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2007 DIGILAW 137 (JK)

State v. Jagdev Singh

2007-08-02

NIRMAL SINGH, Y.P.NARGOTRA

body2007
1. This acquittal appeal filed by the State is delayed by a day. However, on the oral application of the learned Additional Advocate General, We condone the same and take up the appeal for admission. 2. This acquittal appeal is directed against the judgment dated 23-2-2007 passed by the learned Additional Sessions Judge, Reasi whereby he has acquitted the accused/ respondent from the charge of the commission of the offences under section 302 RPC read with section 30 of the Arms Act. The Police of Police Station, Mahore registered FIR No. 106/ 2003 on the basis of a wireless message sent to the Police Station by VDC , SPO Parkash Singh that on 17-10-2003 the deceased Budhi Singh had gone for fetching grass and while he was returning back in the evening alongwith one Raj Singh un-known terrorists fired indiscriminately upon said Budhi Singh and Raj Singh, in consequence whereof Budhi Singh died on spot after receiving bullet injuries, whereas Raj Singh managed his escape. It was further alleged in the message that one VDC member of Mahal came on the spot and he was also fired upon where-after an encounter ensued for about 2/ 2 1/2 hours. The terrorist however, taking advantage of dense forest and darkness managed to run away. 3. After registering the FIR the police initiated investigation and after completion whereof found that the accused/ respondent Jagdev Singh was having illicit relations with the wife of the deceased Budhi Singh. On account of which the deceased Budhi Singh had been threatening the accused which resulted into enmity between them. On the day of occurrence the accused took the rifle belonging to his father and committed the murder of Budhi Singh. The VDC members of the area mis-took the firing to be the firing of militant and so they also opened fire. The accused during the investigation was arrested and on his disclosure statement one 303 rifle was recovered from the residential room of his house. Same was seized and was sent for Forensic Examination. Finding the accused responsible for the murder of the deceased Budhi Singh, the police presented the charge-sheet against him for seeking his trial for the commission of the offence under section 302 RPC and 30 of the Arms Act. 4. The accused/ respondent denied the charges and claimed trial. Same was seized and was sent for Forensic Examination. Finding the accused responsible for the murder of the deceased Budhi Singh, the police presented the charge-sheet against him for seeking his trial for the commission of the offence under section 302 RPC and 30 of the Arms Act. 4. The accused/ respondent denied the charges and claimed trial. So the prosecution examined PW-1 Ajit Singh; PW-2 Parkash Singh; PW-3 Romal Singh; PW-4 Inder Singh; PW-5 Prem Singh; PW-6 Harnam Singh; PW-7 Angrez Singh; PW-8 Kewal Singh; PW-9 Roop Chand; PW-10 Sushma Devi; PW-11 Sunita Devi; PW-12 Sukhdev Singh; PW-13 Chattar Singh and PW-14 Ramesh Chander. The accused also entered the defence and examined DWs Raj Singh and Krishan Dutt. 5. We have carefully gone through the statements of witnesses on the file. 6. None of the prosecution witnesses have seen the accused firing the shot upon the deceased, as none of them was present on the spot. The only witness who could have deposed about the manner in which the occurrence took place was Raj Singh, the person who was in the company of the deceased Budhi Singh at the time of the occurrence, but he has not been examined by the prosecution as witness. It is the defence which has produced him in the witness box. DW Raj Singh deposed that on the day of occurrence he was accompanying the deceased Budhi Singh. When they reached near the house of Parkash Singh firing took place from the right side. Three shots were fired. One shot injured Budhi Singh on his chest and the other shot injured the right hand and the third shot injured Budhi Singh on left leg. He further deposed that the firing had come from the direction of his house. After three minutes the VDC members had also come on spot. So he has totally negatived the story of firing of the shot by the accused upon the deceased. He is most natural and material witness. There is no reason to dis-believe him. He has not in any manner connected the accused with the occurrence. This is one aspect. 7. The other aspect of the matter is that except in the evidence of PW-8 Kewal Singh, PW-10 Sushma Devi and PW-11 Sunita Devi no incriminating circumstance against the accused has appeared. There is no reason to dis-believe him. He has not in any manner connected the accused with the occurrence. This is one aspect. 7. The other aspect of the matter is that except in the evidence of PW-8 Kewal Singh, PW-10 Sushma Devi and PW-11 Sunita Devi no incriminating circumstance against the accused has appeared. The only incriminating circumstance appearing in the evidence of PWs_Sushma Devi, Sunita Devi, Parkash Singh, relates to extra judicial confession of the accused. 8. PW Parkash Singh states that the Incharge Police Station called him in the Police Station to enquire from the accused about the occurrence and on his inquiry in the Police custody the accused disclosed that he had killed the deceased which in our opinion is incredible and cannot be relied upon as there is no evidence to corroborate the same. It seems highly improbable that an accused would confess his guilt before a person summoned by the police that too in the lock up of the Police. Even otherwise confession made in custody of the Police is inadmissible. 9. PW-10 Sushma Devi, the widow and PW-11 Sunita Devi, the mother of the deceased have also spoken about the accuseds confessing the guilt to them but the same can also not be believed for the absence of strong corroboration. They would be the last persons on earth for the accused to commit himself for the crime. PW 8 Kewal Singh in his evidence has stated that 2/3 days after the occurrence the accused told him that he had killed the deceased. He does not deserve to be believed because had it been true he would not have kept it as secret until his statement under section 161 Cr.P.C was recorded on 18-10-2003. Even otherwise there is no corroboration. It needs to be noticed that all the above said witnesses have deposed about independent confessions of the accused but none finds support from the other witnesses. 10. The accused has not been sufficiently linked with the occurrence by any trustworthy evidence. There is inordinate delay in recording the statements of witnesses under section 161 Cr.P.C. Learned Sessions Judge after taking note of the infirmities in the prosecution evidence and on coming to the conclusion that charges had not been cogently and completed proved by the prosecution against the accused, acquitted the accused. There is inordinate delay in recording the statements of witnesses under section 161 Cr.P.C. Learned Sessions Judge after taking note of the infirmities in the prosecution evidence and on coming to the conclusion that charges had not been cogently and completed proved by the prosecution against the accused, acquitted the accused. In our considered view there is no legal or procedural infirmity in the order of acquittal impugned in this appeal, therefore, it does not call for any interference. We therefore, dismiss the appeal.