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2009 DIGILAW 354 (JK)

Govind Singh v. State

2009-07-24

MUZAFFAR HUSSAIN ATTAR, NIRMAL SINGH

body2009
Nirmal Singh,J: 1. This criminal appeal has been filed by the appellant against the order dt. 23rd of Sept08, passed by the learned Sessions Judge, Udhampur, whereby the appellant has been convicted and sentenced to undergo simple imprisonment for life and payment of fine of Rs. 20,000/- under section 302 RPC and four months simple imprisonment under Sec.30 of the Arms Act. In the event of failure to pay the fine, the appellant has been further directed to undergo simple imprisonment for one year. 2. The learned Sessions Judge, Udhampur, has also made reference in terms of Section 374 of the Code of Criminal Procedure for confirmation of the sentence awarded to the appellant. 3. This judgment will dispose of the aforesaid Confirmation No.11/08 as also the appeal filed by the appellant. 4. The prosecution story in brief is that on 1st of June06, at about 6.25 p.m. when the deceased Ajit Singh, who was the son of the appellant was cutting some trees in the fields for converting the logs into firewood for selling the same, the appellant who was taking rest in his house which was about 100 ft. away from the fields, heard the sound of cutting of logs and on this, he brought his 12-bore gun and rushed towards the fields. The appellant on seeing the deceased cutting the trees, fired a shot on the chest of the deceased who died on spot. It was further stated that after killing his son, the appellant went to Chak bazaar along with his gun and in front shop of one Pawan Singh, broke his gun into three pieces to pull out the live cartridge which was stuck up in the beech. The appellant thereafter told the shop keepers that he has killed his son and is going to surrender before the police. After leaving the gun in front of the shop of Pawan Singh, the appellant, however, left for some unknown place. 5. On receiving the information about the said occurrence, an FIR No. 34 of 2006 came to be registered under Sections 302 RPC and 30 of Arms Act, by the SHO concerned in police station Rehembal. The police party led by the SHO concerned went on spot and prepared the site plan. The blood stained and simple clay which was seized was sealed on the spot. The dead body was shifted to the hospital for postmortem. The police party led by the SHO concerned went on spot and prepared the site plan. The blood stained and simple clay which was seized was sealed on the spot. The dead body was shifted to the hospital for postmortem. One axe which was used by the deceased for cutting the trees and six pieces of firewood were also seized. The SHO concerned then went to the shop of Pawan Singh, where he found the gun lying in front of the shop. The finger prints on the gun were obtained after summoning the mobile FSL team and the stuck up live cartridge was also removed from the barrel of the gun. All the three parts of gun which were lying infront of the shop of Pawan Singh were refixed and the gun along with cartridge was seized separately and sealed in the presence of the witnesses. 6. After investigation, the challan was presented in the court of learned Judicial Magistrate concerned, who committed the same to the court of Sessions Judge, Udhampur. The appellant was charge sheeted for the commission of offence under Section 302 RPC read with Sec. 30 of the Arms Act, to which he pleaded not guilty and claimed trial. 7. The prosecution in its endeavour to bring home the guilt examined as many as 27 witnesses namely PWs Rajinder Singh, Vidya Devi, Sunita Devi, Shiv Dev Singh, Pawan Singh,Vishwa Nath, Kuldeep Singh, SGCT, Mohd Latif, Hans Raj, Om Parkash, Sarpanch, Kamlesh Kumar, Photographer, Gandarb Singh, Canstable, Farid Ahmed, Farooq Ahmad, Patwari, Romesh Kumar SGCT, Hussain Din, retired ASI, Mohan Lal, HC,Mohd Rasheed, HC, Jagdish Singh, Constable, Raj Singh Jamwal, SGCT, Manzoor Ahmed Lab Assistant, Bishambar Singh, Gandarv Singh, Tehsildar, SL Bhat Scientific Officer, FSL, Jammu, Mool Raj, Scientific Officer FSL, Jammu,SH Bhukhari, Scientific Officer Ballistic FSL, Jammu, Dr. Vijay Kumar. 8. When the appellant was examined under Section 342 Cr.P.C to explain incriminating circumstances appearing in the prosecution evidence, he denied simpliciter and false implication. 9. Vijay Kumar. 8. When the appellant was examined under Section 342 Cr.P.C to explain incriminating circumstances appearing in the prosecution evidence, he denied simpliciter and false implication. 9. After appreciating the prosecution evidence on record and hearing the Public Prosecutor as also the counsel for the appellant, the learned trial court convicted and sentenced the appellant as stated in opening paragraph of this judgment, aggrieved by which the present appeal has been filed by the appellant whereas, as indicated above, the learned Sessions Judge has made the reference for confirmation of the conviction and sentence awarded to the appellant. 10. We have heard Mr Sethi, learned Senior counsel for the appellant, Mr SC Gupta, learned AAG appearing for the respondent-State and perused the record minutely. 