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2017 DIGILAW 600 (JK)

State of J&K v. Mani Ram

2017-08-10

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
1. Being aggrieved of the judgment of learned Sessions Judge, Kathua in File No.25/Session titled ‘State Vs. Mani Ram and ors.’ dated 30.12.2013 whereby acquitting all the five respondents (hereinafter to be referred to as ‘accused’), State has preferred Cr. Acq. Appeal No.167/2014. 2. We have sought the assistance of Mr. Moza, learned Addl. AG, on the merits of the main case and read the impugned judgment minutely. 3. Prosecution case, in brief, is that on 28.02.2004, a police party headed by Kamal Dev Khajuria was on official duty in connection with investigation of case FIR No.64/2003 registered under Section 457/380 RPC and during investigation, they arranged a raid at 2130 hours to nab the son of accused No.2 whose involvement in said case was suspected. The accused started abusing the police party and while being armed with lathies and Darat, they attacked the police party. Accused No.1 hit Constable Bhagwan Singh on his head with a Darat as a result of which he got injured seriously. The other accused assaulted him with lathies which damaged his rifle No.16420456. This incident led to registration of case and during investigation samples of blood stained soil, unstained soil and the clothes of the victim were seized. On disclosure of accused No.1 a lathi was recovered. Accused No.2 produced a darat before police while as other accused produced lathies. Seizures were affected. After conclusion of evidence complicity of accused in commission of offence was established and charge sheet was filed in the Court. Accused were charged sheeted on 08.12.2004 for offences and pursuant to their pleading not guilty, prosecution has examined nine witnesses namely PWs Dr. B. L. Gorka, Kamal Dev Khajuria, Sudhir Singh, Constable Joginder Pal, Rajinder Kumar, Prithipal Singh, Ajit Singh, Kuldeep Kumar, & Shamsher Singh to support the charges against the accused. Statements of accused persons were also recorded under Section 342 Cr.P.C. and they have produced DW-Kaka Ram, in defence. The brief resume of prosecution witnesses is as under:- 1. PW Kamal Khajuria has stated that on 28.02.2004, he along with Bhagwan Singh and other police officials was on investigation of case FIR No.64/2003 under Sections 457, 380 RPC.They raided the house of accused No.2 whose son namely Sarban Kumar was suspected to be involved in said FIR. Accused started hurling abuses on police party and attacked with a darat. PW Kamal Khajuria has stated that on 28.02.2004, he along with Bhagwan Singh and other police officials was on investigation of case FIR No.64/2003 under Sections 457, 380 RPC.They raided the house of accused No.2 whose son namely Sarban Kumar was suspected to be involved in said FIR. Accused started hurling abuses on police party and attacked with a darat. Accused No.1 hit Constable Bhagwan Singh on his head while other accused assaulted the police party with lathies. The service rifle of Constable Bhagwan Singh also damaged. Seizure memo of shirt EXTPW-KD was prepared. Similarly, lathi was seized. In cross examination, stated that police party went to the house of accused in the search of juvenile suspect at 9.30 p.m. 2. PW Sudhir Singh stated that a police party headed by ASI K. D. Khajuria was on duty in connection with investigation of a case. They went to the house of accused. Some police official went inside the house of the accused and accused started abusing. He did not go inside but was watching everything from outside. Accused Mani Ram was having darat and rest of the accused persons were carrying lathies. Accused No.1 hit Constable Bhagwan Singh with darat and injured him. They also tore the uniform of K. D. Khajuria ASI. In cross examination, stated that the occurrence took place inside the house of accused and he was told about assault on police official by K. D. Khajuria. 3. PW Dr. B. L. Gorkha has stated that he examined K. D. Khajuria ASI who was having three injuries simple in nature caused by blunt objects. Similarly, Bhagwan Singh had to injuries which were simple in nature. He has proved medical certificate EXPW-11/BL and EXPW-11/BL1. 4. PW Joginder Pal has stated that on 28.02.2004, torn uniform of K. D. Khajuria was seized vide memo EXPW-KD. 5. PW Rajinder Kumar has stated that on 28.02.2004, he along with police party had gone for investigation of a theft case in the house of accused at 9.30 P.M. Accused started abusing them. Accused No.1 was having darat and other accused were having lathies. Accused No.1 hit constable Bhagwan Singh on his head with darat and other accused with lathies. He was got injured and uniform of K. D. Khajuria ASI was also torn. He is also witness to seizure memo EXPW-RK1 and supardnama EXPW-RK2. 6. Accused No.1 was having darat and other accused were having lathies. Accused No.1 hit constable Bhagwan Singh on his head with darat and other accused with lathies. He was got injured and uniform of K. D. Khajuria ASI was also torn. He is also witness to seizure memo EXPW-RK1 and supardnama EXPW-RK2. 6. PW Prithpal Singh has stated that a police party was out in connection with investigation of case FIR No.64/2003 at about 9.30 p.m. They reached the house of accused to nap the suspect Sarban Kumar. When accused were asked about the suspect, accused No.1 attacked constable Bhagwan Singh and other accused with lathies. The service rifle of Bhagwan Singh was damaged. In cross examination, stated that police party reached the house of accused at 9.30 P.M. and the accused were sleeping in their house. Suspect Sarban Kumar was juvenile. 7. PW Ajit Kumar has been turned hostile. 8. PW Kuldeep Kumar is IO who has arrested accused No.1. He has stated that accused No.1 produced darat before the police which was seized. He prepared the challan and produced before the Court. 9. PW Shamsher Singh has stated that police party headed by ASI Kamal Dev Khajuria was out in connection with investigation of a case. Accused assaulted the police and Bhagwan Singh was injured. Blood stained soil and plain soil and simple soil were seized and dispatched to FSL. In cross examination, stated that he does not know about actual occurrence. This is the evidence of prosecution; whereas the accused have also produced one defense witness, Kaka Ram, who has stated that on 28.02.2e004 at mid night there was an alarm in the house of accused. He and other people went to their house and found 10-12 police man assaulting accused with lathies. Accused were crying. The police party put out the lights. The police even threatened the people gathered there. 