Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 526 (JK)

State of J&K v. Pawan Kumar

2017-08-02

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : This Criminal Acquittal Appeal has been preferred against the judgment dated 31.08.2010 passed by the trial court, by which the respondent has been acquitted of offences under sections 302/404 RPC. 2. The prosecution story briefly stated is that on 01.12.2005, the Police received information that dead body of Neelam Devi is lying in a Nallaha across Kuthad in a suspicious circumstances. Thereupon, enquiry under section 174 of Cr. P.C. was commenced and during the course of the inquiry, the Police prepared site plan and took the dead body in its custody. During the inquiry, one Kishore Kumar, namely, son of the deceased made statement, which was recorded by the Inquiry Officer under section 175 Cr.P.C, in which he had stated that on 30.11.2005, his mother had gone to Devasthan at Jhedi to pay offerings and he had gone for grazing cattle in the forest and at about 5.00 p.m, when he was on his way back with his cattle and reached Kuthad Nallaha, he heard cries from the forest side and went on the bank of the Nallaha, then he saw that the respondent was giving blows with stick one after the other to his mother with a criminal intention to kill her. It was further stated that when he reached on spot, he found that his mother was almost half dead and thereafter she succumbed to injuries on spot. It was also stated by him that the respondent had killed his mother due to previous enmity and had threatened him also that in case he narrated the incident to anyone, the respondent will eliminate his whole family. On the basis of aforesaid statement, First Information Report for offences under section 302 RPC was registered in Police Station, Akhnoor and investigation was commenced. After completion of the investigation, charge sheet was presented before the trial court for commission of offence as aforesaid. 3. The prosecution in order to prove its case has examined as many as 17 witnesses, namely, PW 1-Om Prakash, PW 2-Gian Chand, PW 3-Bal Krishan, PW 4-Vaid Raj, PW 5-Kishore Kumar, PW 6-Des Raj, PW 7-Madan Lal, PW 8-Thakur Dass, PW 9-Des Raj, PW 10-Romesh Chander, PW 11-Bishan Dass, PW 12–Rekha Devi PW 13-Harnam Chand Bhagat PW 14-Dr. Romesh Chander Sharma, PW 15 Puran Chand, PW 16-Kamal Singh, Naib Tehsildar, PW 17-Rattan Singh. Romesh Chander Sharma, PW 15 Puran Chand, PW 16-Kamal Singh, Naib Tehsildar, PW 17-Rattan Singh. The trial court vide impugned judgment disbelieved the testimony of sole eye witness, namely, Kishore Kumar, who was examined as PW-5 and held that the prosecution has failed to prove the evidence against the respondent. Accordingly, the respondent was acquitted of the offences alleged against him. 4. Learned Sr. Additional Advocate General for the appellant submitted that the trial court has grossly erred in disbelieving the testimony of the eye witness, namely, son of the deceased. It is further submitted that the trial court has not properly appreciated the evidence on record, which has resulted in erroneous findings and consequently the impugned judgment. 5. We have considered the submissions made by the learned Sr. Additional Advocate General and have perused the record. PW 1-Om Prakash in his statement has stated that he did not know the deceased, Neelam Devi and, accordingly, he was declared hostile. PW 2-Gian Chand, who was the husband of the deceased is not the eye witness to the incident, however, in his cross-examination he denied that the deceased had illicit relation with the respondent. PW 3-Bal Krishan and PW 4-Vaid Raj were declared hostile by the prosecution and even on their cross-examination, nothing incriminating against the respondent was brought on record. Similarly, PW 6-Des Raj, PW 8-Thakur Das, PW 9-Des Raj, PW 11-Bishan Dass and PW 15-Puran Chand have been declared hostile by the prosecution and on their cross-examination, nothing incriminating against respondent was brought on record. 6. The prosecution has also relied on the oral dying declaration made by the deceased. In order to prove the aforesaid oral dying declaration, the prosecution has examined three witnesses, namely, PW 2-Gian Chand, PW 11-Bishan Dass and PW 12-Rehka Devi. It is pertinent to mention here that PW 11-Bishan Dass, who happens to be real brother of the deceased, did not support the prosecution story and even in his statement recorded under section 161 Cr.P.C, he has categorically stated that on hearing about the murder of the deceased, he reached her house and found dead body of the deceased. In other words, PW 11 is not witness to oral dying declaration. PW 2-Gian Chand and PW 12 Rekha Devi, who were husband and sister-in-law of the deceased respectively have given contradictory versions with regard to making of oral dying declaration. In other words, PW 11 is not witness to oral dying declaration. PW 2-Gian Chand and PW 12 Rekha Devi, who were husband and sister-in-law of the deceased respectively have given contradictory versions with regard to making of oral dying declaration. PW 2-Gian Chand has stated that the oral dying declaration was made by the deceased at the place of occurrence, whereas according to PW 12 Rekha Devi, the same was made by the deceased in her house. Besides that, PW 5-Kishore Kumar, who was eye witness to the alleged incident has stated that when he reached the place of occurrence, the deceased had already expired. 7. Now, we come to the testimony of only eye witness, namely, Kishore Kumar, who has been examined as PW 5. It is pertinent to mention here that the incident took place on 30.11.2005 and statement of the aforesaid witness under section 161 Cr.P.C. was recorded after 5 days, i.e., on 04.12.2005. No explanation has been put forth by the prosecution for delay in recording the statement of the aforesaid eye witness, which is fatal for the prosecution case. It is pertinent to mention that at the time of recording the statement of PW-5 under section 175 Cr. P.C, he was aged about 18 years. After witnessing the incident, he ran to his house, which situate at about two kilometers away from the place of occurrence. He did not disclose the aforesaid incident to anybody including his father in which his mother was involved. Therefore, the testimony of the aforesaid eye witness does not inspire confidence and has rightly been discarded by the trial court. After testimony of the aforesaid eye witness is discarded, entire case of the prosecution rests upon circumstantial evidence. It is pertinent to note that the prosecution has failed to prove the motive of commission of aforesaid offence. 8. Thus, in view of preceding analysis, we are of the considered opinion that the prosecution has failed to prove offence alleged against the respondent beyond the reasonable doubt. The findings have been recorded by the trial Court on the basis of meticulous appreciation of evidence available on record and by no stretch of imagination the same can be said to be perverse or based on no evidence. No case for interference by this Court with the judgment of acquittal is made out. The findings have been recorded by the trial Court on the basis of meticulous appreciation of evidence available on record and by no stretch of imagination the same can be said to be perverse or based on no evidence. No case for interference by this Court with the judgment of acquittal is made out. In the result, we do not find any merit in this appeal. The same fails and is hereby dismissed.