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2017 DIGILAW 651 (JK)

State of J&K v. Amitabh Alias Latrum

2017-08-17

ALOK ARADHE, SANJEEV KUMAR

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JUDGMENT : Alok Aradhe, J. This acquittal appeal has been preferred against the judgment dated 15.03.2005 passed by the Trial Court by which the respondents have been acquitted for offences under Sections 302, 307, 324, 149, 450, 120-B of the RPC and 7/27 Arms Act. 2. The prosecution story briefly stated is that on 26.06.2001, information was received in Police Station Doda that some unidentified terrorists armed with illegal arms and ammunition with intention to assassinate people fired indiscriminately upon the public in general who had gathered in connection with marriage ceremony in the house of one Om Prakash and also hurled two grenades, as a result of which Om Prakash, Ram Singh and Shakti Devi and Darshana Devi were injured, who were shifted to District Hospital Doda for treatment. On the basis of the aforesaid information, FIR for offences under Sections 307 RPC and 3 of Public Safety Act and 7/27 of the Arms Act was registered. On the date of occurrence, i.e. on 26.06.2001, Om Prakash and Ram Singh succumbed to the injuries in District Hospital, Doda and as such offence under Section 302 of the RPC was added. Lalita Devi with whom the marriage of the deceased was to be solemnized committed suicide on 09.08.2001 by consuming poison. In the suicide note, the aforesaid Lalita Devi stated that accused Amitabh SPO had committed the murder of Om Prakash and in the grief, she is committing the suicide. As per the prosecution story, accused Amitabh is related to deceased Lalita as cousin. Thereafter, the statement of witnesses under Section 161 CrPC were recorded and it was revealed that it was not a militancy related incident and instead accused Dharam Singh who was brother in law of Rakesh, the real brother of the deceased, Om Prakash had strained relations with deceased Om Prakash and his mother Thakri Devi and they had inimical relations. Deceased Om Prakash and his brother Rakesh under the pressure of accused Dharam Singh had sold eight marlas of land situate at Village Tondwah and Dharam Singh grabbed Rs.40,000/- the cost of the land. It is the case of the prosecution that thereafter accused Dharam Singh had an eye on the house of the deceased Om Prakash and he used to threaten the deceased that he wanted to construct a colony on the land in question. It is the case of the prosecution that thereafter accused Dharam Singh had an eye on the house of the deceased Om Prakash and he used to threaten the deceased that he wanted to construct a colony on the land in question. During the investigation and from the facts gathered, the prosecution came to the conclusion that the accused Amitabh had worked with army in militancy related operations before his recruitment as SPO and during the aforesaid operations, the accused Amitabh had concealed the arms and ammunition of the militants and used the same in the aforesaid incident. On the basis of the investigation, the charge sheet was filed against the respondents for the offence as aforesaid. 3. The prosecution in order to prove its case examined Paras Ram, Thakur Singh, Tej Ram, Balwan Singh, Shakti Devi, Thakri Devi, Pawan Kumar, Guloo Devi, Bharat Bhushan, Tek Raj, Anil Kumar, Dr. Abdul Majid Malik, Shadi Lal Constable, Ghulam Rasool H.C. 48/D, Ganesh Chander, Jatinder Pal Constable, Angrez Singh, Shamas Din, Kuldip Raj, Asgar Hussain, Shamas Din Teshildar, Darshana Devi, and Mohan Lal Thaker as its witnesses, whereas the respondents produced witnesses namely Lal Chand, Harbinder Singh, Bansi Lal, Chuni Lal Advocate, Swami Raj, Rameshwari Devi, and Rakesh Kumar. The Trial Court vide impugned judgment on meticulous appreciation of record acquitted the respondents of the offences alleged against them. 4. It is pertinent to mention here that prosecution has cited as many as 9 witnesses as eye witnesses. However, it is pertinent to note that all the aforesaid eye witnesses are relatives of the deceased persons. Therefore, their statement is required to be scanned more cautiously. We have gone through the evidence. From the perusal of the evidence of the nine eye witnesses, we find that only two witnesses Balwan Singh and Tej Ram have identified the accused persons, whereas the remaining witnesses are heresy witnesses and, therefore, cannot be said to be eye witnesses. The first eye witness namely Darshana Devi was declared incompetent by the Court vide order dated 12.12.2002. The second eye witness namely Bhagat Ram was given up by the prosecution on 26.11.2002. 5. The first eye witness namely Darshana Devi was declared incompetent by the Court vide order dated 12.12.2002. The second eye witness namely Bhagat Ram was given up by the prosecution on 26.11.2002. 5. The third eye witness namely Tej Ram stated before the Court on 26.06.2001 that there was a kirtan in the house of deceased Om Prakash and at about 8.45 pm, firing took place in the house of Om Prakash and he visited the spot immediately after the firing had stopped. He also heard two blasts when he was proceeding towards the place of occurrence. He saw four persons running towards the bus stand out of whom two persons were carrying AK-56 rifles in their hands and two persons were empty handed. He identified one person namely Latrum as he used to come to the house of the accused, Dharam Singh. 