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2013 DIGILAW 230 (JK)

State of J&K v. Akbar Ali

2013-04-22

BANSI LAL BHAT, MOHAMMAD YAQOOB MIR

body2013
Yaqoob, J.:— 1. Judgment elated December 24, 2002 passed by the Learned Sessions Judge, Jammu is assailed by medium of this Criminal Acquittal Appeal. The case set up by the prosecution is that the deceased had forcibly made the accused (respondent) to drink liquor in the Shop (Khokha) of Narinder Singh situated at Bantalab. The respondent (accused) felt unpleasant and warned the deceased that he will see to it. Nurturing grudge, the accused got an opportunity to call deceased Sat Pal from his house on 28.2.1997 at 9.30.PM, then took him to the plot of Sukhdev Singh S/o Basant Singh Caste Rajput and murdered him by inflicting blows with weapon of offence, i.e., 'Chhura' on head, neck and No. 47 of 1997 Police Station, Domana, on completion of investigation culminated in filing of Charge Sheet (Challan) against the respondent (accused). 3. Respondent has faced trial for commission of offence punishable under Sections 302 RFC and 4/27 Arms Act. As many as 13 prosecution witnesses have been produced and examined during trial. After closure of the prosecution evidence, incriminating circumstances, as appeared in the evidence, have been put to the accused. The accused denied complicity in the crime. 4. Learned Trial Court after appreciating the evidence has noticed the contradictions, infirmities and for detailed reasons has acquitted the accused. 5. We have heard learned counsel for the parties and meticulously sifted the evidence as led by the prosecution. 6. Learned Additional Advocate General was pointedly asked to show as to where the learned Trial Court has erred in appreciating the evidence or in law which he could not; however, highlighted that the deceased was last seen with the accused. 7. The motive of crime may be significant. In absence thereof, if the evidence is such which may tend to show that the crime is committed by the accused, the accused can be convicted. In the instant case, the motive assumes importance, so as to see that the chain of links are 8. (a) The prosecution case has proceeded on the premise that the accused, a Muslim by faith, was forcibly made to consume liquor, based on which, he had warned the deceased that he will see to it. In the instant case, the motive assumes importance, so as to see that the chain of links are 8. (a) The prosecution case has proceeded on the premise that the accused, a Muslim by faith, was forcibly made to consume liquor, based on which, he had warned the deceased that he will see to it. Since as per prosecution case, the accused was made to drink liquor forcibly in the Shop (Khokha) owned by PW-Narinder Singh alias Pintu, so he (Narinder Singh-(PW) is the only witness to such circumstance. (b) PW-Narinder Singh has not supported the same so was declared hostile. In the cross-examination he has completely denied the statement recorded under Section 161 Cr. P. C. He has also denied any acquaintance with the accused or the deceased. PW-Vijay Lakshmi (wife of the deceased), PW-Bimal Sharma, PW-Vinod Sharma, (Sons of the deceased) and Ved Parkash (Real brother of the deceased), in their depositions have nowhere stated that the deceased and accused used to drink liquor together or there was any association of deceased with the accused. Instead said PWs, Ved Parkash, Vijay Lakshmi and Vinod Kumar have categorically stated that before the date of occurrence, there was no enmity on any count between the accused and the deceased. The next link to connect the accused with the commission of offence is the extra judicial confession to produced during the trial Therefore, this link is also snapped for want of proof. 10. Another link to connect the accused with the commission of offence is the disclosure statement to which PW-Pritam Lal, Kulbir Kumar and PW-Jagdev Singh (I.O) are the witnesses. PW-Pritam Lal has stated that the police brought the accused to the house of the deceased on 3.3.1997 and the police called him (witness) for recovery of weapon of offence. The accused went with the police whereas he (witness) reached after 10 minutes and saw 'Chhura' in the hands of the police. No recovery memo was made. The police obtained his signatures afterwards. This witness has not proved the disclosure memo EXPW/KK. Another witness, Kulbir Kumar (Nephew of the deceased) has proved the disclosure Memo. He, being the close relation of the deceased, his statement is required to be scrutinized with circumspection and requires corroboration. Firstly, his stand is not supported by PW-Pritarn lal and secondly, his own statement has infirmities. This witness has not proved the disclosure memo EXPW/KK. Another witness, Kulbir Kumar (Nephew of the deceased) has proved the disclosure Memo. He, being the close relation of the deceased, his statement is required to be scrutinized with circumspection and requires corroboration. Firstly, his stand is not supported by PW-Pritarn lal and secondly, his