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2012 DIGILAW 396 (PNJ)

State of Punjab v. Dharminder Kumar

2012-03-02

M.JEYAPAUL, S.S.SARON

body2012
JUDGMENT Mr. M. Jeyapaul, J.: - Crl.Misc.No.69160 of 2011 This application has been filed seeking condonation of delay of 105 days in filing the application seeking permission to prefer an appeal. The main application seeking permission to prefer an appeal has been dealt with on merits and disposed of by us today. Therefore the application seeking condonation of delay has become academic and therefore it stands dismissed as infructuous. Criminal Misc.No.1029-MA of 2011 2. The application has been filed invoking the provision under Section 378(3) of the Code of Criminal Procedure by the State of Punjab seeking permission to prefer an appeal as against the order of acquittal passed by the trial Court in a case of murder. 3. The brief facts of the case of the prosecution is that PW3 Satpal, brother of Surinder Kumar @ Bittu received information from his brother about 15 days prior to the occurrence that accused Dharminder Kumar, who was working with him in United Breweries Limited, C-60, Phase IV, Focal Point, Ludhiana, having refused to pay the money owed by him to his brother gave out threats to kill his brother. PW7 Ashok Kumar and his brother PW8 Ashwani Kumar were running a canteen in the premises of United Breweries, Ludhiana. They saw the accused Dharminder Kumar quarreling with Surinder Kumar. On the intervening night of 22/23.12.2007, PW3 Satpal lodged a complaint to PW10 Inspector Sandeep Kumar. On the basis of endorsement made by PW 10, FIR (Ex.PH) was registered by Sub Inspector Ramji. PW5 ASI Darshan Singh took photographs of the scene of occurrence at the instance of PW10 Inspector Sandeep Kumar. PW10 Inspector Sandeep Kumar prepared inquest report of the dead body of Surinder Kumar. Post mortem examination was done by PW2 Dr.S.K. Gogna, Medical Officer attached to Civil Hospital, Ludhiana. He having found the injuries on the dead body of Surinder Kumar, gave his opinion that the death had occurred due to actus cardio respiratory arrest following hemorrhage and shock as a sequel to multiple injuries which were sufficient to cause death in the normal course of nature. PW10 arrested accused and recovered ‘Kulhari’ (Ex.P13) on the basis of disclosure statement made by him. After receipt of FSL report (Ex.PF), he laid challan as against the accused. 4. PW10 arrested accused and recovered ‘Kulhari’ (Ex.P13) on the basis of disclosure statement made by him. After receipt of FSL report (Ex.PF), he laid challan as against the accused. 4. The trial Court having adverted to the entire materials on record found that the prosecution failed to establish the charge of murder as against accused Dharminder Kumar. 5. The learned counsel appearing for the State submits that PW3, PW7 and PW8 have spoken to the motive harboured by the accused Dharminder Kumar as against the deceased Surinder Kumar. PW7 and PW8 have also deposed that they saw the accused with the deceased before the murder was committed. It is also his submission that the recovery of ‘Kulhari’ and the FSL report unerringly indicate the commission of the offence of murder by the accused. Therefore, it is a submission that the State has considered the necessity to prefer an appeal. 6. We have evaluated the entire materials on record. We find that the trial Court has rightly arrived at a decision and acquitted the accused as there was dearth of materials to clinchingly establish the charge of murder leveled against the accused. 7. The prosecution has bound to establish the case of murder through circumstantial evidence in the absence of ocular testimony. PW3, PW7 and PW8 have been examined to project the case of the prosecution that there was motive for the murder. 8. Establishment of mere motive harboured by the accused as against the victim cannot be the sole ground for convicting the accused, when the other materials did not support the case of the prosecution. Of course PW3 would speak to the fact that the deceased informed him about 15 days prior to the occurrence that the accused having failed to repay the debt wielded threat to him. 9. In our considered view such a version of PW3 would not in any way roping in the accused for the commission of murder, more especially when the prosecution failed to establish the other chain of circumstances projected by it. 10. PW7 and PW8 would very vaguely depose that on the preceding night there was a quarrel between the accused and the deceased. At this juncture it has to be noted that PW7 Ashok Kumar has deposed that he had not seen anybody assaulting or attacking the deceased Surinder Kumar. 10. PW7 and PW8 would very vaguely depose that on the preceding night there was a quarrel between the accused and the deceased. At this juncture it has to be noted that PW7 Ashok Kumar has deposed that he had not seen anybody assaulting or attacking the deceased Surinder Kumar. PW8 Ashwani Kumar has also stated that he had not seen the accused and deceased quarreling and fighting with each other. 11. The dead body was not found in the room where the accused and the deceased stayed in the factory premises. The dead body, of course, was detected in the factory premises and not in the room where accused and the deceased stayed. With the above feeble evidence, it cannot be conclusively decided that the murder was committed by the accused on account of the money transaction he had with the deceased. 12. The prosecution made an attempt to project the recovery of blood stained ‘Kulhari’ as one of the material circumstances to establish the case of the prosecution. PW7 and PW8 have completely demolished the case of the prosecution that the weapon ‘Kulhari’ was recovered by PW10 on the basis of disclosure statement suffered by the accused. They have categorically stated that the weapon ‘Kulhari’ was found near the dead body and the same was recovered by PW10 only from the scene of occurrence. Their testimony is completely fortified by the evidence of PW5 ASI Darshan Singh, who took the photographs of the scene of occurrence. He has categorically deposed that on 23.12.2007 he took photographs of the seen of occurrence. The ‘Kulhari’ was found at the scene of occurrence itself. PW4 Head Constable Saran, who prepared the site plan (Ex.P4/A) has also stated that the ‘Kulhari’ was found near the dead body. 13. The above evidence projected by the prosecution would go to establish that the ‘Kulhari’ was not infact recovered at the instance of the accused based on the disclosure statement given by him. The public witness to the arrest of the accused and the recovery allegedly effected at his instance were not examined by the prosecution. Therefore, disclosure statement allegedly suffered by the accused and the recovery of the ‘Kulhari’ at his instance are found to be totally unbelievable. 14. The public witness to the arrest of the accused and the recovery allegedly effected at his instance were not examined by the prosecution. Therefore, disclosure statement allegedly suffered by the accused and the recovery of the ‘Kulhari’ at his instance are found to be totally unbelievable. 14. Coming to the FSL report (Ex.PF), the trial Court has made an observation that the blood stains found on the ‘Kulhari’ did not match with the blood group surfaced during the course of examination by the FSL. 15. In our considered view, the trial Court has rightly rejected the case of the prosecution. There is no legal evidence to establish the case of murder. We do not find any reason to grant leave to appeal as against the judgment of acquittal passed by the trial Court. Therefore, the application fails and it stands dismissed. ------------------