6. The fourth eye witness namely Guloo Devi had stated that she was in her house when firing took place and grenades were exploded. When the firing stopped, she went towards the house and saw that deceased Ram Singh and Om Prakash were lying and had sustained bullet injuries and were taken to the hospital. The fifth eye witness Thakri Devi stated that Dharam Singh wanted to grab her land and on account of conspiracy, he got committed the crime. She has neither seen the incident nor had narrated the incident to the police. The sixth eye witness namely Rakesh Kumar was given up by the prosecution on 27.12.2002. The seventh eye witness namely Thakur Singh stated that deceased Ram Singh was his son and he received wireless message that his son and Om Prakash have sustained injuries due to firing and bomb blast in Tondwah, in his brother’s house. The 8th eye witness namely Shakti Devi had stated that between 8.30 to 8.45 pm, her younger brother Om Prakash was affixing photo in the room and in the meanwhile two persons came and started indiscriminate firing. It was further stated by her that she was in the verandah when two grenades were lobbed due to which she and Darshana Devi were injured. On the next date, her husband Balwan Singh told her that he has identified persons, Yogesh Kumar and Latrum. It was further stated by her that she was in the verandah when two grenades were lobbed due to which she and Darshana Devi were injured. On the next date, her husband Balwan Singh told her that he has identified persons, Yogesh Kumar and Latrum. The 9th eye witness Balwan Singh has stated that Kirtan had started between 8.30 to 9 O’clock and he was inside the said house of Om Prakash. He recognized the assailants as Latrum and Yogesh. 7. Thus, from the above narration of facts, it is graphically clear that out of the alleged aforesaid nine eye witnesses, in fact, two witnesses have witnessed the incident, namely Balwan Singh and Tej Singh, who have identified the accused persons. However, it is pertinent to mention that their statements were recorded after an inordinate delay. The statements of Darshana Devi, Bhagat Ram, Tej Ram, Guloo Devi, Rakesh Kumar and Thakur Singh were recorded on 12.09.2001 i.e. after a gap of two and half months from the date of occurrence. Similarly, statements of PWs Thakri Devi, Shakti Devi and Balwan Singh were recorded on 02.08.2001 after a gap of more than one month. The aforesaid witnesses were closely related to the deceased persons and they are easily available. However, the investigating officer neither examined them nor any explanation was offered for delay in their examination. Thus, the delay in the examination of the aforesaid witnesses renders their testimony doubtful and is not worth of reliance. 8. So far as the recovery of weapon of offence is concerned, same was recovered from the densely populated area. However, it is pertinent to note that no independent witness has been examined and there is contradiction with regard to recovery of weapon of offence in the statement of witnesses, namely, PW Tek Raj and PW Asgar Hussain. It is pertinent to note that PW-Tek Raj has stated that recovery of weapon of offence was made from a room whereas PW-Azgar Hussain has stated that recovery was effected from a trunk which was locked. 9. It is also pertinent to note that Rakesh Kumar brother of the deceased Om Prakash, Bhagat Ram independent (eye witness), Kulbushan Constable who was a witness to the issuance of arms to the accused persons and Nand Lal, I.O. of the case have been given up by the prosecution. 9. It is also pertinent to note that Rakesh Kumar brother of the deceased Om Prakash, Bhagat Ram independent (eye witness), Kulbushan Constable who was a witness to the issuance of arms to the accused persons and Nand Lal, I.O. of the case have been given up by the prosecution. Witness Chuni Lal Thakur, Advocate though listed as prosecution witness was not produced by the prosecution. It is also pertinent to mention that all the material witnesses cited in the challan should be produced in support of prosecution case. On the other hand, the aforesaid witnesses have been examined by the respondents in their defense. who have denied the incident. It is in these facts and circumstances since there were contradictions and improvements in the statements of the witnesses, the non examination of the investigating officer is fatal to the prosecution case. It is also pertinent to mention here that the placement of empty cartridges in the site plan has not been mentioned in the said plan and the cartridges were kept in possession by the Investigating officer and were not sent to the police Malkhana. The articles were recovered on the spot were sent to the FSL on 13.09.2001, after gap of two and half months from the date of incident. No explanation in this regard has been offered on behalf of the prosecution and no independent witnesses were examined in support of the recovery of weapon of offence. From the statement of witnesses, we find that they have failed to prove that any conspiracy was hatched by accused Dharam Singh along with accused persons for commission of crime. Admittedly, the deceased Om Prakash and the accused Dharam Singh had previous enmity with regard to land and house and no independent witness has been examined with regard to hatching of the conspiracy. It is also pertinent to mention here that the respondents have produced a witness namely PW Lal Chand who is a government employee and was lineman on the date of occurrence in the area who has stated in his statement that there was no electricity at the time when the incident took place and since the transformer was not functional, he could not fix the same due to firing. Therefore, in the absence of electricity, the statement of Balwan Singh and Tek Raj that they had actually recognized the accused persons also cannot be given any weight. Therefore, in the absence of electricity, the statement of Balwan Singh and Tek Raj that they had actually recognized the accused persons also cannot be given any weight. 10. It is also pertinent to mention here that defense witness Harbinder Singh had stated that he was operation incharge of Doda area prior to 11.06.2001 and accused SPOs namely Yogesh, Rajinder and Amitabh were with him in the operation and after 11.06.2001, he came along with Sepoys of STF at DPL, Doda and there were twenty boys under his control in which Rajinder, Yogesh and Amitabh were also present. Therefore, the presence of the accused persons at the time of incident has also not been established by the prosecution. 11. 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. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124 . 12. 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.