stated that he directed to bring down the injured in presence of PW D.S. Maan and brought down the injured being loaded on the shoulder of PW Raju Yadev. PW Maan has stated that he has seen the injured being brought down by PW Raju Yadev while he was ascending stairs and there arises no question of asking Abdul Rouf or other witness to bring the injured while he has seen the injured being brought by PW Raju Yadev. He has also stated that while he was ascending the stairs he met with PW Chotay Lal who showed him the weapon of offence. He contradicts PWs Rakesh Kumar, Sheshi Bhushan and Chotay Lal with regard to the bringing and snatching the rifle from the accused. 14. Learned counsel has also brought to the notice of the court that Investigating Officer seized the rifle alongwith fifteen live and five empty cartridges. Whereas, PW Bhim Singh has stated that he was on ammunition duty on that day. Rifle of the accused had come to him for deposit alongwith five empty cartridges and fifty-five life cartridges. The prosecution has not explained as to where the other forty cartridges has gone or how these forty cartridges come in possession of the accused. 15. PW Dr. G.M. Bhat, Assistant Surgeon has been examined by the prosecution. Rifle of the accused had come to him for deposit alongwith five empty cartridges and fifty-five life cartridges. The prosecution has not explained as to where the other forty cartridges has gone or how these forty cartridges come in possession of the accused. 15. PW Dr. G.M. Bhat, Assistant Surgeon has been examined by the prosecution. He has stated in his statement that he examined the accused who was conscious and well oriented. He saw lacerated wound over chin caused by some sharp object. He has proved the injury certificate exhibited as expw 15/1. He has opined that most probably the injury in question was self inflicted one. He identified the accused also in the court. 16. The prosecution also examined Dr. Altaf Hussain Beigh who has conducted the post mortem of the dead body. He has stated that no bullet was recovered from the body of the deceased and he cannot say from what distance gun shot had been fired. The weapon of offence has not been shown to him. 17. The prosecution though has cited PW Raju Yadev as eye witness but the prosecution could not prove from his statement that he was an eye witness. 18. Mr. Rathore, in support of the prosecution case and the impugned judgment has submitted that the case of the prosecution is proved to the extent that fire has taken place from the rifle of the accused causing injury to the deceased and that the accused and the injured only were in the room which is enough to convict and sentence the accused. 19. It is a case of circumstantial evidence. It is proved that there was no motive of committing the murder. In a case of circumstantial evidence where no sufficient motive for murder is proved, as the case herein that the prosecution has not proved any motive for the murder, the Apex Court in case titled State (Delhi Admn.) v. Gulzarilal, reported in AIR 1979 S.C 1382, while dealing such a case of circumstantial evidence observed as under: "...the entire prosecution case rests on purely circumstantial evidence, and on the question of motive, both the trial Court and the High Court have clearly held that no sufficient motive for the murder had been proved. We might also mention that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused. It is also well settled that the accused can be convicted on circumstantial evidence only if every other reasonable hypothesis of guilt is completely excluded and the circumstances are wholly inconsistent with the innocence of the accused. In the instant case, the prosecution has clearly fallen short of proving this fact as rightly found by the High Court." 20. In case of circumstantial evidence there should be complete and unbreakable chain of events to prove the guilt. In a murder case to be established by the prosecution on circumstantial evidence, the prosecution has to prove complete and conclusive chain of circumstantial evidence before accused can be convicted thereon, which does not mean that there is a special method of proof of circumstantial evidence. It is the duty of the court to consider circumstantial evidence in its proper perspective which means that there should be complete link of chain of circumstances with one another. Where a series of circumstances are dependent on one another they are to read as one integrated whole and not separately. It is not possible for the court to truncate and break the chain of circumstances as the very concept of proof of circumstantial evidence would be defeated in that event. Where the circumstantial evidence consists of chain of continued circumstances linking with one another, the court has to take cumulative evidence of the prosecution before acquitting or convicting the accused. It is not possible for the court to truncate and break the chain of circumstances as the very concept of proof of circumstantial evidence would be defeated in that event. Where the circumstantial evidence consists of chain of continued circumstances linking with one another, the court has to take cumulative evidence of the prosecution before acquitting or convicting the accused. The Apex Court in Ashok Kumar v. State of M.P. reported in AIR 1989, page 1890, while deciding a murder case sought to be proved by the prosecution on circumstantial evidence, has laid down four major tests to be satisfied by the prosecution which are extracted as under: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused: (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 21. In Kishore Chan v. State of H.P, reported in AIR 1990, page 2140, the Apex Court while dealing with the case of the prosecution based on circumstantial evidence for prove of the murder, the court for appreciation of the evidence observed in para No.7 of the Judgment as under: "In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances in broken, the accused is entitled to the benefit of doubt." 22. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances in broken, the accused is entitled to the benefit of doubt." 22. The Apex Court in Harendra Narain Singh v. State of Bihar, reported in AIR 1991, page 1843, while appreciating the evidence in a case resting on circumstantial evidence where two views were possible observed in para No.6 as under: "...There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused." 23. So far as the punishment awarded for commission of offence under Section 309 RPC is concerned, there is evidence on record that the injury is caused by sharp object. The case of the prosecution is that the accused has kept his gun on his chin and blood was oozing from the injury. The barrel of the gun is not sharp object. The evidence does not corroborate with the medical evidence. No prosecution witness has stated that the accused caused injury with his rifle or intended to commit suicide. The only evidence which is available on record is that he has kept his rifle at his chin and blood was oozing from the injury. This evidence is not sufficient to convict the accused for commission of offence under Section 309 RPC. 24. Taking into account the totality of circumstances, we find that there are serious discrepancies and contradictions as pointed out in the statements of the prosecution witnesses, therefore, the accused under such circumstances is entitled to the benefit of doubt. 25. For the aforesaid reasons, we are of the view that the trial court has not rightly appreciated the evidence and recorded the judgment of conviction and sentence. We for the aforesaid reasons reverse the judgment of the trial court, allow the appeal and set aside the impugned judgment of conviction and sentence. The appellant is directed to be set free.