11. The case of the prosecution primarily hinges on the statement of witnesses namely PW Vidya Devi, wife of the appellant, PW Sunita Devi Bhabi of the appellant and PW Shiv Dev Singh, brother of the appellant, who have been cited as eye witnesses and also other witnesses to the circumstance in whose presence the recovery of the gun and cartridges was made. The said witnesses have not supported the case of the prosecution. They were declared hostile and were allowed to cross-examine at length but the prosecution failed to connect the appellant with the crime. The said witnesses have not supported the case of the prosecution. They were declared hostile and were allowed to cross-examine at length but the prosecution failed to connect the appellant with the crime. However, the learned trial court has convicted and sentenced the appellant on the basis of following circumstantial evidence: "(1) Motive (2) Seizure of axe, fire wood, blood stained clay from the place of occurrence, from where the dead body the deceased was recovered with bullet injuries; (3) Seizure of 12 Bore gun belonging to accused with a live cartridge stuck up in the barrel and extra judicial confession made by him; (4) Presence of the finger prints of the accused on the seized gun; (5) Proof about the seized gun being in working order and bearing signs of recent discharge; (6) Recovery of pellets from the body of the deceased; (7) Recovery of used cartridge upon the disclosure statement of accused from his bed room; (8) Ballistic expert report about the use of recovered cartridge in the seized gun and passage of pellets extracted from the dead body of the deceased through the said gun belonging to the accused; (9) Conduct of the accused after the occurrence in remaining absent from his home till his arrest on next day from Chopra Shop area, a place far away from his home and not lodging any report with the police about the death of his son or making enquiries about his death; (10) Conduct of the accused in putting across a false defence about the commission of suicide by the deceased as well as offering no explanation about the incriminating circumstances and tendering false explanation during is examination U/S 342 Cr.P.C." 12. As indicated above, the learned trial court passed the order impugned on the basis of above circumstantial evidence. Therefore, in oder to sustain the conviction and sentence on circumstantial evidence alone, we have to see whether the chain of circumstantial evidence on which reliance has been placed by the learned trial court in passing the order of conviction and sentence against the appellant is complete and these circumstances point unerringly towards the guilt of the appellant and none else. For appreciation of circumstantial evidence,the guidelines laid down by the Apex Court in the case reported as 2002(4) RCR(Criminal) 95, Balu Sonba Shinde v. The State of Maharashtra, have to be taken into consideration which are as under: - "1/ That there must a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. 2/ Circumstantial evidence can be reasonably made the basis of an accused persons conviction if it is of such character that it is wholly inconsistent with the innocence o the accused and is consistent only with his guilt. 3/ There should be no missing links but it is not that everyone of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. 4/ On the availability of two inferences, the one in favour of the accused must be accepted. 5/ It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise." 13. In this case, the learned trial court has relied upon the circumstances noticed above. However, when we scanned the circumstantial evidence against the appellant upon which reliance has been placed by the learned trial court in passing the order impugned, we come to the conclusion that none of the above circumstance connect the appellant with the crime. 14. The first circumstance on which reliance has been made by the learned trial court is the motive. As per the prosecution, the motive for committing the crime was that the deceased being an unemployed earned his livelihood by cutting the firewood from the fields of his father i.e. appellant and selling the same. This was being opposed by the appellant which oftenly resulted in altercation between the two. As per the prosecution, the motive for committing the crime was that the deceased being an unemployed earned his livelihood by cutting the firewood from the fields of his father i.e. appellant and selling the same. This was being opposed by the appellant which oftenly resulted in altercation between the two. On the day of occurrence, when the deceased was cutting the firewood from the fields, the appellant on hearing the sound went to the fields along with his 12-bore gun and fired a shot at the deceased who died on spot. The witness to the motive i.e. PWs Vidya Devi, Sunita Devi and Shiv Dev Singh, have not supported the case of the prosecution that there was any quarrel between the appellant and the deceased on account of cutting the firewood from the fields.The said witnesses have also denied that on the day of occurrence, the appellant had gone to the fields with his gun and he fired a shot upon the deceased. Therefore, in absence of any evidence to that effect, it cannot be said that there was some motive on the part of appellant for killing the deceased. It would be apt to notice that the learned trial court at page 32 of the order impugned has observed that "even otherwise, for want of proof of motive, the prosecution case cannot be thrown out if there is otherwise overwhelming evidence against the accused....", which suggests that the motive has not been proved. The learned trial court, as noticed above, has observed that there is otherwise overwhelming evidence against the appellant but when the evidence is scanned, it does not connect the appellant with the crime. 