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2017 DIGILAW 652 (JK)

State of J&K v. Gian Singh

2017-08-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. Cr. Acq. Appeal No. 02 of 2003 This Criminal Acquittal Appeal has been preferred against the judgment dated 07.10.2002 passed by the trial court, by which the respondents have been acquitted of offences under sections 302/148/ 149/120-B/201 RPC and 3/25, 4/5/25 Indian Arms Act. 2. The prosecution story in a nutshell is that on 22.05.1998 at about 7.40 p.m., an information was received through reliable sources by one Vidya Lal, Sub Inspector, Police Station, Udhampur that some persons have murdered Parveen Singh and Bhola Ram on account of their previous enmity. The incident was said to have been taken place in Singh Cafteria near M.H. Morh on the National High Way, Udhampur. Thereupon, the said Sub Inspector rushed to the spot and found dead bodies of the deceased persons lying in a pool of blood on floor and a table. The Sub Inspector thereupon informed the Station House Officer, Udhampur, and First Information Report for the offences as aforesaid was registered and investigation commenced. The Police after completion of the investigation filed charge sheet against the respondents for the offences as aforesaid. 3. The prosecution in order to prove its case examined as many as 54 witnesses. The respondents also led evidence in their defence. The trial court, therefore, taking into account the factum of previous enmity, motive, execution of plan and testimony of eye witnesses as well as circumstantial evidence, which were brought on record by the prosecution, vide impugned judgment acquitted the respondents of the offences alleged against them. 4. Mr. S.S. Nanda, Sr. AAG, submitted that the trial court has grossly erred in disbelieving the testimonies of eye witnesses, namely, Ravi Kumar-PW 4, Kishore Kumar -PW 5 and Joginder Kumar, PW 6. It is further submitted that from the statements of the aforesaid witnesses, previous enmity as well as motive for commission of alleged offences is established. It is also submitted that the finding of the trial court that the golden ornaments were given by the accused persons on their own volition, is perverse. It is also submitted that the trial court has grossly erred in holding that there was no previous enmity and accused Parlhad Singh was slapped by the deceased Parveen Singh and the fact remained that he was not allowed to participate in the auction of resin. It is also submitted that the trial court has grossly erred in holding that there was no previous enmity and accused Parlhad Singh was slapped by the deceased Parveen Singh and the fact remained that he was not allowed to participate in the auction of resin. It is further submitted that on the assumptions and presumptions, testimonies of eye witnesses cannot be discarded. In support of his submissions, learned Sr. AAG has referred to the judgment of the Supreme Court in the cases of, Shri Bhagwan Vs. State of Rajasthan AIR 2001 SC 2342 , AIR 1998 SC 275 and Narayan Singh vs. State of MP, AIR 1985 SC 1678 . 5. On the other hand, Mr. Sunil Sethi, senior counsel for the respondents submitted that the incident took place in a restaurant adjacent to National Highway, which was being run by one Daljit Singh. The owner, Manager and employees of the restaurant were present at the time of occurrence. Though Daljit Singh was cited as witness to the incident yet he was not examined by the prosecution. However, in fact said Daljit Singh was examined by the defence as their witness, who did not say anything against the accused persons. Thus, the trial court has rightly discarded the testimonies of the eye witnesses as the aforesaid witnesses even did not inform the brother of the deceased, Vikaram Singh, who learnt about the incident on the next day from people?s say. It is also urged that even through the incident is largely witnessed, the fact remains that in the First Information Report, the names of the accused persons have not been stated. It is submitted that one of eye witnesses, PW-5 Kishore Kumar has been declared hostile. It is also submitted that the position of eye witnesses also not shown in the site plan. It is submitted that the trial court on the basis of meticulous appreciation of evidence available on record has given its findings, which do not call for interference by this Court. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. According to the prosecution story, deceased Parveen Singh stopped Amar Singh from taking part in the auction of resin on behalf of accused Prahlad Singh, who according to Parveen Singh was absconding in connection with a murder case. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. According to the prosecution story, deceased Parveen Singh stopped Amar Singh from taking part in the auction of resin on behalf of accused Prahlad Singh, who according to Parveen Singh was absconding in connection with a murder case. Deceased Parveen Singh reportedly stopped Amar Singh, who ran away from the place. For the year, 1997-98, the job was taken on contract by the accused Gian Singh, who was instrumental in allotting one forest to Gani and Shabir each. It is also alleged by the prosecution that accused Parhlad Singh alias Goggi had taken Rs.50,000/- from the deceased Parveen Singh, which he did not return. Therefore, the accused persons bore a grudge and enmity against the deceased. They had scuffle during the forest auction, in which deceased had snatched a golden chain and bangle from accused Gian Singh. In order to take revenge, as per the prosecution story, the accused conspired the murder of the deceased Parveen Singh and Bhola Nath. 7. The prosecution in order to prove its case, examined PW 4- Ravi Kumar, PW 9-Koshal Kumar, PW 10-Durga Dass, PW 14-Ranjeet Singh, PW 16- Mohd Shabir and PW 17-Gani Ahmed. From the perusal of the statements of the aforesaid witnesses, it is evident that prosecution has set out two circumstances to prove the fact that accused had previous enmity with the deceased, namely, Paveen Singh. The deceased Parveen Singh did not allow Parhlad Singh to take part in the auction of resin and accordingly, the deceased snatched the golden ornaments from accused Gian Singh. It is pertinent to note here that there is no material on record to show that Amar Singh had actually power of attorney on behalf of the accused Parhlad Singh to take part in the auction of resin. 