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2017 DIGILAW 676 (JK)

Anoop Singh v. State of J&K

2017-08-19

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Appellant -Anoop Singh, who has been convicted by trial Court (3rd Additional Sessions Judge, Jammu) vide judgments dated 15.12.2003 in FIR No.280/89 under section 307/353/201 RPC of Police Station Digiana Jammu, has filed present appeal on various grounds. 2. In the memo of appeal, it has been stated that during trial, Court has recorded statements of three witnesses, who all were police personnel and no independent witness has been examined. That prosecution story is that accused party at the time of alleged occurrence were standing at ‘Kharad shop’, that too in a day time and in busy market, still police could not produce even a single private witness as prosecution witness. That neither empty cartridges were seized which allegedly were fired from the firm arm of accused nor Toka allegedly possessed by other accused was seized. That police too has stated that they fired on the accused but neither said weapon nor empty cartridges were seized. That Investigating Officer did not appear in Court so all the documents in Challan including FIR have not been proved. 3. The case of the prosecution is that Accused No. 1, who was involved in FIR No. 280/89 and in many other cases was absconding. On 23-05-1989, Prem Chand, Head Constable Incharge Police Post, Digiana, had come to know at about 1545 hrs that accused Anoop Singh along with his brother were standing in a shop at Digiana. Further, it was found that both these accused persons were equipped with arms and ammunition and is likely to commit any offence on the spot. After receiving this information, Prem Chand, HC along with other police personals went towards Digiana for arresting the accused persons. When the accused persons saw the police party proceeding towards them, both the accused persons ran away from the spot. While fleeing from the spot, accused Anoop Singh had fired upon the police party with his revolver with an intention to kill them and they saved their lives by laying down on the ground. The other accused was having Tokka in his hand at the time of incident. The Police party could not arrest the accused due to firing by the accused. The other accused was having Tokka in his hand at the time of incident. The Police party could not arrest the accused due to firing by the accused. Later on, the accused Anoop Sigh was arrested by the police and during interrogation accused Anoop Singh had stated that the revolver with which he had fired upon the police party, was thrown by him in the canal. The revolver could not be traced out from the canal, this way accused Anoop Singh had destroyed the weapon of offence by throwing it in the canal. Further, it is asserted in the challan that both the accused persons had created terror in the Digiana area and whole of the population of Digiana area was afraid of these two persons, as such, none of the person from the locality was ready to appear as witness in the case. Therefore, local people could not array as witnesses. Thereafter, police registered a case and after investigation had produced the challan against two accused namely Anoop Singh and his brother Simarnjeet Singh in the court of learned Chief Judicial Magistrate, Jammu under sections 307/307/353/201 RPC, who committed this case to the court of Principal Sessions Judge, Jammu, who in turn, transferred the case for trial to the Court of 3rd Addl. Sessions Judge, Jammu. 4. On 12.2.1990 accused Simaranjeet was discharged and Anoop Singh was charge-sheeted u/s 307/353/201 RPC. Accused denied the accusation and prosecution was directed to produce the evidence. Prosecution cited as many as 11 witnesses, but examined only three witnesses. PW Head Constable Prem Chand, No. 285-J On examination in Chief by SPP, has stated that accused person present in the court is known to him. On 23-5-1989, he was on duty at Police Post, Gangyal. He alongwith Raj Singh, Thoru Ram, Ali Mohd., Jang Bhadur, Des Raj, Naresh Kumar and Shamsher Singh, constable were investigating the case FIR No. 280/1989 u/s 323/341 RPC against the accused persons namely Anoop Singh and Pappi, who were being searched at Digiana. During the investigation, when he along with other persons reached Digiana at 15:45 hrs, it was found that Anoop Singh and his real brother equipped with weapon were standing outside the shop of Kharadi. On the basis of this information, he alongwith other person tried to catch the accused persons. During the investigation, when he along with other persons reached Digiana at 15:45 hrs, it was found that Anoop Singh and his real brother equipped with weapon were standing outside the shop of Kharadi. On the basis of this information, he alongwith other person tried to catch the accused persons. On seeing the police personals, they fled away from the spot and while fleeing accused Anoop Singh fired upon him with his revolver. For saving themselves, he along with other persons had laid down on the ground. On his orders, Constable Raj Singh had also fired two rounds in air. The accused then fled away from the spot. He along with other persons had tried to chase the accused persons but failed to trace them. Accused Anoop Singh is a professional criminal and also have been involved in cases which had already been lodged in the concerned Police Station and he is also involved in various cases of beating of Drivers and Conductors of various matadoors. On return, he entered all these facts in the daily register of Police Post and after that he had requested the Police Station concerned to register a case against the accused persons. He along with other persons