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2017 DIGILAW 886 (JK)

Sonam Dorjay v. State

2017-09-26

ALI MOHD.MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : Badar Durrez Ahmed, J. Cr. Appl. No. 05/2014: 1. The present appeal is directed against the Judgment dated 17.09.2012 and order on sentence dated 18.09.2012 pronounced by the Principal Sessions Judge, Leh (Ladakh) in connection with FIR No. 26/2002. By virtue of the impugned judgment the appellant has been convicted under Section 302 RPC for having committed the murder of Tashi Namgyal and his wife Mst. Potshi Dolma and has been sentenced for life imprisonment by virtue of the order dated 18.09.2012. The said incident is supposed to have occurred in the night between 4th and 5th March, 2002 in the house of the deceased couple who were tenants of PW-1, Tsering Tundup. The facts relevant for the purpose of considering this appeal are that Tashi Namgyal and his wife Potshi Dolma were found dead in the premises on 07.03.2002. Both died due to strangulation. This is an admitted fact. Tashi Namgyal's body was found lying on the cot and Potshi Dolma's body was found hanging from the sealing. The doctor, PW-9 (Dr. Iqbal Ahmad), who conducted the autopsy was of the opinion that both the deaths were caused by asphyxia. Therefore, there is no denial that the deceased died due to strangulation. However, the doctor was of the view that it cannot be said as to who died first. In the opinion of the doctor Tashi Namgyal's death could not have been a case of suicide and was clearly a case of homicide. However, in so far as Potshi Dolma's case is concerned, her death could be suicidal. Of course he also remarked in his cross-examination that Potshi Dolma had an ante-mortem injuries, inasmuch as, one of her ribs had been fractured. 2. The case of the prosecution was that the appellant was a habitual thief and that with the intention of committing theft he entered the premises in which the deceased couple was residing on the night intervening the 4th and 5th March, 2002. In order to fulfill his intention of his theft, the appellant committed the murder of the deceased by strangulating them. Thereafter, according to the prosecution, the appellant left the premises and locked the same from outside. 3. In order to fulfill his intention of his theft, the appellant committed the murder of the deceased by strangulating them. Thereafter, according to the prosecution, the appellant left the premises and locked the same from outside. 3. The prosecution case also rests heavily on a purported disclosure statement (Exhibit-PW 4/3) which the appellant is said to have made on 26.09.2002 in connection with another case when he was arrested and was in the police station. As per the alleged disclosure statement, the appellant is said to have stated that he had concealed a pair of shoes underneath a tree in an orchard and he had concealed a bag under his bed in his house. It is the case of the prosecution that, both, the pair of shoes and the bag, were recovered from the places indicated by the appellant. The prosecution also relies heavily on foot prints outside the house of the deceased of which a plaster of paris mould was taken and was submitted to the Forensic Science Laboratory for its scientific report. Finger prints were also allegedly lifted from the lock outside the house, a liquor bottle inside the house and an empty glass. However, the report of the Forensic Science Laboratory with regard to these finger prints were that the same were in a very smudged condition and in any event did not bear any resemblance with the finger prints of the appellant. In so far as the foot prints are concerned, it appears that the report of the Forensic Science Laboratory was that the same resembled the foot prints of the left shoe of the pair of the shoes which had been allegedly recovered at the behest of the appellant. 4. The prosecution had also attempted to rely on the evidence of a witness who allegedly had last seen the deceased and the appellant together. However, the trial court, and in our view rightly, rejected the contention of the prosecution and held the said evidence as to be not proved. Therefore, we need not dwell on this aspect particularly because the learned counsel for the respondents has not raised this issue before us and, rightly so. 5. However, the trial court, and in our view rightly, rejected the contention of the prosecution and held the said evidence as to be not proved. Therefore, we need not dwell on this aspect particularly because the learned counsel for the respondents has not raised this issue before us and, rightly so. 5. As mentioned in the impugned judgment the entire prosecution case is solely based upon (1) the alleged disclosure statement of the appellant; (2) foot prints outside the house of the deceased and (3) the fact that the house was locked from outside. 6. On examining the entire evidence of all the witnesses and upon hearing the arguments of the counsel for the parties, the only thing that has come to the fore, is that, even if the disclosure statement is to be believed, a pair of shoes were recovered at the instance of the appellant and a bag was also recovered at his instance. We must also note that the alleged recovery of the shoes and the bag was six months subsequent to the date of occurrence. The shoes were placed beneath a tree in an orchard which was open to public access. The bag was allegedly kept by the appellant in his own house. The immediate question that comes to mind is that the appellant who is imputed with the intention of committing a theft and has with that motive also committed the murder of two individuals, has only come away with a pair of shoes and a bag. This appears to be completely disproportional to the magnitude of the crime which he is alleged to have committed. 7. It is also worth noting that the plaster of paris mould of the foot print which was sent for examination to the Forensic Science Laboratory indicated that it bore a resemblance with the left shoe of the pair of shoes which were recovered. It is not the case of the prosecution that this pair of shoes belonged to the appellant. Therefore, the presence of foot marks outside the house of the deceased relating to the said pair of shoes does not in any way connect the appellant with the commission of the murder, particularly when the alleged recovery itself is suspect. 8. Apart from this the prosecution story appears to be highly improbable. It is extremely difficult for an individual to strangulate two persons simultaneously. 8. Apart from this the prosecution story appears to be highly improbable. It is extremely difficult for an individual to strangulate two persons simultaneously. And, if he cannot not do so, then it is obvious that while he is strangulating one, the other person would definitely attack him. There is no evidence of such an incident having taken place. The reasons for the deaths of the deceased are still in the realm of mystery. But one thing is clear that the case put up by the prosecution, albeit on the basis of circumstances, has not been established. 9. The trial court has gone completely wrong in basing its conviction on the so called disclosure statement. It is also gone wrong in assuming that the foot prints were of the accused whereas in evidence it has come that the foot print matched the left shoe which was allegedly recovered and which allegedly belonged to Tashi Namgyal. Even as per the prosecution case the pair of shoes did not belong to the appellant. The trial court has also gone wrong in concluding that after strangulating the deceased the appellant locked the premises from outside. There is no evidence to support this conclusion. 10. In a case of circumstantial evidence the chain of pieces of evidence must be so inextricably linked as to lead to only one conclusion and that is to the guilt of the accused. Even if there is a minor missing link there would be enough reason not to convict the accused. In the present case, however, the circumstances themselves have not been established and, therefore, there was no question of convicting the appellant. Resultantly, the conviction and the order on sentence are set aside. The appellant is directed to be released forthwith unless he is in custody in some other case. Cr. Ref. No. 07/2012 In view of the fact that we have set-aside the order of conviction and order on sentence in the connected appeal being Cr. Appeal No. 05/2015, this Criminal Reference is accordingly disposed of as there does not survive any conviction or sentence which requires confirmation by this Court.