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2008 DIGILAW 1077 (PNJ)

State Of Jammu And Kashmir v. Janardhan

2008-05-22

VIRENDER SINGH, Y.P.NARGOTRA

body2008
Judgment 1. The respondents accused who were tried for commission of the offence under section 302/34 IPC for having committed the murder of deceased Darshan Kumar have been acquitted by the learned Sessions judge, Kathua by his judgment dated 21.2.2005. 2. State in order to question the legality of the acquittal of the accused respondents has come up in appeal but not within the period of limitation prescribed. Since there is huge delay of 962 days it has filed condonation application as well for seeking condonation of delay. 3. We have heard the learned AAG for the State and perused the record. 4. Delay defeats the legal remedy unless the cause of delay is fully, reasonably and sufficiently explained. The petitioner/state has sought to explain the delay in the application by stating as follows: "that the orders/judgment in the said case was pronounced on 21st Feb. , 2005 whereafter it was referred to concerned authorities for obtaining their legal opinion as to whether appeal was to be filed or not. The matter was examined by the concerned authority and ultimately the sanction was granted to file the appeal vide Govt. order No.755-LD (ACQ) of 2005 dated 31.3.2005 and then learned Govt. Advocate was requested to file the appeal. That all the documents required for preparation of appeal were made available to the learned Govt. Advocate but somehow the needful was not done despite repeated requests for filing the appeal. That the learned Govt. Advocate resigned and ultimately another Govt. order No.2092-LD (ACQ) of 2007 dated 27.8.2007 came to be passed in terms of which the learned Additional Advocate general has been requested to file the appeal. Copy of this order was also sent to the former Govt. Advocate with a request to hand over all the records to the Director, litigation in order the appeal. That the record lying with the learned govt. Advocate was received on 15.9.2007 by the Director Litigation and the same was handed over to the learned Additional Advocate General in third week of September, 2007 for preparation of the appeal. " The above explanation in our view does not sufficiently justify the delay caused in filing the appeal. The state has not filed the affidavit of the concerned Govt. Advocate to show as to what prevented him from filing the appeal immediately. " The above explanation in our view does not sufficiently justify the delay caused in filing the appeal. The state has not filed the affidavit of the concerned Govt. Advocate to show as to what prevented him from filing the appeal immediately. If it was because of some in-action on the part of the State functionaries the fault of not filing the appeal would not be attributable to him but if he was negligent still it would be for the state to show that on its part there was no negligence in the matter and that it has diligently done what was required to be done by it. In the instant case the State appears to have slept over the matter for more than two years. Why it did not enquire from the concerned Govt. Advocate as to the filing of the appeal within reasonable time from the date of assignment of the case to him, there is no answer. From the explanation tendered it is manifest that at no stage the state showed the diligence and promptness in filing the appeal. The delay thus has not been sufficiently explained for warranting indulgence of the Court. 5. We, therefore, do not feel inclined to condone the delay but in order to see that the accused do not get undue benefit of the default of the State. We have gone through the judgment of the learned trial Court. 6. The accused/respondents trial emanated from the registration of the case in police Station, Hiranagar on the verbal report of PW1 Manohar Lal who informed the police on 11.6.2002 that his son deceased darshan Kumar, who was working in Jandk fire Services, after having dinner at 9 p. m. left for duty. Since he and his son had enmity with Janardhan and Machander kumar accused they with criminal intention to kill took the deceased to roof of their house and struck him with some sharp edged weapon causing injuries on his head and other parts of the body resulting into his death and that his dead body was lying on spot. On the said information the police registered the case against the accused under FIR No.76/2002 for commission of offences under Sec.302/34 RPC and started investigation. On the said information the police registered the case against the accused under FIR No.76/2002 for commission of offences under Sec.302/34 RPC and started investigation. The Investigating officer proceeded on the place of occurrence which was the roof of the house of the accused situated at village Dangaroli, Tehsil hiranagar and found the dead body of the deceased in a pool of blood. He prepared the site plan, the photographs thereof were taken and from the place blood stained sand, cement and plain sand, cement, sample of blood and one piece of blood stained wood were seized and sealed on spot. The dead body was then taken into possession and after filling the fard Surat Hal form the postmortem on the dead body was got conducted from the Medical Officer, SDH hiranagar and at that time the clothes worn by the deceased viz. one under-shirt and one underwear blood stained were seized and seizure memos prepared. Blood sample from the dead body was taken and seizure memo was prepared thereof. 