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2017 DIGILAW 710 (JK)

State Of J&K v. Suresh Kumar

2017-08-22

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. In this intra court appeal, the appellant has assailed the validity of the judgment dated 26.11.2002 by which the respondents have been acquitted of offences under Sections 302/120-B/201/498-A RPC. 2. The prosecution story in a nutshell is that on 19.07.1998, father of the deceased Anju Devi has submitted information in the police station that his daughter has died in suspicious circumstances. Thereupon, the proceedings under Section 174 Cr.P.C. were initiated and the statements of witnesses acquainted with the facts were recorded under Section 175 of the CrPC. Thereafter, on 24.07.1998, the complainant, namely, Suram Chand, father of the deceased lodged a written report in Police Station Bhaderwah stating that his daughter Anju Devi who was married to accused Suresh Kumar four years ago and was issueless, therefore, the accused Suresh Kumar and other members of his family used to beat her and level false allegations against her. It was further stated in the report that on 19.07.1998, accused Mool Raj, father of the complainant son in law came to the house of the complainant and informed that the daughter of the complainant had died and asked to accompany him. It was stated in the complaint that the complainant saw injury marks on the throat of the deceased which were apparently of rope and complainant had reasons to believe that his daughter was killed by the respondents by throttling and also by giving severe beating by son in law, Suresh Kumar and his family members. On the basis of the aforesaid written report, the first information report for offences under Sections 302/109 of RPC was registered against the respondents and statements of witnesses under Section 161 Cr.PC were recorded. The police after completion of the investigation filed the charge sheet against the respondents. 3. The prosecution in order to prove its case examined as many as 15 witnesses and also produced documentary evidence as well as articles. The respondents have examined five witnesses in their defense. The trial Court vide impugned judgment acquitted the respondents of the offences alleged against them. 4. Learned AAG for the appellant submitted that from the perusal of the opinion of the doctor, namely, Zia Shokat Mughal, it is evident that the case of death of the deceased was homicidal in nature. It is further submitted that the prosecution by leading cogent evidence had proved the motive of the murder. 4. Learned AAG for the appellant submitted that from the perusal of the opinion of the doctor, namely, Zia Shokat Mughal, it is evident that the case of death of the deceased was homicidal in nature. It is further submitted that the prosecution by leading cogent evidence had proved the motive of the murder. It is further submitted that father in law of the deceased had an extra marital relation with his elder daughter in law of which the deceased was aware and therefore with a view to save the honour of the family, the deceased was killed by the respondents. It is further submitted that from the statement of Kunta Devi PW2, the extra judicial confession was duly proved which ought to have been taken into account by the trial Court. Lastly, it is urged that the trial Court has failed to appreciate the evidence on record in its correct perspective which has resulted in the erroneous findings and consequent judgment. 5. We have considered the submissions made by learned counsel for the parties and have perused the record. It is pertinent to mention here that proceeding under Section 174 CrPC was initiated on 19.07.1998 and was conducted till 24.07.1998. Till 24.07.1998, the police did not make any request for registration of the case as was the statutory obligation of the police authorities to get registered the case, in case the police were satisfied of the commission of offence. The need for registration of the case was felt when the father of the deceased on 24.07.1998 made a complaint and thereafter his statement under Section 175 CrPC was recorded. It is pertinent to mention here that in the statement recorded under Section 175 CrPC, the father of the deceased neither stated the names of the respondents nor named any eye witness when according to the prosecution case, he was having full knowledge from his wife Kunta Devi and other members of the family who have been later on cited as eye witnesses. The father of the deceased namely PW-1, Suram Chand ought to have disclosed the names of the respondents in his statement under Section 175 CrPC as well as names of the eye witnesses to the incident and the complainant had not named the respondents in his statement under Section 175 CrPC. 6. The father of the deceased namely PW-1, Suram Chand ought to have disclosed the names of the respondents in his statement under Section 175 CrPC as well as names of the eye witnesses to the incident and the complainant had not named the respondents in his statement under Section 175 CrPC. 6. The witness namely Kartar Singh, Bansi Lal, Kanta Devi in their statement recorded in the proceeding under Section 174 CrPC have not named the respondents whereas in their statement under