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2017 DIGILAW 641 (JK)

State of J&K v. Diler Singh

2017-08-14

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. This criminal acquittal appeal has been filed against the judgment dated 25.07.2003 passed by the trial Court by which respondents have been acquitted from the offences under Sections 302, 498-A, 120-B/201 RPC and under Section 3/5 Dowry Restraint Act, 1960. 2. The prosecution story in nut shell is that on 17.05.1999, one Jagir Singh gave intimation to the police that he has received information from Diler Singh at about 8 a.m. on 16.05.1999 that whereabouts of his wife Mst. Babli Devi were not known and she was missing since morning of 16.05.1999. As per the statement of Diler Singh, he had beaten his wife on 15.05.1999 and after that they slept in one room and in the morning of 16.06.1999 he found the deceased missing. Jagir Singh, the father of the deceased, made search for her daughter and thereafter reported the matter to the police authorities, in which it was stated that the husband of the deceased and his family members were harassing her for bringing less dowry. 3. On the basis of the aforesaid report, the proceeding under Section 174 Cr. P.C. was initiated and during the course of the enquiry, dead body of deceased Babli Devi was recovered from the Nullah Dessa near Bhupa Bridge. The deceased Babli Devi was married to accused Diler Singh in the month of July, 1994 and after one year of marriage, accused Diler Singh and his parents started harassing the deceased for brining less dowry. In this regard complaints were made by the deceased to her parents and despite persuasions made by the in-laws, husband of the deceased did not stop harassing her but instead started beating the deceased and starting demanding a sum of Rs.30,000/- as more dowry and also demanded a house duly constructed in Doda city from Babli Devi and her parents. It is the case of the prosecution that since demands of dowry were not met, therefore, relation between the deceased and her husband, namely Diler Singh were strained. Thereupon accused Diler Singh in conspiracy with his parents started beating the deceased and killed her. In order to destroy the identification of the deceased cut the head of the deceased and with a view to cause disappearance of the dead body as well as the head of the dead body, the same was thrown into the water of Bhupa Bridge Nallah. In order to destroy the identification of the deceased cut the head of the deceased and with a view to cause disappearance of the dead body as well as the head of the dead body, the same was thrown into the water of Bhupa Bridge Nallah. The police after investigation filed charge-sheet for offences as aforesaid against the respondents. The trial court vide order dated 25.07.2003 after meticulous appreciation of evidence on record acquitted the respondents of the offences alleged against them. 4. We have heard learned counsel for the respondents and perused the record. 5. Learned counsel for the respondents submitted that the trial Court has recorded the findings, which are based on meticulous appreciation of evidence on record, which by no stretch of imagination can be said to be perverse or based on no evidence. It is further submitted that the entire case of the prosecution is based on circumstantial evidence and the prosecution has miserably failed to prove the chain of circumstantial evidence to bring home the guilt of the respondents. 6. The prosecution in order to prove its case has examined as many as 27 witnesses. The dead body of the deceased was recovered on 02.08.1999. It is pertinent to mention here that the statements of the prosecution witnesses and the relatives of the deceased were recorded in November, December and January, 2000 and the delay in recording the statements of the witnesses has not been explained by the prosecution anywhere and the prosecution has failed to show any cause for delay in recording the statements of the witnesses. The delay in recording the statements of the important witnesses, namely Jagir Singh, Lal Singh, Shib Devi, Chamel Singh, Angrrez Singh, Sudershan Lal, Lal Dai and Tirath Ram is fatal to the prosecution case. It is also pertinent to note that on 22.05.1999 PW-2 Lal Singh was told by one Phulel Singh that the deceased-Babli Devi has been killed by Diler Singh and others. However, father of the deceased PW-1, namely, Jagir Singh told PW-6 Sudershan Lal on 17.05.1999 that the accused has killed Babli Devi, however, aforesaid facts were not disclosed to the police by these prosecution witnesses till their statements were recorded in November and December, 1999. However, father of the deceased PW-1, namely, Jagir Singh told PW-6 Sudershan Lal on 17.05.1999 that the accused has killed Babli Devi, however, aforesaid facts were not disclosed to the police by these prosecution witnesses till their statements were recorded in November and December, 1999. It is also pertinent to mention that the missing report was lodged by none other than the father of the deceased himself but no allegation was made in the aforesaid report against the respondents. It is also pertinent to note that from the statements of the witnesses, identification of the dead body has not been established as the same was in advanced stage of decomposition and there was no flesh and bones were exposed. It is also pertinent to mention that though the dead body was recovered on 02.08.1999 but same was not got identified by her husband, Jagir Singh, who could be the best person for identification of the dead body of his wife. 7. It is also pertinent to mention here that the important witnesses, who were cited by the prosecution namely, Phulal Singh, Himat Singh, Vaid Parkash, Rugbir Singh, Behari Lal, Hakam Singh and Nasra Khan have not been produced for examination by the prosecution and no explanation has been offered for their non-examination. Most of the witnesses, who have been examined by the prosecution, namely Jagir Singh, Lal Singh, Shiv Devum Chamel Singh, Angrrez Singh, Sudershan Lal, Lal Dei, Tirath Singh are close relatives of the deceased and their statements are full of contradictions, which do not inspire confidence. It is also pertinent to mention that the statement of the brother of the deceased, namely Lal Singh was recorded after seven months i.e. on 12.12.1999 and his statement is based on hearsay and he has no personal knowledge about the occurrence. Similarly, Shiv Devi, mother of the deceased has stated that the police used to enquire about the deceased for six months of lodging the report and accused used to say that they have not committed the crime. It is further stated by her that her statement was recorded on the date when the dead body was found. Thus, there is a delay in recording statement of even mother of the deceased. It is pertinent to note that Chamel Singh, brother of the deceased, has stated that the respondents have never made any demand of dowry from him. It is further stated by her that her statement was recorded on the date when the dead body was found. Thus, there is a delay in recording statement of even mother of the deceased. It is pertinent to note that Chamel Singh, brother of the deceased, has stated that the respondents have never made any demand of dowry from him. PW- Prithvi Raj was declared hostile by the prosecution. 8. It is also pertinent to mention here that the statements recorded in proceeding under Section 174 Cr. P.C. were not made part of the charge-sheet, as a result of which, the valuable right of the respondents to contradict the witnesses was taken away. From the statement Dr. Zia Shokat Mughal, it is evident that it is difficult to ascertain the cause of death of the deceased due to advanced stage of de-composition of the dead body. Even if, the statements of the prosecution witnesses’ are accepted in their entirety, it only casts suspicion against the respondents, which cannot take place of the proof. The prosecution has failed to prove the chain of circumstantial evidence against the respondents to bring home the guilt of the respondents. 9. The trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others v. State of Rajasthan; (2004) 13 SCC 134 , Vijay Kumar v. State by Inspector General; (2009) 12 SCC 629 and Upendra Pradhan v. State of Orissa; (2015) 11 SCC 124 . 10. From perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.