own statement has infirmities. He has stated that he went to Police Station on 3rd March 1997 on his own which is in contradiction to the version of PW-Pritam Lal who stated that police has brought the accused in the house of deceased Sat Pal on 3.3.1997. Pritam Lal and Kuldip went to police from there. His position is fully exposed by the Investigating Officer, Jagdev Singh, who has stated that both Kulbir Kumar and Pritam lal came in police station at 8/8.15 AM and according to him, disclosure memo was prepared on spot which is not supported by PW-Pritam Lal. Pritam Lal was the independent witness. Apart from that, the statement of Investigating Officer that the accused and Pritam Lal went to the house of the deceased which would mean the police knew the place of recovery. In view of the statement of independent witness Pritam Lal, it shall be difficult to accept the version of Kulbir Kumar (nephew of the deceased) and thus to believe the Investigating Officer who is always expected to be interested in the success of the case. 11. Another link is recovery of weapon of offence. (a) According to PW-Pritam Lal, an independent witness he reached 10 minutes after the arrival of the police in the house of the deceased and the police was holding 'Chhura' in hand but no recovery memo was prepared. This way, he has not proved the seizure memo EXPW/KK. Even PW-Kulbir Kumar (nephew of the deceased), in cross-examination, has stated that he went on his own along with Pritam Lal to the Police Station at 10/10.30 A.M and the police obtained his signatures and of Pritam Lal on 2/3 documents in the Police Station and then traveled in a vehicle (Jeep) from Police Station to the house of the deceased. When according to Pritam Lal, police had reached to the house of deceased Sat Pal at Bantalab and called him for effecting recovery of 'Chhura' whereas Kulbir Kumar has stated that he and Pritam Lal had gone to Police on their own in the morning of March, 1997. (b) It appears from the statement of PW-Pritam Lal that the recovery was effected before they reached to the place of recovery. Furthermore, PW-Kulbir Kumar and Pritam Lal have not said a word about the recovery of weapon of offence 'Chhura' to be stained with blood. Pritam Lal has also stated that weapon of offence shown to him in Court is not a weapon recovered by the police as the weapon recovered was much longer. (c) The learned Trial Court has rightly observed that it shall be unsafe to rely upon the statement of Kulbir Kumar (Nephew of the deceased) in absence of corroboration. 12. Another link to connect the accused with the commission of offence is the FSL report. The said report and the evidence, does not indicate as to what was the group of the blood, stained on the weapon of offence. PW-Mool Raj, Scientific Assistant of the Forensic Science Laboratory has not clarified the same, so there is no conclusive proof to say that the blood on weapon of offence was of the deceased. When the prosecution fails to establish that the blood found on the weapon matched with the blood group of the deceased then such circumstance cannot be taken as a credible link for connecting the accused with the commission of the offence. 13. Another important link which is required to be taken serious note of is that if the accused had attacked the deceased, at least, in the process the accused too would have received some injuries. The deceased who was in good health could not be expected to be a mute spectator when he was attacked by the accused, he too might have retaliated. There is no such evidence to show that the accused in any manner was injured or bruised, or that the deceasd had no chance to counter attack the accused. 14. Another important link so as to connect the accused with the commission of offence is last seen evidence. PW-Mst. There is no such evidence to show that the accused in any manner was injured or bruised, or that the deceasd had no chance to counter attack the accused. 14. Another important link so as to connect the accused with the commission of offence is last seen evidence. PW-Mst. Vijay Lakshmi (widow of the deceased) has stated the accused had come to her home in the night of 28.2.1997 and called the deceased by saying 'Chachu Ayo'. Then she has stated that her children PWs- Bimal and Vinod came back home at 10 PM. She told them that her husband is taken by the accused. Both PWs-Bimal and Vinod, sons of the deceased went for search and came back at 12 or 12.30 in the night and then they waited till morning when in the morning PW-Vinod went again in search and came back and told her that the dead body of her husband is lying in the Plinth of Sukhclev Singh Lamberdar. The widow has further stated that she did not disclose about missing of her husband to any person in the locality including Ved Parkash. Her statement that she knew the accused, then to say that she has seen the accused does not appear to be free from doubt. It has nowhere come in the evidence that the accused used to call the deceased as 'Chachu' or he used to come to their home; then to say that she recognized the voice of the accused from a distance of 30 feet where the Iron Gate is fixed and wherefrom the accused called the deceased. 