were in Police uniform. At the time of occurrence, Anoop Singh was having a revolver in his hand and his brother whose name was Billa was having a Khokhri and accused had fired from revolver. Accused persons wanted to kill the police personals and the accused persons had obstructed them in performing their official duties. He along with other persons had put down to save their lives otherwise accused would have killed them. On cross examination by the counsel for the accused persons, the witness has stated that he did not lodge the FIR, but he had lodged a report in that regard. FIR was lodged in Police Station. He did not remember as to when they had gone for patrolling. SI, Inderpal Singh was the Incharge, Police Post. The seven official mentioned above by him, out of those six were deputed from Model Town for special duty. There were seven police personnel at Gangyal Police Post including him and there were also 7-8 police personals posted at Model Town. Constable Raj Singh was on duty at the Police Post. The Kharadi shop in which the accused were standing belonged to one Sadar. There were seven police personnel at Gangyal Police Post including him and there were also 7-8 police personals posted at Model Town. Constable Raj Singh was on duty at the Police Post. The Kharadi shop in which the accused were standing belonged to one Sadar. Name of shop is not known to him. Shop is singly located on the left side. Accused were 150 yards away from him and others, when they fled away on seeing them. Puppi was not with the accused. He does not remember as to what cloth wore by the accused. He has lodged report at 17:00 hrs i.e. at 5:00 p.m. He does not fully remember as to whether his statement was recorded by police. As soon as accused saw the him and others, they fled away. When witness and others chased the accused, distance was of 150 yards and after chasing 40-50 yards, the accused, Anoop Singh had fired upon them, while escaping witness and others laid down on the ground in order to save their lives. There was vacant place on the spot surrounded by ‘Safeda’ trees. In FIR No. 250/89 accused Anoop Singh and others were absconding. Anoop Singh’s profession is not known to the witness. Witness did not know as to whether the accused Anoop Singh was an employee of Telephone office or not. Accused is the resident of Punjab. Witness did not remember at this time as to when his statement was recorded by the Police. Statement of Raj Singh and others were recorded in presence of witness. The house of Nasib Kour is at a distance of about 200 yard. The place wherefrom accused had fired upon belongs to Nasib Kour. House is situated on the eastern side and before the house of Nasib Kour, there was road. Shop of Kharadi is also there. The house of Nasib Kour is situated on the eastern side and about 200 yards away from the place of occurrence. Witness did not remember as to when accused Anoop Singh was arrested. He was not arrested afterwards. He was enlarged on anticipatory bail. Constable Raj Singh had fired on his direction. He was authorized to give such directions/orders in defence. This incident was not seen by anyone except Mohan Singh S/o Naram Singh. There is usual thorough fare for general public on the Pathankot road. He was not arrested afterwards. He was enlarged on anticipatory bail. Constable Raj Singh had fired on his direction. He was authorized to give such directions/orders in defence. This incident was not seen by anyone except Mohan Singh S/o Naram Singh. There is usual thorough fare for general public on the Pathankot road. Nobody had come on spot after the sound of fire shot by accused. He can’t say anything with regard to recovery of anything from accused. When accused fired, whether place was searched for empty cartridges. In FIR 280/89, it has been mentioned that accused used to harass the Matador persons. He does not remember number of matador and who was complainant. FIR stands registered in the Police Station, Satwari against the accused apart from FIR Nos. 280/89 and 374/89. Service rifle was only with Constable Raj Singh with which he fired upon the accused and there was 10 rounds in his rifle. He does not remember whether he had got recorded in the statement u/s 161 Cr.P.C. that Constable Raj Singh had only ten rounds. There was 5-10 minutes gap of firing between the accused and constable Raj Singh. no other question. PW Constable Raj Singh, 667-SGC On examination-in-Chief by SPP, the witness has stated that accused Anoop Singh is known to him and his brother, Billa is also known to him. On 23-05-1989, witness was posted as Constable at Police Post, Gangyal. At that time, Inderpal, ASI was the Incharge of Chowki and Prem Chand, Head Constable was deputed on special duty. Head Constable Prem Chand was investigating FIR 280/89 u/s 341/323 RPC and these accused persons were to be arrested in this case. He accompanied with Head Constable Prem Chand and other constables were on duty and were patrolling in search of the accused. Accused Anoop present in court and his brother Billa were standing on the shop of Kharadi on that day. As soon as accused persons saw the police party, they tried to flee away from the spot and while running away accused Anoop Singh fired upon him and others with the revolver with an intention to kill them. He and others had laid down on the ground to save their lives. Had he and others been not laid down on the ground, they would have been killed. He had his own service rifle with which he had fired two rounds in air. He and others had laid down on the ground to save their lives. Had he and others been not laid down on the ground, they would have been killed. He had his own service rifle with which he had fired two