8. PW-16 Mohd Shabir has stated that Parveen Singh has no authority to stop anybody to take part in the auction of resin. The Principal Conservator of Forest was present at the time of auction and nobody complained to him that Parhlad Singh could not take part in the bid. From the careful scrutiny of the statement of the aforesaid witness, it is evident that there is no material on record to show that the deceased Parveen Singh had advanced a sum of Rs. From the careful scrutiny of the statement of the aforesaid witness, it is evident that there is no material on record to show that the deceased Parveen Singh had advanced a sum of Rs. 50,000/- to accused Parhlad Singh. PW4-Ravi Kumar has stated in his evidence that he has seen the deceased Parveen Singh made accused Gian Singh and Prahlad Singh to part away with their golden ornaments on two different dates, at two different places. Therefore, his testimony is relevant to arrive at a conclusion that the deceased had made the accused Gian Singh and Prahlad Singh to part away with the gold ornaments. Thus, from the above narration of facts, the prosecution has failed to prove the motive. 9. Now, we may advert to the execution of plan to murder the deceased persons. PW 4-Ravi Kumar has stated that soon after the occurrence, he had seen a patrolling Police Party came on the spot and when he reached the spot, owner of the cafeteria and two/three persons were present there. However, none of them told him who had fired the gun shots at the deceased. Bikram Singh, brother of the deceased Parveen Singh, had stated that when he came to know about the death of his brother, he rushed to the spot and saw that Kishroe Kumar, Ravi Kumar, Joginder Singh and owner of the hotel were present there. He neither enquired from anyone as to how the occurrence has taken place nor did anybody tell him as to how it happened. It is pertinent to mention here that PW 4-Ravi Kumar, PW 5-Kishore Kumar, PW-6-Joginder Kumar were the eye witnesses of the incident. They should have immediately informed about the incident and should have told the SHO, Udhampur as to who had shot at the deceased persons. PW-12 Bikram Singh was not an eye witness to the incident as he reached one day after the occurrence. Thus, there were no eye witnesses to the incident. Besides that, material witnesses, namely, PW-4 Ravi Kumar, PW5-Kishore Kumar, PW 6, Joginder Kumar PW17-Gani Ahmed, PW 16-Mohd Shabir and PW14-Ranjit Singh, who have had a past criminal record and some of them like PW-6 Joginder Kumar had admittedly been convicted in a criminal case and was also detained under Public Safety Act. Thus, in view of the law laid down by the Supreme Court in the case of Ali Hasan Vs. Thus, in view of the law laid down by the Supreme Court in the case of Ali Hasan Vs. State of UP (1995) CrLJ 1641, their evidences are not reliable. 10. We may now take into account the circumstantial evidence brought on record by the prosecution. Accused, Arun Choudhary, Rajesh Dogra and Parhlad Singh have allegedly made disclosure statements, pursuant to which, alleged weapons of offence have been recovered. On the basis of the disclosure statement made by accused Arun Choudhary, “double barrel gun” was recovered and on the basis of disclosure statement made by accused Rajesh Dogra, “kirch” was recovered. It is pertinent to note that Arun Choudhary was arrested on 17.07.1998 and he made disclosure statement on 21.07.1998. Similarly, Rajesh Dogra was arrested on 19.07.1998, whereas his disclosure statement was recorded on 27.07.1998. Likewise, Parhlad Singh was arrested on 19.07.1998 and his disclosure was recorded on 26.07.1998. It is pertinent to mention that all the aforesaid witnesses were being interrogated by the Police. However, no explanation with regard to delay in recording the disclosure statements has been made. 11. So far as Forensic Science Laboratory report is concerned, PW 53, Sardar Khan has stated that the “double barrel gun” was recovered on the basis of disclosure statement of accused Arun Choudhary, which was seized on 21.07.1998 and the same was sent to the FSL on 04.08.1998. However, before dispatching the aforesaid weapons of offence, the same was kept in the Police Station. The aforesaid witness also stated that “kirch” i.e. weapon of offence was not blood stained. PW 5-Kishore Kumar and PW-15 Raj Kumar have been declared hostile by the prosecution and nothing incriminating in their cross-examination could be elicited against the respondents. 12. It is worthwhile to mention that even though allegedly the incident was witnessed by the eye witnesses yet in the FIR names of the accused persons have not been mentioned. It is also pertinent to mention here that the alleged eye witnesses did not inform anybody including brother of the deceased, Bikram Singh as well as Police Officer, who visited the spot about the aforesaid incident. Admittedly, the incident took place in the Cafeteria, which was owned by Daljit Singh, who as well as Manager were also present, however, none of them was examined by the prosecution. Admittedly, the incident took place in the Cafeteria, which was owned by Daljit Singh, who as well as Manager were also present, however, none of them was examined by the prosecution. It is pertinent to note here that Daljit Singh was cited as witness, however, he was not examined by the prosecution and was examined by the defence as witness, who has stated that he did not see the accused persons on spot. It is also relevant to mention that position of the eye witnesses was not shown in the site plan. There were three shops in the Cafeteria; however, no person from the aforesaid shops was examined by the prosecution. 13. 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 ). 14. 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. Cr. Acq. Appeal No. 34/2003 15. This Criminal Acquittal Appeal has been preferred against the judgment dated 21.05.2003 passed by the trial court, by which the respondents have been acquitted of offences under sections 302/148/149/120-B/201 RPC and 4/27 Arms Act. 16. For the reasons assigned by us in the order passed in Cr. Acquittal Appeal No. 02/2003, this Criminal Acquittal Appeal also stand dismissed.