Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 680 (JK)

State of J&K v. Lakhshman Dass

2017-08-19

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. This acquittal appeal has been filed against the judgment dated 16.10.2002 passed by the learned trial Court by which respondent has been acquitted of the offence under Section 302 RPC. 2. The prosecution story in nut shell is that the complainant, Om Parkash Inspector 31 Bn CRPF, Smailpur Transit Camp, Jammu filed a written report in Police Station, Bari Brahmna in which it was stated that on 12.06.1996 at 9.05hrs in the night, Inspector M.C.R.C. Reddy of 31st Bn CRPF transit camp, Smailpur, who was officiating as Coy Commander of E Coy of 31st Bn was shot dead by respondent, who was Constable with his service self loading rifle. The deceased was fired upon when he was present in his tent and the body of the deceased is lying in a pool of blood. It was further stated in the written report that the respondent along with weapon of offence surrendered before the complainant after commission of the crime and was taken into custody. On the basis of the aforesaid written complaint, FIR was registered for offence under Section 302 RPC. The police after completion of the investigation filed charge-sheet. The trial Court vide impugned judgment has acquitted the respondent of the offence alleged against him. 3. Learned senior AAG appearing for the appellant has submitted that the trial Court grossly erred in disbelieving the statement of eye witness namely, Om Parkash. It is further submitted that the motive of the crime was clearly established by the evidence, which was brought on record by the prosecution and the trial Court has failed to appreciate the evidence on record on its right perspective, which has resulted in erroneous findings and consequent judgment. On the other hand, learned counsel for the respondent has supported the judgment passed by the trial Court. 4. We have considered the submissions made by learned counsel for the parties and have perused the record. The prosecution has examined as many as 11 witnesses to prove its case. The prosecution mainly has relied upon the deposition of Om Parkash, alleged eye witness to the incidence, circumstantial evidence, motive as well as extra judicial confession. 5. 4. We have considered the submissions made by learned counsel for the parties and have perused the record. The prosecution has examined as many as 11 witnesses to prove its case. The prosecution mainly has relied upon the deposition of Om Parkash, alleged eye witness to the incidence, circumstantial evidence, motive as well as extra judicial confession. 5. From perusal of the evidence of PW-Om Parkash, Inspector, CRPF, it is evident that he has stated in his statement under Section 161 Cr.P.C. that he had seen the respondent committing the murder of the deceased by firing from SLR and it is also pertinent to mention here that there were three other eye witnesses to the incident, namely Bhagwan Dass, R.Margam and Chandu Lal. However, they have not been examined by the prosecution. From the evidence of Om Parkash, it is axiomatic that he has stated that he saw the accused coming out of the tent from back portion of the tent and had heard sound of the gun shot. After hearing the gun shot he went on spot. After reaching the spot, sounds of gun shots stopped and he saw Havaldar Chandu Lal and Bhagwan Dass standing. He enquired from them about the person, who fired the shots. Thereupon they told him that they do not know the person who had fired the shots. After this, he saw the respondent Lakshman Dass coming from the backside of the tent, who handed over the rifle and cartridges to him and told that he has killed the Company Commandar, M.C. Ramachandran Reddy with bullet shots for making false allegation that he has committed a theft of Rs.1000/-. After taking rifle and the cartridges in his possession the respondent was arrested. 6. In the cross-examination the aforesaid witness has deposed that his residential tent was located at a distance of 60 yards and Havaldar Chandu Lal and Naik Bhagwan Dass were standing at a distance of 3 yards from the entrance of the tent of the deceased. In the first instance, the aforesaid witness has denied the presence of R. Margam, Chandu Lal and Bhagwan Dass but afterwards admitted their presence outside the tent of the deceased. He has also even denied the fact in his statement before the Court that in his statement under Section 161 Cr. In the first instance, the aforesaid witness has denied the presence of R. Margam, Chandu Lal and Bhagwan Dass but afterwards admitted their presence outside the tent of the deceased. He has also even denied the fact in his statement before the Court that in his statement under Section 161 Cr. P.C. he has stated before the police that he along with Chandu Lal, R.R. Margam and Bhagwan Dass have seen the incident. The aforesaid fact clearly shows that the witness namely Om Parkash has not seen the accused, Lakshman Dass firing with SLR at the deceased and killing him inside the tent. Therefore, he cannot be treated as an eye witness. As stated supra, other alleged eye witnesses, though cited by the prosecution namely, Chandu Lal, Bhagwan Dass and R.R. Margam have neither been examined by the prosecution nor any explanation has been offered for their non-examination. 7. So far as the motive is concerned, the respondent allegedly told Chandu Lal, Bhagwan Dass and R.R.Margam that he had murdered the deceased as he has levelled false allegeation against him that he has made theft of Rs.1000/-. However, it is pertinent to note that the aforesaid eye witnesses, namely Chandu Lal, Bhagwan Dass and R.R.Margam have not been examined by the prosecution to corroborate and prove the motive. Similarly, in order to prove the extra judicial confession, which was allegedly made by the accused before Om Parkash in presence of Chandu Lal, Bhagwan Dass and R.R. Margam, it is noteworthy that the aforesaid three witnesses, namely Chandu Lal, Bhagwan Dass and R.R. Margam, before whom alleged confession was made by the respondent have not been examined by the prosecution. Therefore, the prosecution has failed to prove even the extrajudicial confession, allegedly made by the respondent. 8. So far as circumstantial evidence is concerned, from the statements of the prosecution witnesses, namely V.K. Sharma and N.K. Kansu, it is evident that they have stated that they heard the sounds of shots when they were in their barracks and on reaching on spot, they saw PW Om Parkash holding the respondent with one hand and SLR with other hand outside the tent of the deceased without corroboration by any other witnesses especially when material witnesses namely Chandu Lal, Bhagwan Dass and R.R. Margam have not been examined, is not sufficient to connect the respondent with the alleged offence. 9. 9. PW Naik Parbat Singh, who was incharge of the armoury of Coy E Battalion, has deposed that SLR No.15428678 was issued to the respondent along with 60 cartridges out of which 36 live cartridges have been received back and deposited on 13.06.1996 by PW Om Parkash, Inspector. In his cross-examination, the aforesaid witness has stated that he has not issued the ammunition and at the time of issuance of the arms and ammunition, its entry is made in the register. He does not remember the number of the arms and quantity of the cartridges issued to Chandu Lal, R.R. Margam and Bhagwan Dass. The record of the issuance of arms and ammunition has not been produced by the prosecution to substantiate the oral statement of PW Parbat Singh to prove the factum of issuance of arms and ammunition to the respondent. 10. It is also pertinent to mention here that no ballistic expert has been examined by the prosecution to prove that the gun shots were fired from the SLR, which was seized. In the absence of the report of ballistic expert, the respondent cannot be connected with the commission of the aforesaid offence. Thus, the prosecution has failed to prove complete chain of circumstantial evidence against the respondent so as to connect him with the alleged offence. 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 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 . 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.