rounds in air. However, the accused successfully escaped from the spot despite their best efforts to apprehend them. Witness further stated that they were ten persons on patrolling, four of them were Sepoy and Hawaldar rank and three were Guard. He and Head Constable Prem Chand and others had seen the accused at the shop of Kharadi from the distance of 20-30 yards. There was no other person at the shop of Kharadi except the accused persons. There was another shop adjacent to the shop of Kharadi. They chased the accused about one kilometer alongside the canal. He can’t say that the accused had crossed the canal or not. Accused had fired upon them from the other side of the canal. He and others had chased the accused for 15-20 minutes and accused were 150 yard away from them. He did not remember as to when they moved from Police Station, may be at 3:45. There was very little movement on the road. He had fired upon the accused after one and a half minute of firing by the accused. This is wrong that he had fired upon the accused after 10 minutes of firing by the accused. Witness No. 1 was there. He can fire on the orders of Incharge. His statement was recorded by the police. He did not remember as to when police recorded his statement. He can’t say about others whose statement were recorded. There was no shop on the side where accused fled away. Accused fled away on the northern side. They remained searching the accused in the bushes. He can’t say the distance of canal from the northern side. From the northern side, Canal is 500 yards or 1000 yards at some places and 200 yard at some places. He can’t say the distance between the road and wherefrom accused had fired. I.O had knowledge, whether revolver was seized from the accused or not. Whether empty cartridges were seized or not, I.O had knowledge; he was neither present at the time of seizure nor at the time of drawing site plan. He does not know as to when accused were arrested. I.O had knowledge, whether revolver was seized from the accused or not. Whether empty cartridges were seized or not, I.O had knowledge; he was neither present at the time of seizure nor at the time of drawing site plan. He does not know as to when accused were arrested. He does not know as to what is the profession of accused. Constable Des Raj, 1155/J On examination-in-Chief by SPP, the witness has stated that accused present in the court is known to him from his face. In the month May 1989, he was posted on special duty at Police Post Gangyal. On 23-05-1989, he was on Guard duty and was posted at Model Town Digiana. Incident was of evening 3-4 p.m., when Constable Thoru Ram, SG Raj Singh, Const Ali Mohd, Constable Faquir Singh came and directed him to be ready in uniform to accompany them. They all were in search of accused Anoop Singh. He accompanied the police party. He was not knowing Anoop Singh prior to the incident. When police party reached near to the house at Digiana Ashram, accused fled away from the spot and while fleeing accused fired upon the police party. He and others chased the accused. SGC Raj Singh also fired in air from his service rifle. He was also with the police party. Accused succeeded in running away and vanished in the bushes. It was heard that accused is the resident of Punjab and is an employee in Telephone exchange. Accused fired upon the police in order to save himself. On cross examination stated that he was told by the police that a licensed revolver is to be recovered from the accused Anoop Singh. His statement was not recorded. Name of the owner of the house in which accused was hiding is not known to him. He saw accused while he was running away behind the house and when he was running, he was alone, there was no body with him. SGC Raj Singh had fired only one fire in air. The empty cartridge was lifted and was given to I.O and it remained with him. Police fired after the lapse of some time when accused fired. 5. This is the only evidence of prosecution. Court below after recording the statement of accused under section 342 Cr.P.C., convicted the accused on the ground that prosecution has established its case beyond reasonable doubts. Police fired after the lapse of some time when accused fired. 5. This is the only evidence of prosecution. Court below after recording the statement of accused under section 342 Cr.P.C., convicted the accused on the ground that prosecution has established its case beyond reasonable doubts. Accordingly accused has been sentenced to undergo simple imprisonment for five years in addition a fine of Rs.1000/- under Section 307 RPC. 6. Learned counsel for appellant, while arguing the matter has taken various pleas. It has been stated that appellant has been convicted on no evidence at all; that material witnesses have not been examined; that I/O in the case has not been examined and due to non examination of I/O, site plan, seizure memo and other documents have remained unproved; that neither alleged fire arm used by accused nor empty cartridges of fire have been seized; that there are lot of contradictions in the statements of witnesses which have been examined. Whereas G.A has supported the judgment of court below. 7. I have given my thoughtful consideration to whole aspects of matter. 8. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offense charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defence established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. 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. 9. More the heinous offense, stricter proofs are required. The fact in issue can be established by direct evidence or by indirect evidence. 