Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 257 (JK)

State Of J&K v. Mohd. Ramzan Dar

2013-04-26

ALI MOHAMMAD MAGREY, Mansoor Ahmad Mir

body2013
1. This criminal appeal aims at and seeks setting aside of the judgment dated 18th September, 2008, hereinafter for short impugned judgment, by virtue of which respondent has been acquitted of the charges levelled against him in case titled State v. Mohammad Ramzan Dar alias Ghada, bearing FIR No. 52/2000 of police station Rainawari, for the commission of offences punishable under Section 302, of the Ranbir Penal Code, for short RPC. 2. We have heard learned counsel for the appellant. The appeal merits to be dismissed because of the following. BRIEF FACTS 3. A Report was received by the Police Station Rainawari, hereinafter P/S, on 28th April, 2000, that dead body of one Mohammad Amin Rather, was recovered and cause of the death was strangulation. Dead body was sent for postmortem and after conducting postmortem doctor opined the cause of death as strangulation. Accordingly First Information Report, for short FIR, was registered and investigation was conducted. 4. The FIR, in the instant case, has been read, for the purposes of investigation, together with a missing report filed a day earlier by one Mst. Irshada, wife of Mohammad Amin Rather. 5. During investigation accused was arrested and case was presented before the court of Chief Judicial Magistrate, Srinagar, who committed the same to the court of Sessions Judge, Srinagar, being a case of Sessions trial. Learned Sessions Judge, in turn transferred it to the trial court viz. court of 2nd Additional Sessions Judge, Srinagar. Charge was framed against the accused, who pleaded not guilty and instead sought trial. 6. Prosecution, in support of its case, produced and examined seventeen out of nineteen witnesses listed in the witness calendar. The non-examination of the two witnesses has gone unexplained despite the fact that both of them have been shown to be the witnesses of occurrence. Thus adverse inference had to be, and rightly, drawn against the prosecution. 7. Statement of the accused was recorded in terms of Section 342 of the Code of Criminal Procedure, for short, Cr.P.C, on 7th October, 2006, and the accused was asked to enter upon the defence. 8. Accused examined Mst. Rehti and Mehraj-ud-din as defence witnesses. 9. The basis of the prosecution case, as per the police final report, and the evidence recorded, was that deceased was last seen with the accused. 8. Accused examined Mst. Rehti and Mehraj-ud-din as defence witnesses. 9. The basis of the prosecution case, as per the police final report, and the evidence recorded, was that deceased was last seen with the accused. The trial court has rightly held that it has remained uncorroborated that deceased had taken liquor or charas which had affected all of his organs. It is also rightly pointed out that the plea that deceased was last seen with the accused has not been proved by the prosecution. Thus the root of the prosecution story has gone unnourished making its fall inevitable. 10. As per the testimony of Investigating Officer, the deceased was on a bicycle and because of having consumed wine, and Charas, he could not control himself, therefore, the bicycle was taken back by PW 5. 11. PW Mohammad Shafi has deposed that deceased was in full senses; neither PW 5 nor deceased had consumed liquor or any other narcotic substance. He and deceased reached near the residence of deceased between 8.30 to 8.45 PM. 12. There is no evidence brought on record by the prosecution that deceased had visited the residence of accused in the intervening night of 27/28 April, 2000. The investigating officer has deposed that according to his information the deceased had intended to go to the residence of accused. While as, according to PW No. 5, the deceased intended to return the bicycle to the accused and there is no evidence on the file to opine that deceased had gone to the accused during the fateful night. 13. PW No. 1, Arshida has deposed that she had seen her husband, deceased, going to the residence of accused at the relevant point of time and did not return to his own residence. But she is not a witness to that effect as per the calendar of witnesses. PW No. 5 has deposed that missing report was lodged with the police and efforts were made to trace him but no clue led to his whereabouts. 14. It is not mentioned anywhere in the evidence as to how the deceased was last seen with the accused and the deceased and accused were on bicycle. The star witness viz. sister of the accused, Mst. Shameema, has not been examined and Mst. Rehti too has not been examined and she later has appeared as a defence witness. 15. 14. It is not mentioned anywhere in the evidence as to how the deceased was last seen with the accused and the deceased and accused were on bicycle. The star witness viz. sister of the accused, Mst. Shameema, has not been examined and Mst. Rehti too has not been examined and she later has appeared as a defence witness. 