15. The PWs, more particularly, the family members of the deceased stated that they knew the accused, who resides at a distance of 1 and ½ Kilometer from their house. If it was so, and when Vijay Lakshmi, widow had told her children that the accused went with the deceased, why the children did not go to the house of the accused, instead went in search of the deceased here and there and returned back at 12.30 PM; waited for the whole night. Theory is unbelievable. 16. Another important circumstance which gives rise to doubt about the leaving of the deceased with the accused is that the daughter of the deceased PW-Anju, who, according to Vijay Lakshmi, was cleaning the floor in the Kitchen when the accused called her husband Sat Pal. Theory is unbelievable. 16. Another important circumstance which gives rise to doubt about the leaving of the deceased with the accused is that the daughter of the deceased PW-Anju, who, according to Vijay Lakshmi, was cleaning the floor in the Kitchen when the accused called her husband Sat Pal. She (Anju) was the important witness to support the version of Vijay Lakshmi about calling of the deceased by the accused. She has not been cited as a witness. Why such an important witness has been withheld? has not been explained. 17. PW-Ved Parkash, real brother of the deceased has stated that Vijay Lakshmi informed him at about 9/9.15 PM that accused took the deceased along with. Neither they total any one that the deceased was taken by the accused nor they informed any one, they did not go to the house of the accused even in the morning. PW-Vijay Lakshmi has stated that she did not inform even Ved Parkash that the deceased was taken by the accused. 18. Is it believable that the family members, such as wife, daughter, two sons and then brother of the deceased will wait till morning and will not inform the police neighbours or inhabitants of the locality about the missing of the deceased Sat Pal. 19. Important factor is that the police has prepared occurrence memo EXPW/GS2 which is signed by PW-Bimal and Ved Parkash. In the said memo, it is recorded that some person or persons with criminal intent have killed the deceased with some blunt weapon. In case they would have suspected the accused or in case the deceased would have been taken by the accused then what was the requirement of recording that some person or persons have taken the deceased. 20. Another most important circumstance, in the given set of circumstances, is that the occurrence took place on 29.2.1997, copy of FIR has been sent to the Court of Chief Judicial Magistrate on 3rd of March 1997. Why it was not sent forthwith as is the requirement of Section 157 Cr. P. C. The words employed in the Section that 'to send the copy forthwith' has a purpose and object to avoid improvements or inclusion after deliberation. Why it was not sent forthwith as is the requirement of Section 157 Cr. P. C. The words employed in the Section that 'to send the copy forthwith' has a purpose and object to avoid improvements or inclusion after deliberation. The date in the said FIR is overwritten, i.e., in the date recorded as 1.03.97 figures 1 and 3 are visible to naked eye to have been overwritten whereas receipt of FIR by the office of Chief Judicial Magistrate 011 3.3.97 is clear. Delay in forwarding copy of FIR and then the over-writing on the date 1.3.97 is not free from doubt. 21. It is no more res-integra that when case hinges on circumstantial evidence, circumstance must form such chain which will give rise to only one inference that the act has been committed by the accused and none else and in all probabilities, there is 110 scope or any other hypothesis than the guilt of the accused. All the links as were projected to connect the accused with the commission of offence, as discussed hereinabove are not proved. 22. Investigating Officer appear to have concluded the investigation only with the object of showing that the murder case is solved, oblivious of the fact that a human life is lost and the criminal has remained to be reached as such the criminal has gone unpunished. Criminal justice system as is in place, is celebrated but some times is dented by the shoddy investigation. The Investigating Officer has hoodwinked the whole process as a result thereof, gruesome murder has remained a mystery. 23. The cumulative effect of the above said discussion leads us to only one conclusion, i.e., guilt against the accused is not proved by any standard. Judgment impugned recording acquittal of the respondent (accused) is perfectly justified. No error, illegality has been brought to our notice nor we noticed on re-appreciation of the evidence. 24. Appeal being devoid of merit, as such, dismissed. 25. Copy of the judgment along with Trial Court record be sent back to the Trial Court. Appeal file after due compilation be consigned to records.