Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 802 (JK)

State of J&K v. Guddi Devi

2017-09-05

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Aradhe, J. 1. In this criminal acquittal appeal, the appellant assailed the validity of judgment dated 09.05.2006 passed by the Trial Court by which respondent has been acquitted in respect of offences under sections 302,109 R.P.C. 2. Prosecution Story in nutshell is that on 25.10.2000 Banarsi Lal lodged a verbal report with Police Station Akhnoor in which it was stated that there is only one PHE Water tap in the village which is being used for drinking purpose by the villagers and the accused Gudi Devi does not allow the complainant to use the said tap and there is a scuffle 2-3 times previously on this issue. It was further stated that on 24.10.2000 when the parents of the complainant had gone for harvesting Bajra crop from their field and the complainant and his two sisters were at home. At about 6:00 p.m. Nisha Devi had gone for cutting grass from the field and when she was returning home, she met Suraj Parkash son of Bishamber Dass who had also gone to cut the grass and asked the sister of the complainant to help him in lifting the grass on his head. Thereupon the sister of the complainant helped him in lifting the grass which had been seen by the respondent and it was not harvest by her. As soon as Nisha Devi reached home respondent sought explanation as to why she had helped Suraj Parkash and had also beaten Nisha Devi with stone and after giving her beating went to her house. It was further stated in the complaint that his sister later on went to the house of the respondent and narrated the whole incident to her husband and then came back to her house. At 7:00 p.m. one Shosho came to the house of the Nisha Devi and asked her that her mother is calling. Thereupon Nisha Devi went with Shosho. The complainant also followed them upto some distance and kept watching his sister. The moment his sister entered the house of Bishamber Dass, respondent started abusing her and through kerosene oil on the deceased Nisha Devi and set her ablazed with a matchbox with intention to kill her. On the basis of the aforesaid complaint, FIR for the offence under section 307 R.P.C. was registered. Statement of the deceased under section 161 of Cr. P.C. was recorded. 3. On the basis of the aforesaid complaint, FIR for the offence under section 307 R.P.C. was registered. Statement of the deceased under section 161 of Cr. P.C. was recorded. 3. The deceased, Nisha Devi remained admitted in the hospital from 24.10.2000 to 31.10.2000 and expired on 01.11.2000 on account of burn injuries. Consequently, offence under section 302 R.P.C. was registered. Postmortem of the dead body was conducted and thereafter the police carried out investigation and filed the charge sheet against the respondents for the offences under sections 302/109 R.P.C. 4. Prosecution in order to prove his case examined PW1- Bishamber Dass, PW2- Banarsi Lal, PW3- Chano Devi, PW4- Babu Ram, PW5- Des Raj, PW6- Rattan Lal, PW7- Chuni Lal, PW8- Pangi, PW9- Shakti Devi, PW10- Dwarka Nath, PW11- Jyoti, PW12- Dr. C.S. Gupta, PW13- Gul Darshan Singh (Patwari), PW14- Des Raj (Naib Tehsildar), PW15- Vaishno Devi, PW16- Madan Lal, PW17- Tarsem Lal, PW18- Dr. Jagdish Singh (Asstt. Director FSL), PW19- Lal Chand Inspector Police and PW20- Krishan Lal Choudhari (ASI). 5. Respondent examined DW1- Daya Ram, DW2- Mohan Lal, DW3- Subash Chander, DW4-Bishamber and DW5-Des Raj. The Trial Court on the basis of the material available on record, acquitted the respondent of the offences alleged against her. 6. We have perused the record and heard learned counsel for the respondent. Unfortunately we did not have the assistance from learned counsel for the appellant as none has appeared on behalf of the appellant. It is pertinent to note that the entire case of the prosecution is based on circumstantial evidence. PW6-Rattan Lal, PW7- Chuni Lal, PW10- Dwarka Nath has been declared hostile by the prosecution and prosecution has failed to illicit anything incriminating against the respondent even from the cross examination. It is also pertinent to mention here that the statement of the deceased under section 161 Cr. P.C. was recorded on 25.10.2000 whereas she expired on 01.11.2000. Therefore, her statement cannot be termed as dying declaration. It is also pertinent to mention here that PW5- Des Raj and PW2-Banarsi Lal are father and brother of the deceased respectively whereas PW1-Bishamber Dass is uncle of the deceased. PW4- Babu Ram is brother-in-law of the deceased whereas PW9-Shakti Devi is the sister of the deceased, therefore their testimony has to be scrutinized carefully. 7. It is also pertinent to mention here that PW5- Des Raj and PW2-Banarsi Lal are father and brother of the deceased respectively whereas PW1-Bishamber Dass is uncle of the deceased. PW4- Babu Ram is brother-in-law of the deceased whereas PW9-Shakti Devi is the sister of the deceased, therefore their testimony has to be scrutinized carefully. 7. PW1-Bishamber Dass has stated in his evidence that when he reached on spot, he saw Nisha Devi was burning and Bishamber Dass was extinguished the fire. Respondent was stand there. However, in cross-examination, the aforesaid witness has stated that Nisha Devi had told him that the respondent had sprinkled oil on her body and set her ablaze. From the evidence of Bishamber Dass-PW1, it is evident that he is not an eye witness to the incident but the victim had told him that the respondent had sprinkled kerosene oil on her body and set her ablaze. Prosecution has also failed to prove the prominent motive as the prosecution has only tried to establish that there was a dispute between the parties with regard to PHE water tap which was located in the vicinity and there had been some quarrel between the parties. 8. It is pertinent to mention here that in the instant case, the Investigating Officer has not made any effort to produce the persons who were allegedly present at the time of burning of the victim which were apparent from the statement of Bishamber Dass that the persons from the locality namely Chuni Lal, Govind, Mohan Lal, Baldev, Sain, Badri, Hem Raj, Somi and Abay Ram. Bishamber Dass has further stated that Hansu, Bishamber, Mohan Lal, Govind, Suraj and Munshi accompanied the victim upto the hospital, even PW2-Banarsi Dass has stated that Punu Ram, Mangu and Bishamber were also present in the hospital. However, the prosecution has not produced the aforesaid witnesses who were important and best witnesses for the prosecution to prove its case. Thus, the prosecution has failed to complete the chain of circumstantial evidence to bring home the guilt to the respondent. 9. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. Thus, the prosecution has failed to complete the chain of circumstantial evidence to bring home the guilt to the respondent. 9. 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 . 10. 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.