15. Neither the prosecution nor the Investigating Officer has disclosed or explained as to how the dead body was carried away from the scene; how and when was it recovered and the postmortem conducted. 16. PW Dr. Ibrahim, has not given details as to how he came to the conclusion that death was caused by strangulation. He has only said according to him death was caused by asphyxia (anoxic-hypoxia). 17. The prosecution has not been able to prove that deceased being under the influence of liquor could not resist the attack of the accused, because there is no corroboration from any witness to this effect. It was the duty of the prosecution to narrate the events to justify the consumption of liquor and consequently deceased being under its influence. 18. The entire prosecution case revolves around the statement of PW 5, who, as discussed hereinabove, has deposed that he did not see the accused and deceased together which goes against the basis of the prosecution story. Prosecution has failed to get the nails of the accused examined; it has made some recovery of nylon rope near Astana Sharief. But in EXPW9/2, it is stated to have been recovered from water and was two metre long. The prosecution has not given the details as to from which place the nylon rope has been recovered; if it was recovered from water, what were the measures those were taken to keep it dry before its packing. It is worthwhile to mention herein that said rope has not been sent to Forensic Science Laboratory, for expert opinion. It is not mentioned in EXPW9/2 as to whether the rope was floating or had been hidden anywhere. It is astonishing to note that PW2 Nazir Ahmad has deposed that said rope was recovered from grass. 19. The investigating agency has also tried to build the case on the basis of a disclosure statement made by the accused. The question is as to whether such disclosure can be made basis for conviction? 20. It is astonishing to note that PW2 Nazir Ahmad has deposed that said rope was recovered from grass. 19. The investigating agency has also tried to build the case on the basis of a disclosure statement made by the accused. The question is as to whether such disclosure can be made basis for conviction? 20. Section 27 of the Evidence Act reads as under: "27. How much of information received from accused may be proved Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 21. Mandate of the provision is that if recovery is made in pursuance to the disclosure it has to be proved by the prosecution in case it is to be read against the accused. Thus, it was necessary to lead evidence that rope was concealed and it was recovered near the Shrine. All the witnesses examined are the witnesses to EXPW9/2, but none of them has deposed that rope was recovered from the shrine at the instance of accused. PW 6 has said nothing about the recovery and others have not specified the place from where it has been recovered. 22. It was mandatory on the part of the prosecution to use the actual words in the disclosure statement while recording the disclosure which has not been done. Some of the witnesses have said that recovery has been made near the Shrine, some have stated in the water and one witness has stated that recovery has been made from the grass. The star witness Abdul Ahad has said nothing about the preparation of seizure memo and of the recovery. The recovery, in view of varied versions, makes its factum doubtful. PW 9 has deposed in cross examination that rope was recovered from other side of the shrine i.e. from willow trees. 23. The prosecution also has failed to prove the circumstances with which the accused may be connected; PWs 1, 2 and 4 have deposed that along with accused, his brother Mehraj, sister Mst. PW 9 has deposed in cross examination that rope was recovered from other side of the shrine i.e. from willow trees. 23. The prosecution also has failed to prove the circumstances with which the accused may be connected; PWs 1, 2 and 4 have deposed that along with accused, his brother Mehraj, sister Mst. Shameema are living and it was for the prosecution to link and prove that the accused had committed the murder at a time when they were not there and if prosecution believes that murder has taken place in their presence, then they should have been cited either as abettors or accused, which is not forthcoming. 24. The trial court, after deriving satisfaction that investigation has been faulty, rightly came to the conclusion that prosecution has failed to prove that accused was last seen with the deceased. 