10. In present case, prosecution has cited as many as 11 witnesses, but produced only three witnesses. The case of prosecution in brief is that on 23-05-1989, Prem Chand, Head Constable Incharge Police Post, Digiana had come to know at about 15:45 hrs that accused Anoop Singh alongwith his brother were standing in a shop at Digiana and were equipped with arms and ammunition and are likely to commit any offence on the spot. After receiving this information, Prem Chand, HC alongwith other police personals went towards Digiana for arresting the accused persons. When the accused persons saw the police party proceeding towards them, both the accused persons ran away from the spot. While fleeing from the spot, accused Anoop Singh fired upon the police party with his revolver with an intention to kill them and they saved their lives by lying down on the ground. The other accused was having Tokka in his hand at the time of incident. The Police party could not arrest the accused due to firing by the accused. So prosecution was required to prove following relevant facts during trial:- 1. That on 23-05-1989, Prem Chand, Head Constable Incharge Police Post, Digiana had come to know at about 15:45 hrs that accused Anoop Singh alongwith his brother were standing in a shop at Digiana 2. That they were equipped with arms and ammunition and are likely to commit any offence on the spot. 3. That on 23-05-1989, Prem Chand, Head Constable Incharge Police Post, Digiana had come to know at about 15:45 hrs that accused Anoop Singh alongwith his brother were standing in a shop at Digiana 2. That they were equipped with arms and ammunition and are likely to commit any offence on the spot. 3. That after receiving this information, Prem Chand, HC alongwith other police personals went towards Digiana for arresting the accused persons 4. That when the accused persons saw the police party proceeding towards them, both the accused persons ran away from the spot. While fleeing from the spot, accused Anoop Singh fired upon the police party with his revolver with an intention to kill them and they saved their lives by lying down on the ground. The other accused was having Tokka in his hand at the time of incident. 11. Now coming to appreciation of statements of witnesses examined during trial, I find that there are lot of contradictions in their statements. PW Prem Chand, No. 285-J has stated that on 23-5-1989, he along with Raj Singh, Thoru Ram, Ali Mohd., Jang Bhadur, Des Raj, Naresh Kumar and Shamsher Singh, constable were investigating the case FIR No. 280/1989 u/s 323/341 RPC against the accused persons namely, Anoop Singh and Pappi who were being searched at Digiana. During the investigation, when he along with other persons reached Digiana at 15:45 hrs, it was found that Anoop Singh and his real brother equipped with weapon were standing outside the shop of Kharadi. On the basis of this information, he along with other person tried to catch the accused persons. On seeing the police personals, they fled away from the spot and while fleeing accused Anoop Singh fired upon him with his revolver. For saving themselves, he along with other persons had laid down on the ground. On his orders Constable Raj Singh had also fired two rounds in air. The accused then fled away from the spot. He along with other persons had chased the accused persons but failed to trace them. On cross examination has stated that Kharadi shop in which the accused were standing belonged to one Sadar; Shop is singly located on the left side. The accused then fled away from the spot. He along with other persons had chased the accused persons but failed to trace them. On cross examination has stated that Kharadi shop in which the accused were standing belonged to one Sadar; Shop is singly located on the left side. When he and others chased the accused, distance was of 150 yards and after chasing 40-50 yards, the accused, Anoop Singh had fired upon them while escaping and witness and others lay down on the ground in order to save their lives. Whereas PW Constable Raj Singh, 667-SGC has stated that there was another shop adjacent to the shop of Kharadi. They chased the accused about one kilometer alongside the canal. He can’t say that the accused had crossed the canal or not. Accused had fired upon them from the other side of the canal. He and others had chased the accused for 15-20 minutes and accused were 150 yard away from them. In this way there is no corroboration with regard to situation of Khardhi shop; PW Des Raj has stated that shop was singly located, PW Raj Singh has stated that one more shop was there; one has stated that they chased the accused up to 1 km for 15-20 minutes; but another has not stated such fact. PW2 Raj Singh has stated that accused fired from the other side of canal but PW Des Raj has not said so and he has nowhere mentioned that accused fled away towards other side of the canal. Whereas third witness PW constable Des Raj, 1155/J has given altogether different version, he has stated that they were in search of accused Anoop Singh only when police party reached near to the house at Digiana Ashram, accused fled away from the spot and while fleeing accused fired upon the police party. He and others chased the accused. This witness in this way has not stated anything about another accused and he has stated that accused Anoop Singh was near house. Whereas PWs Prem Chand and Raj Singh have stated that accused were standing in the said shop. PW Des Raj has also not stated that accused fired from other side of the canal. 12. In this way, there are material contradictions in the statements of these witnesses. These contradictions could have been explained if I/O has been examined. Whereas PWs Prem Chand and Raj Singh have stated that accused were standing in the said shop. PW Des Raj has also not stated that accused fired from other side of the canal. 