7. During the course of investigation the accused were taken into custody on 12.6.2002. They made the disclosure statements regarding their own blood stained clothes which were subsequently recovered at their instance. The sealed packets were got re-sealed and were sent to Forensic science Laboratory, Jammu for Chemical examination. After recording the statements of the witnesses in terms of Sec.161 cr. P. C. and concluding that accused had committed the offence the investigating agency filed the charge-sheet against them. 8. Before the learned trial Court the charges were framed against the accused and they pleaded not guilty and the prosecution was directed to lead evidence for establishing the guilt of the accused. The prosecution examined PWs Manohar Lal, gopal Krishan, Sansar Chand, Thakur dass, Bhola Ram, Hans Raj, Sushil Kumar, jagdish Singh Patwari, Dr. Tariq Mehmood, avtar Singh Naib Tehsildar and Jatinder misra Naib Tehsildar. 9. As per the evidence of the doctor who conducted the postmortem PW Dr. Tariq mehmood, Asstt Surgeon, SDH Hiranagar, the deceased was found to have following injuries: 1. Lacerated wound right side of forehead 2 cm in length; 2. Lacerated wound 3" on chin; 3. Lacerated wound 5" on occipital region; 4. Bleeding right ear; 5. Fracture of occipital bone. State of nature Orifices: 1. The eyes were partially opened; 2. Right ear was bleeding; 3. The Urethra was sadden in appearance; 4. Lacerated wound right side of forehead 2 cm in length; 2. Lacerated wound 3" on chin; 3. Lacerated wound 5" on occipital region; 4. Bleeding right ear; 5. Fracture of occipital bone. State of nature Orifices: 1. The eyes were partially opened; 2. Right ear was bleeding; 3. The Urethra was sadden in appearance; 4. The occipital region, hair were smeared with blood. The brain substance was ecchymosed and ventricles filled with blood. In his opinion the cause of death was due to the injury to medulla oblongata where vital centers are located. According to him there was injury to cerebra vascular structures including cerebellum. State of shock had ensued due to the head injury. 10. From the nature of the injuries found to have been sustained by the deceased it is quite manifest that he died unnatural death because of the injuries which could have been caused by a blunt object, so the question arising or consideration is as to who caused the said injuries. 11. The place of occurrence admittedly was the roof top of the house of the accused respondents. It is also an established fact that there was no stair-case or ladder for reaching on the roof top. How the deceased reached on the roof top of the house of the accused is a mystery which has remained unfolded by the investigation. Though PW1 by lodging the report had stated that accused had taken the deceased to the roof of their house for killing, yet there is no evidence of any witness for establishing this fact. Even there is no evidence to show that the accused was last seen in the company of the accused. There is no eyewitness to the occurrence. Though PWl Manohar Lal in his FIR has stated that accused took the deceased on the roof of their house, where they inflicted injuries on him by some sharp edged weapon but when he came in the witness box he admitted the fact that he acquired the knowledge of the dead body of the deceased lying on the roof top of the house of the accused from PW Gopal krishan. PW Gopal Krishan who is the numberdar of the village has not come forward to say that he saw the accused inflicting injuries upon the deceased on their roof top. PW Gopal Krishan who is the numberdar of the village has not come forward to say that he saw the accused inflicting injuries upon the deceased on their roof top. His evidence is that when he was sleeping in his house accused Machhinder Sharma came to him and told him that he had seen some intruder on the roof of the house and when he went to enquire from him, there he had a scuffle with that person in which he had also sustained some injuries on his arm and that intruder was lying un-conscious on the roof. On receiving the said information pw Gopal Krishan went to the roof top and saw the deceased with the light of torch whereafter he reported this matter to the father of the deceased PWl Manohar Lal. 12. So far as the disclosure and recoveries are concerned, the witnesses before whom the accused are alleged to have made the disclosure statements and effected the recoveries have tendered shaky evidence which cannot be relied upon for proving the recovery of the blood stained clothes. Moreover the prosecution has not through any evidence shown that the blood stained clothes of the accused bore the blood of the same group which was of the deceased. 13. So far as accused Janardhan is concerned, there is absolutely no incriminating evidence available in the statements of the prosecution witnesses. The prosecution thus has only established the fact that accused Machhander Sharma had come to pw2 Gopal Krishan and informed him about the scuffle which he had with the intruder on his roof top resulting into an injury to him and that the intruder was lyingun-conscious on his roof-top. In his statement recorded under Sec.342 Cr. P. C. the accused Machhinder sharma has explained the said circumstance like wise and the learned Sessions Judge has dealt with the said circumstance in the following manner: "the question now arises as to whether his explanation is reasonable and should be accepted. In his statement recorded under Sec.342 Cr. P. C. the accused Machhinder sharma has explained the said circumstance like wise