15. The other circumstance taken into consideration by the trial court is that from the place of occurrence, it has been proved that firewood, blood stained clay, bullet ridden body of the deceased and an axe has been recovered. There is no denial to that effect. But once the motive, as indicated above, is not proved, then, recovery of firewood, blood stained clay and the seizure of axe is immaterial. In the present case, motive assumes importance and in the absence of the same, it cannot be said that the appellant has fired the shot at the deceased. 16. There is no denial to that effect. But once the motive, as indicated above, is not proved, then, recovery of firewood, blood stained clay and the seizure of axe is immaterial. In the present case, motive assumes importance and in the absence of the same, it cannot be said that the appellant has fired the shot at the deceased. 16. The further circumstance which has relied upon by the learned trial court in arriving at the conclusion that the appellant has committed the murder of the deceased is that the appellant after shooting the deceased went to the shop of PW Pawan Singh and after disengaging the parts of his gun, tried to pull out a stuck live cartridge from the barrel of the gun and thereafter left the gun in three parts infront of the shop of Pawan Singh and after making confession against him and other shopkeepers regarding killing of his son left the spot. 17. As per the prosecution, the gun was seized in the presence of PW Pawan Singh and the appellant also made a confession before him regarding killing of his son. It is, however, pertinent to mention here that the said witness to the seizure of the gun has not supported the case of the prosecution. Even other witnesses to the seizure of the gun and alleged confession statement made by the appellant have not supported the case of prosecution. They have stated that the police has taken their signatures on blank papers. In this regard, it would be apt to notice the statement made by PWs Vishwa Nath, Mohd Latif and Hans Raj, who were also having the shops in the vicinity. 18. PWs Vishwa Nath, Mohd Latif and Hans Raj who are the witness to the alleged confession made by the appellant, in their cross-examination have stated that they had not seen the appellant on the day of occurrence coming towards the shop of Pawan Singh and the police had obtained their signatures on blank paper. They have denied that the appellant made any confession before them that he has killed his son. 19. They have denied that the appellant made any confession before them that he has killed his son. 19. It be seen that if the appellant had to make a confession with regard to killing of his son, he would have made the same before a person who is known to him and has faith in him so that he is saved from the torture of the police or who could have saved him from the clutches of law and thus, will not go to any unknown person for making the alleged confession. The occurrence is in the village. If after the occurrence, the appellant had to make any confession, firstly, he will go to the Sarpanch or Lumberdar of the village, which is not the case herein. Therefore, the story put-forth by the prosecution does not appeal to reason that the appellant after committing the murder of his son went to the shop of Pawan Singh, left his gun infront of his shop and made a confession before him and other shopkeepers referred to above. There is nothing on record to show that Pawan Singh was known to the appellant prior to the occurrence. In case, the appellant had to make a confession, he could have directly gone to the police station along with a person of his village but he will not go to an unknown person for making the alleged confession. So the appreciation of the prosecution evidence in this regard by the learned trial court is erroneous and not in consonance with the settled principles of law. 20. The other circumstance taken into consideration by the learned trial court is that there was recovery of used cartridge from the bed room of the appellant at his instance. It is stated that the appellant got recovered the empty cartridge from underneath the mattresses of the bed. The story in this regard put forth by the prosecution also seems to be a built up story. The appellant allegedly fired from a single barrel gun in the fields. If the appellant after firing the shot upon the deceased had re-loaded the gun, then, that empty cartridge will remain at the spot and the appellant will not carry the said empty cartridge to his home and keep the same underneath the mattresses. The appellant allegedly fired from a single barrel gun in the fields. If the appellant after firing the shot upon the deceased had re-loaded the gun, then, that empty cartridge will remain at the spot and the appellant will not carry the said empty cartridge to his home and keep the same underneath the mattresses. Rather, after committing the crime, the appellant would have tried to destroy this piece of evidence so that the same may not be used against him. Even, the eye witnesses cited by the prosecution i.e. PWs Vidya Devi, wife of the appellant, Sunita Devi, Bhabi of the deceased and Shiv Dev Singh, brother of the deceased, have not supported the case of the prosecution and have not stated that they had seen the appellant coming towards the house along with the gun or kept concealing any empty cartridge underneath the mattresses on the bed. Rather, the prosecution story is that after firing a shot upon the deceased, the appellant along with his gun went towards the shop of Pawan Singh and after disengaging the gun into three pieces left the same infront of his shop and fled away to an unknown place. Under these circumstances, it cannot be believed that the empty cartridge was recovered at the instance of appellant from underneath the mattresses of his bed when there is no evidence to the effect that the appellant after firing the shot upon his son had first gone to his house. 