Section 161 of the CrPC, they have named the accused persons. It is also pertinent to mention here that the copy of the first information report was sent to the Magistrate on 26.07.1998, that is, more than two days of the registration of the case whereas the distance of the police station and that of Magistrate is only ten minutes walk and this fact has to be proved by the prosecution like any other fact. 7. PW-1, Kartar Chand is the real brother of the complainant Suram Chand who stated that he along with PW- Mool Chand in the morning were going to the Oil Extraction Machine for grinding mustard for extraction of oil when they on their way near the house of the accused Suresh Kumar, they heard cries. They wanted to enter the house, however, the door was closed. They looked inside the window pane which was broken and saw that deceased, Anju Devi was lying on the bed and the accused persons were sitting nearby. They asked for the opening of the door, however, the door was opened after half an hour. It does not appeal to logic that for half an hour when the aforesaid witnesses peeped through the window that the crime was committed, they did not raise any alarm and chose to remain silent for half an hour which merely indicates that they were not eye witnesses to the occurrence and later on they have been planted as eye witnesses. This fact is also supported from the fact that when their statement was recorded on 31.07.1998, they did not speak anything about the incident. Similarly, the factum of incident is missing from their statement recorded under Section 175 of the CrPC. This fact is also supported from the fact that when their statement was recorded on 31.07.1998, they did not speak anything about the incident. Similarly, the factum of incident is missing from their statement recorded under Section 175 of the CrPC. The other eye witness Mool Chand who is cited to be an eye witness is the real cousin of the complainant, has been declared hostile and nothing incriminating could be elicited by the prosecution even from his cross examination. 8. PW-kartar has admitted that Suresh kumar has made disclosure statement regarding rope but his statement is not corroborated by PW-Mool Chand. Moreover, PW-Suram Chand complainant stated that the rope present in the Court was common type and was earlier seized in the house of the accused Suresh Kumar when the dead body of his daughter was taken from Suigawari to the hospital. PW-Kunta Devi mother of the deceased has stated about the relationship of the deceased with her husband, father in law and other family members. The aforesaid witness in cross examination has admitted that deceased was suffering from Jaundice 10/12 days prior to the occurrence and she used to remain tense and that she was issueless. She has further stated that she has told the police authority that the accused Mool Raj confessed before her that deceased has been murdered but she could not explain as to why the police did not record this fact in her statement. 9. From the careful scrutiny of the material available on record, it is evident that the occurrence had taken place in the night intervening 18th and 19th of July, 1998 and the written report was lodged by the complainant Suram Chand on 24.07.1998. The proceeding under Section 174 Cr.PC were conducted for a period from 19.07.1998 to 24.07.1998 and till 24.07.1998 as stated supra, the police did not make any request for registration of the case. So far as the evidence of Dr. Zia Showkat Mughal is concerned, in cross examination, the aforesaid witness has stated that no blood was oozing from the nose and mouth of the deceased at the time of autopsy of the deceased which means that the death has occurred instantaneously. On the aforesaid evidence, the trial Court has come to the conclusion that the cause of death was hanging and the deceased must have committed the suicide by hanging. On the aforesaid evidence, the trial Court has come to the conclusion that the cause of death was hanging and the deceased must have committed the suicide by hanging. At this stage, it is pertinent to take note of the defense witness Sita Devi who in her statement before the Court had stated that deceased Anju Devi was given bath and thereafter was taken for funeral. Before funeral was performed, father of the deceased protested and the dead body was taken to Doda hospital for autopsy. This explains the fact as to why the blood was not oozing out from the nose and mouth of the deceased at the time of autopsy. 10. The prosecution has also relied upon circumstantial evidence. However, it is well settled in law that chain of circumstantial evidence should be complete so as to bring home guilt to the respondents. In the instant case, the trial Court on the basis of meticulous appreciation of evidence on record has held that the testimony of the prosecution witnesses through which we have gone, does not inspire confidence and is not reliable from various angles. Accordingly, the Trial Court has come to the conclusion that the prosecution has even failed to prove the circumstantial evidence against the respondents. 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 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 a 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.