and the learned Sessions Judge has dealt with the said circumstance in the following manner: "the question now arises as to whether his explanation is reasonable and should be accepted. Considering the nature of injuries found on the person of Machhinder and the nature of injuries found on the person of deceased which have been opined by doctor witness pw11 to be sufficient in the ordinary course of nature and being caused with the blood stained log sufficiently demonstrates that the log in question has been used by Machhinder in inflicting these injuries on the person of Darshan Kumar, the deceased and by virtue of those injuries the brain substance of deceased had got ecchymosed and there was fracture of occipital bone and there was 5" lacerated wound on occipital region speaks for itself. Why the deceased had been on the roof of the house of accused during night and where his shoes and T-Shirt had been removed is not explained. The dead body has been found without shoes without T-Shirt and without having pant on what has happened to the shoes and the T-Shirt which are still missing? What should have been the object of deceased to go on the roof of the house of accused are such questions for which no explanation is offered either by prosecution or by defence. The prosecution case regarding this aspect is that there was animosity between accused and the deceased and accused used to threaten deceased on earlier occasions but this fact denied by father of deceased which raises doubt for what purpose the deceased had gone there but the fact remains that Machhinder accused has himself admitted having grappled with the deceased to save himself from the clutches of the deceased and made him unconscious then went to report to the village Numberdar PW Gopal Krishan leaves no doubt to hold that the occurrence has taken place on the roof itself in view of attending circumstances visquantity of blood oozed from the deceaseds body being present there as reflected by photographs A1 to A5. It is natural that in a house where there are more than 5/6 adult members and fight takes place on the roof of their house, someone from the family would have awoken from the sleep but being members of the same family and the act having ensued the result viz. death of a human being could not be cited as witness nor would have supported the prosecution case. None from the adjoining house viz. house of charan Dass which has been used by some witness to reach the roof of the house of accused has been cited or examined as a witness in this case. The house of Charan Dass happens to be in between the house of the deceased and the accused. The deceased in this case has paid the price of his precious life for having committed house trespass during night viz. having gone on the roof of the house of the accused admittedly during the period after sunset and before sun-rise. " The learned Sessions Judge has further observed: "in such a situation where an intruder has committed house breaking by night, the law has recognized the right of occupant and owner of that house to guard his house and the privacy of his house that has been recognized as right to defend properly under Sec.103 of the Ranbir Penal Code. As per section 103 RPC justifies homicide in case of robbery, house breaking by night, arson and theft, mischief (if house trespass causing apprehension of death or grievous hurt. " In the instant case accused machhinder has been found having injuries/bide marks by PW2 Gopal krishan, Numberdar at 2 in the night when Machhinder has reported before him about the events resulting into unconsciousness of intruder which proved to be the death of the intruder speaks for itself that the availability of the pile/stock of fire-wood being stocked on the roof thus being readily and easily available, there was no light, the injuries on the person of machhinder could not have been caused after death or after the intruder/deceased would have been made unconscious speaks that the intruder attacked him before having fallen to then the retaliatory stack in self-defence by accused Machhinder it being a night time so it was a battle of wits between intruder and the accused. The above proposition assumes importance especially in a militancy prone state where special powers have been given to Armed Forces to help civilian administration for keeping peace and order in the society at large and to protect the lives and property of the citizen. In darkness how can one expect as to whether the Intruder and the person happen to be in front of each other different to the recognized in darkness, it becomes a question of do or die. In such situations where a person is confronted with death he has to act to escape that death and if he does not act has to die. " In this way the learned Sessions Judge has exonerated the accused Machhinder sharma for the liability of causing death of the deceased. 14. We have carefully gone through the evidence of the prosecution and in our considered opinion the findings of the learned sessions Judge do not call for any interference. The learned AAG was not in a position to identify any reliable and convincing evidence on the basis of which the findings of the learned trial Court can be faulted with. We therefore, do not find any justifiable reason to interfere with the well reasoned judgment of the trial Court. 15. Above being the position on merits of the appeal, we are not condoning the delay caused in filing the acquittal appeal and therefore, dismiss the condonation application as well as he acquittal appeal of the state.