21. Moreover, PW Hussain Din, a retired ASI, who is the witness to the alleged recovery memo of empty cartridge has denied that any recovery was made in his presence. He has further denied that he made any signatures on the recovery memo. Therefore, the alleged disclosure statement regarding placing of the empty cartridge underneath the mattresses and the recovery of the same, as indicated above, seems to be a built up story by the prosecution. This piece of evidence has been created by the prosecution just to connect the appellant with the crime. 22. The other circumstance which has been relied upon by the learned trial court for convicting the appellant is that finger prints from the seized gun were taken by the mobile FSL team of district Udhampur in the presence of PWs HC Mohan Lal and PW Pawan Singh, Manzoor Ahmed, Bishamber Singh and IO Rajinder Sharma. 23. 22. The other circumstance which has been relied upon by the learned trial court for convicting the appellant is that finger prints from the seized gun were taken by the mobile FSL team of district Udhampur in the presence of PWs HC Mohan Lal and PW Pawan Singh, Manzoor Ahmed, Bishamber Singh and IO Rajinder Sharma. 23. Pawan Singh in whose presence, the gun is said to have been seized and the finger prints are alleged to have been obtained has not supported the case of the prosecution. The remaining witnesses are official witnesses. When the case of the prosecution is based on the statements of official witnesses then it put the court on its own guard to scrutinize their evidence with great care and caution. In case there is material contradiction in the statement of official witnesses to which effect there is observation of the learned trial court also, then, no reliance can be placed on such statement. In this regard, the observation regarding material contradiction made by the learned trial court is reproduced below: - "......It is true that there is some variance in the time disclosed by the witnesses which varies by few hours. Otherwise their evidence is confidence inspiring. Their evidence does not suggest that they have not obtained the finger prints from the gun before the same was seized by the police on spot. So it is not proper or justified to reject their evidence on the sole ground of variance in time of few hours." 24. Therefore, when there was material contradiction and variance in the statement of the official witnesses, as noticed above, then the learned trial court should not have placed reliance on such a statement. 25. One of the circumstance on the basis of which the appellant has been convicted by the trial court is that the appellant has fired a shot from the 12 bore gun which has been recovered. This gun taken into possession and the empty cartridge recovered on the alleged statement of the appellant tallied and it has been approved by the report of the Ballistic expert. 26. At this stage, it would be relevant to notice the statement made by the PW S.H. Bhukhari Scientific Officer, Ballistic FSL, Jammu, on cross-examination. He deposed under: - "On cross examination, states that the empty cartridges exhibits C1 was received by me in the laboratory in a wrapped cloth. 26. At this stage, it would be relevant to notice the statement made by the PW S.H. Bhukhari Scientific Officer, Ballistic FSL, Jammu, on cross-examination. He deposed under: - "On cross examination, states that the empty cartridges exhibits C1 was received by me in the laboratory in a wrapped cloth. There has not been mentioned any manufacturing date on the empty cartridge. For preserving the impression of the fired cartridge it should have been packed in cotton wool especially the head portion of the cartridge, but the fired cartridge received by me was not packed in cotton wool. I have not taken micro photographs of the test fired cartridge and used cartridge to compare the impression on them. The taking of the micro photo graphs is mandatory for coming to the specific conclusion that particular cartridge has been fired from a particular gun. In my report EXT-P27, I have mentioned that used cartridge CI could have fired from the SBBL gun exhibit FI because maximum marks/impressions not tallied with the test fired cartridge. On the T-shirt which was marked by me as TSI/H1, I found only one hole. The diameter of the hole on the sit was 1 inch. To the question put by the defence counsel- "What could have been distance in the present case from which the bullet was fired" The witness replied that he cannot say with certainty without examining the dead body but however depending upon the colour concentration test, range of ire could be from close proximity. I cannot say whether the injury suffered by the deceased could be self inflicted." 