25. It was for the prosecution to establish the motive behind the crime. It appears that prosecution has tried to build a case that accused had relations with the wife of the deceased and has also tried to make a foundation that deceased had relations with the sister of the accused. But there is no proof available on record to lend support to such version of the prosecution. Failure of the prosecution to prove motive leans in favour of innocence of the accused. The investigating agency has committed lapses while conducting investigation and trial court has given the narration of the same. It is apt to reproduce the relevant portion of the impugned judgment herein, thus: "It needs to remembered that report no: 13 has been lodged with P/S by P.W1, who was accompanied by P.W4 at 16.14 on 27.04.2000. Report no: 16 lodged on the same day at about 19.25 reveals a wireless message having been received by Police Station that a dead body is laying near Janta-Kadal. Shri Abdul Khaliq Investigator, has been deputed to site alongwith Constable No.s 1702, 2262, Head Constable Nos. 1744, 1968 and Constable Nos. 1767, 1852, 1867 and 758 for recovery of the dead body. The report has been entered by the concerned P/S in the Daily Diary under no: 20 at 22.30 in which it is recited that Shri Abdul Khaliq Investigator returned after making seizure of the dead body. 1744, 1968 and Constable Nos. 1767, 1852, 1867 and 758 for recovery of the dead body. The report has been entered by the concerned P/S in the Daily Diary under no: 20 at 22.30 in which it is recited that Shri Abdul Khaliq Investigator returned after making seizure of the dead body. The dead body was sent for post mortem examination on 28th of April 2000, at 8.10 as report no: 14 dated 28.04.2000 reveals the post-mortem examination of the dead body having been made by the Medical Officer. Site plan prepared by the Investigator in which mention is made of the recovery of dead body and a cigarette bit on spot. There is no mention of the seizure of cigarette bit in the seizure memo pertaining to dead body (EXPW-4/1) though it makes mention of some wearing apparels of the deceased. On examination for the final report and the documents annexed with it by the Investigator, we see that the investigator has not been alive to his duty to have the scene management documentation properly. The condition/ position of the corpse deliciti has not been made. The blood stains on and around the body if any found without disturbing the body has not been quoted. The blood froth (blood mixed saliva and air) on around the dead body or the scene if present has not been jotted down. Rigor estimation, lividity of the corpse deliciti and condition of the surrounding has not been made a mention by the investigator, whether it was practicable to prepare the site plan or the seizure memo in the late evening after generates a doubt in the prosecution case. Microtraces or bio traces as evidence have great importance because there is always exchange in accordance with the principles of exchange. This investigator has not paid any attention towards this fact and if adequate attention would have been paid towards it, it could bridge the link between the criminal and the crime in the absence of physical evidence. Even usual incriminating evidence which the Investigator could pick up at the scene of crime like track marks, foot prints, finger prints etc. have remained away from the mind of the investigator. He has not cited any person referred in report no: 16 as a witness while preparing EXPW-4/1 or any other document on spot. Even usual incriminating evidence which the Investigator could pick up at the scene of crime like track marks, foot prints, finger prints etc. have remained away from the mind of the investigator. He has not cited any person referred in report no: 16 as a witness while preparing EXPW-4/1 or any other document on spot. The site plan which is said to have been prepared on spot does not bear the date of its preparation. It needs; to be kept in mind that the officer was deputed to site at 7.25 PM by the Station House Officer returned back at about 10.30 at night. The quality of the visibility at the moment he visited the scene i.e. to recover the dead body was of significance but has not been accounted for by him. In the site plan which the investigator states he prepared on spot, there is no mention of the distance from the water and the inter-se distances between the place where the dead body was found and the cigarette bit alleged to have been recovered. Scale if any used to make the site plan intelligible has not been set-forth". 26. We have scanned the entire evidence and we are of the considered view that there is no evidence at all in the eyes of law that can help the prosecution case and can be made basis for conviction. Prosecution has not been able to establish that accused was last seen with the accused on the fateful night. Prosecution has failed to prove the disclosure statement and recovery in pursuance to such statement. Prosecution has also failed to prove any circumstance which can be made basis for holding the accused liable. The two witnesses have been withheld and one has been examined by the defence, leading to the destruction of otherwise feeble prosecution story. 27. The investigating officer has conducted the investigation in a hazy manner and it appears that investigating officer was not aware of his responsibilities and of the outcome of his investigation. 28. In the result, we feel that the impugned judgment is reasoned and needs no interference. Upholding the trial court verdict we dismiss the appeal. 29. Send down the record.