12. In this way, there are material contradictions in the statements of these witnesses. These contradictions could have been explained if I/O has been examined. Place of occurrence has not been proved. Non examination of I/O has caused great prejudice to accused in defence. There have been cited 8 eye witnesses, but only three have been examined. The original report of daily diary no.16 dated 23.5.1989 of P/P Gangyal upon which FIR has been lodged, has not been proved. Weapon of offence used by accused for firing has not been recovered, although offence under section 201 RPC has been added by stating that same has been destroyed, but there is no evidence with this regard. Empty cartridges of fire arms used by accused and constable Raj Singh have not been seized, because seizures of empty cartridges would have established the fact of firing. There is no expert report, from which, it can be inferred that PW Raj Singh used his rifle by firing on accused in defense. 13. Further there is no evidence has been produced, in order to show that Annop Singh was required in FIR 280/89. No witness from locality or from the place occurrence have been produced. I have gone through the list of witnesses cited in challan. All are police witnesses; no independent witness has been cited. In case where there are material contradictions in the statements of witnesses and there was lot of carelessness on the part of I/O to collect substantial evidence, then non examination of I/O definitely is fatal for prosecution case. The primary duty of the I/O is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence. After commission of offence I/O has duty -(1) to proceed to the spot; (2) to ascertain the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit (Sec. 161 Cr. P.C.); (b) the search of places and seizure of things necessary for the investigation to be proceeded with for the trial. On completion of the investigation, if it appears to the investigator that there is sufficient evidence or reasonable ground to place the accused for trial, the investigating officer shall forward to the court a report in that regard along with the evidence and the accused. The investigation officer is a material witness because he gets the first version of the witnesses from which later on the court is able to judge the veracity of the evidence, as to whether the witnesses are telling, the truth or not. 14. In present case, I am of the view that the prosecution has not shown any reason for non-examination of the investigating officer. I think prosecution has withheld examination of investigating officer with an intention to cover up the lacunae in prosecution case. As already held there are lots of contradictions in the statements of three witnesses produced by the prosecution. If the investigating officer would have been examined, he could have been confronted with the surrounding of place of occurrence to bring about the real fact. The time of occurrence is 3.45 p.m. in May which is a summer time still no witness of locality/independent has been cited. If the investigating officer would have been examined, these questions could have been forwarded to him. 15. In this way, I am of the view that in the present case the investigating officer was an important witness as on his evidence the life of an accused was hanging in balance. Due to non examination of I/O FIR, site plan, and other relevant papers in challan have not been proved. Had he been examined he could have explained the material Exhibits which were collected during the investigation and already on record. Non-examination of the investigating officer, in the present case, has very much prejudiced the case of defence and an inference can be drawn against the prosecution that the investigating officer was not produced deliberately. 16. Court while appreciating the evidence in criminal case has to see that there should be maximum evidence as compare to that in civil case. The phrase “beyond a reasonable doubt” reflects the highest standard when it comes to burden of proof in a legal trial. 16. Court while appreciating the evidence in criminal case has to see that there should be maximum evidence as compare to that in civil case. The phrase “beyond a reasonable doubt” reflects the highest standard when it comes to burden of proof in a legal trial. When a case must be proved to this standard, it means that if a reasonable person were presented with the evidence, he or she would draw the inescapable conclusion, without any doubt, that the accused was guilty of the crime. If there are doubts or alternative explanations for the evidence, this standard of proof is not met, and a conviction could not be returned. 17. In criminal administration of justice, it requires that cases must be proved beyond a reasonable doubt. For civil cases, there are usually different standards of proof that are less demanding. All the papers in the challan are required to be proved as per evidence Act, otherwise challan is only a bundle of papers without any legal value. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused, Court should not go on convicting the accused. The law does not permit the court to punish the accused on basis of moral conviction or suspicion.The burden of proof never shift, it is always on prosecution. 18. In view of what has been discussed above, I am of the considered opinion that prosecution has not proved its case beyond reasonable doubts. The judgment of conviction and order of sentence passed by court below is set aside. The appeal is accepted. Accused/appellant is acquitted of charges and he is discharged from bail bonds. Seized property, if any, be destroyed after appeal time.