4. The learned trial Court, after appreciating the entire case, has observed that Police cannot be allowed to use its power of late night raid without a genuine purpose and urgency. It would be nothing more than a misadventure. The privacy of a family of whatever status cannot be invaded at odd hours of night to achieve a trivial purpose which could be achieved by adopting legal recourse. It would be nothing more than a misadventure. The privacy of a family of whatever status cannot be invaded at odd hours of night to achieve a trivial purpose which could be achieved by adopting legal recourse. Police party even if believed to be true in their version, were in search of juvenile suspect, he could be arrested in due course of law but not the way the police party attempted to do so. It is also observed that we may not doubt the police power to conduct the search but then there are certain important requirements attached to it, to prevent misuse of power by police. If the police party meant to conduct the raid, it had to obtain a search warrant and if it was not possible to do so on account of the exigencies of the matter, it was supposed to at least call some respectable persons of the locality and conduct the search in their presence, but the police has not adopted either of such courses and it gate crashed premises of the accused and raided their house without any warning/notice etc. How could law allow this? The accused were within their rights to resist proportionately preventing their privacy being invaded at odd hours of the night. So the very geneses of the prosecution story appear to be doubtful in the first instance and even the presence of police party on spot at that time of the night was impermissible. No independent witness has come forward to support the prosecution story. The medical evidence is not compatible with the version of the prosecution witnesses. The main injured has not been examined. This leaves the Court with no option but to entertain a doubt about the complicity of accused in commission of the crime attributed to them. While giving the benefit of doubt, the learned trial Court acquitted the accused persons. The learned trial Court has noticed another infirmity in the prosecution case, as the doctor has gone even to the extent of saying that the injuries could be caused by a fall or self inflicted even. 5. We have carefully scanned the whole evidence cautiously and also gone through the judgment and law on the subject. 6. The learned trial Court has noticed another infirmity in the prosecution case, as the doctor has gone even to the extent of saying that the injuries could be caused by a fall or self inflicted even. 5. We have carefully scanned the whole evidence cautiously and also gone through the judgment and law on the subject. 6. It is admitted case of prosecution that on 28.02.2004, a police party headed by Kamal Dev Khajuria was on official duty in connection with investigation of case FIR No.64/2003 registered under Section 457/380 RPC and during investigation they arranged a raid at 2130 hours to nab the son of accused No.2 whose involvement in said case was suspected. The accused started abusing the police party and while being armed with lathies and Darat, they attacked the police party. At 2130 hours in winter, people usually sleep in village. It is also a fact that police had gone to arrest a juvenile in FIR No.64/2003 registered under Section 457/380 RPC, so neither offences were so serious nor accused was a hardened criminal. 7. No search warrant was obtained by police; in any case if police party consisting of 5-6 officials suddenly enters into a house of a family in odd hours when they were sleeping, then certainly family would resist such action of police. 8. In Radha Krishan v. State of Uttar Pradesh reported in AIR 1963 Supreme Court 822, it is held as under: “We will deal with the last four points first. So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of' Ss. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would not re-examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court. In so far as the contravention of provisions of S.342, Cr. P.C. are concerned it is sufficient to point out that no grievance was made either before the Court of the Additional Sessions judge or before the High Court that there was such a contravention and the appellant was prejudiced and we cannot allow the point to be raised for the first time here, the reason being that whether there was prejudice is a question of fact and cannot be permitted to be agitated for the first time in an appeal under Art.136 of the Constitution. As regards the fifth point, it is sufficient to say that this Court has held that an appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court finds that the acquittal is not justified by the evidence on record it can set aside the acquittal without coming to the conclusion that there were compelling reasons for doing so. In so far as the sentence is concerned, bearing in mind the fact that the maximum sentence awarded under S. 52 of the Act is seven years it would not be right to say that in ordering the sentences in the three cases to run consecutively the appellant is being very severely punished.” 9. Even we have appreciated the evidence produced by the prosecution and conclusion arrived at by the trial Court, we do not find any perversity in the judgment of Court below. Even we have appreciated the evidence produced by the prosecution and conclusion arrived at by the trial Court, we do not find any perversity in the judgment of Court below. Further, from the perusal of challan, it reveals that disclosure statement of accused-Mani Ram with regard to hiding of weapon of offence (darat) and recovery of weapon of offence on the basis of said disclosure statement, have not been proved by the prosecution. Because PW Ajit Singh, one of the witnesses to these facts, has turned hostile and another witness to these facts and memos namely PW Dimple Kumar though cited in challan, has not been produced. 10. All the documents in challan have to be proved as per chapter V of Evidence Act, otherwise challan is mere a piece of paper without any legal values. 11. The courts while appreciating the evidence in criminal cases have to see the degree of proof higher than that of civil case. The evidence produced by prosecution should be legally admissible. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 12. Mr. Moza, learned Addl. AG, has not been able to pinpoint any infirmity, which would call for the indulgence of this Court. We are also of the view that the impugned judgment does not suffer from any infirmity apparent on record, which would warrant indulgence of this Court. 13. After rescanning the entire case of the prosecution, we do not find any reason, much less compelling and substantial reason, which would warrant indulgence of this Court for the purpose of disturbing the well reasoned judgment already recorded by the trial Court, which is based on appreciation of entire evidence on record. There is no perversity in the judgment of Court below. 14. Since we do not find merits in appeal, the same is dismissed.