27. A perusal of the above deposition made by the Ballistic expert shows that he has not given any specific opinion that the empty cartridge has been fired from the gun so recovered. He has specifically deposed that he did not conduct micro photograph of the test fired and used cartridge to compare the impression on them which is mandatory for coming to the conclusion that particular cartridge has been fired from a particular gun. It is very strange that the learned Sessions Judge has observed that the word "not" in the evidence of Ballistic expert during his cross-examination is a typographical mistake and should not have been recorded there. It be seen that the evidence was not recorded by the officer who has passed the order impugned of conviction of the appellant. It is very strange that the learned Sessions Judge has observed that the word "not" in the evidence of Ballistic expert during his cross-examination is a typographical mistake and should not have been recorded there. It be seen that the evidence was not recorded by the officer who has passed the order impugned of conviction of the appellant. The officer concerned who recorded the evidence has read over the same to the witness and both officer and witness have signed it. The word "were" occurring before the word "not" has been corrected. Therefore, if there would have been a mistake in recording the word "not", the officer concerned would have struck down the said word also but the same has not been done which shows that the word "not" figuring in the cross-examination of the Ballistic expert existed there and was not a typographical error. 28. A perusal of the observations made by the learned trial court in this regard shows that the trial court has created an evidence for the prosecution which is not the function of the court. If there was any doubt with regard to existing or otherwise of the word "not" in the evidence given by the Ballistic expert in his cross examination, then, the learned trial court should have called the witness and made it clear whether he has stated so or not. If the word "not" was to be struck off, then, the defence had a right to cross-examine the witness on that point. But when the evidence has come on record and the witness and Presiding Officer has signed it, then, that part of evidence of the prosecution or defence cannot be read in any other way by observing that this is a clerical mistake. Therefore, as to why the learned trial court has observed that this is a typographical error is not understandable. 29. The other circumstance relied upon by the learned trial court is that the appellant has given a false explanation about the death of the deceased that he committed suicide, and therefore, an adverse inference is to be drawn which also completes the chain of circumstance. 29. The other circumstance relied upon by the learned trial court is that the appellant has given a false explanation about the death of the deceased that he committed suicide, and therefore, an adverse inference is to be drawn which also completes the chain of circumstance. In this regard, reliance has been placed by the learned trial court on the judgment passed by the Apex Court in the case reported as AIR 1996 SC 2766, AIR 1992 SC 1175, AIR 2000 SC 571, 2000 SCC (Cri) 263 and AIR 1967 Orissa 118. 30. The judgments so referred to above, are not relevant to the facts of the present case. Instant is a case which is based on the eye witness count, but the said witnesses, as noticed above, have not supported the case of the prosecution. The motive has not been proved. The recovery of the gun at the instance of the appellant has not been proved. The alleged confession made by the appellant in presence of PWs Pawan Singh, Vishwa Nath and Mohd Latif has also not been proved. It has further not been proved that the finger prints were taken in the presence of PW Pawan Singh, who is the independent witness. The circumstance taken into consideration by the learned trial court that the appellant has given a false explanation can also not be accepted. If the accused takes a defence which is false and is not proved, then on the basis of that, the accused cannot be convicted. It is settled proposition of law that the prosecution has to stand on its own legs and cannot take the benefit of weakness of the defence. Therefore, mere taking a plea regarding false explanation by the appellant cannot be taken against him. Further, it has also not been proved that empty cartridge was recovered at the instance of the appellant from underneath the mattresses of the bed of his room. Despite all these facts, the learned trial court has convicted the appellant and this has been done by mis-reading of the evidence. 31. For the reasons mentioned above, this appeal is accepted. Order impugned vide which the appellant has been convicted and sentenced to undergo the imprisonment as mentioned in para 1 of the judgment, is set aside. Appellant is acquitted of the charge. He is directed to be set free forthwith, if not required in any other case. 31. For the reasons mentioned above, this appeal is accepted. Order impugned vide which the appellant has been convicted and sentenced to undergo the imprisonment as mentioned in para 1 of the judgment, is set aside. Appellant is acquitted of the charge. He is directed to be set free forthwith, if not required in any other case. 32. The reference is accordingly declined.