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2019 DIGILAW 50 (JK)

State of J&K v. Vaibahav Kumar Misra

2019-02-01

GITA MITTAL, TASHI RABSTAN

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JUDGMENT : Gita Mittal, J. 1. By the instant appeal, challenge has been laid to judgment dated 2nd May, 2009 in case arising out of FIR No. 160/2006 registered at Police Station, Katra. 2. We have heard Mr. Sanchit Verma, who appears for Mr. Raman Sharma, learned Deputy Advocate General and Mr. Sachin Sharma for the respondent. The record of the trial court has also been produced before us, which has also been perused. We have given our considered thought to the submissions made before us. 3. Before examining the grounds on which challenge is laid, we may briefly note the background facts giving rise to the registration of the case by the Police of Police Station, Katra. The case of the prosecution before the trial court was that on 29th April, 2006, at around 02:10 hours, Dina Nath (P.W. 1) and Nasib Singh (P.W. 2) informed the police that on 28th April, 2006 at about 4.00 p.m., a couple namely Vishu Misra and his wife Tannu Misra residents of Kanpur (U.P.), hired a room No. 103 in Hotel Shastri Yatri Niwas, Katra. Between 1.30 to 1.45 a.m., there was noise in the said room and upon checking, both inmates i.e. Vishu Misra and Tannu Misra were found unconscious. These two persons suspected consumption of some poisonous substance by the couple and it was thought advisable to inform the police. 4. Based on this information, the police agency was set in motion and police officials who were deputed to the spot, on return, lodged a report No. 41 in the Daily Diary on 29th April, 2006. It appears that Vishu Misra and Tannu Misra, who had been found in unconscious condition, were shifted to CHC, Katra, where Tannu Misra was declared dead by the doctors while Vishu Misra was referred to Govt. Medical College, Jammu. 5. Inasmuch as, Tannu Misra had died an unnatural death, therefore, proceedings under Section 174 Cr.P.C. were initiated. The relatives of the couple were informed and postmortem was also conducted. 6. On the spot, a container with the mark QUE-PHOS/Poison containing four tablets was found which was seized. Certain vomit material lying on the floor was seized and sealed. A Duppata and a towel along with two pairs of chappal, a purse and some cosmetic items were also seized. 6. On the spot, a container with the mark QUE-PHOS/Poison containing four tablets was found which was seized. Certain vomit material lying on the floor was seized and sealed. A Duppata and a towel along with two pairs of chappal, a purse and some cosmetic items were also seized. The hotel register containing the entry at page No. 15 in the name of Man Misra on 28th April, 2006 was also seized. Telephone No. 094195736450 was found written on the wall of the room, which was found the telephone number of the father of Vishu Misra. 7. During enquiry, it was revealed that the correct name of the couple was Vaibhav Misra and Mohini Devi. 8. It was also revealed that the deceased was not wife of the Vaibhav Misra and that she stood married to one Rajesh Kumar. 9. The Viscera of the deceased was sent for chemical examination. The Forensic Science Laboratory reported that no poison was detected in the Viscera of the deceased. The doctors, who conducted postmortem, concluded that the cause of death was due to strangulation. 10. In this background, the police concluded that it was a case of murder and consequently FIR No. 160/2006 was registered under Section 302 RPC on 7th September, 2006 at Police Station, Katra. 11. After completion of the investigation, a charge sheet came to be filed by the Investigating Agency. By order dated 18th December, 2006, the trial court prima facie found commission of offence under Section 302 RPC by the accused/respondent herein and framed charges against him. The respondent pleaded not guilty and claimed trial. 12. During trial, 25 witnesses were examined by the prosecution to prove its case. The statement of the respondent was recorded under Section 342 Cr.P.C. No evidence in defence was led. After undertaking a detailed consideration, vide the judgment impugned dated 2nd May, 2009, the trial court held that the prosecution case suffers from serious infirmities and that the case was based only on suspicion without any support from the evidence led on record. As such, the trial court granted benefit of doubt to the respondent and acquitted him of the charge which was framed against him. 13. Aggrieved thereby, the State has filed the instant appeal challenging the judgment of acquittal recorded by the trial court on the ground that the trial court has failed to consider the material evidence on record. As such, the trial court granted benefit of doubt to the respondent and acquitted him of the charge which was framed against him. 13. Aggrieved thereby, the State has filed the instant appeal challenging the judgment of acquittal recorded by the trial court on the ground that the trial court has failed to consider the material evidence on record. 14. There is no direct evidence to connect the respondent with the commission of offence with which he was charged and the prosecution case rests on circumstantial evidence. 15. The prosecution has placed reliance on the circumstance of the deceased having solemnized a second marriage with the respondent on the 20th of April, 2006 and both of them having fled away from their homes. On 28th April, 2006, they visited Shri Mata Vaishno Devi Shrine and on the way back they hired the room No. 103 in Hotel Shastri Niwas at the base camp Katra. 16. The prosecution has attempted to establish the allegation that the deceased was strangulated with Duppata by the respondent. However, in this regard the trial court has considered at length the testimony of PW Dina Nath, who was owner of the Hotel Shastri Niwas, who was the first responder to the noise which he had heard emanating from room No. 103 on the night of 28th of April, 2006. This witness has categorically stated that when he knocked on the door, it was opened by the deceased Mohini Devi who was crying at that time. When he raised the query as to why she is crying, she disclosed that the couple had consumed poison. 17. Significantly, this witness has further disclosed that when the deceased opened the door the respondent was lying unconscious on the bed. The witness has categorically stated that the deceased was fully conscious till she was removed from the room to the hospital while the respondent was unconscious. In the face of this testimony, the case of the prosecution that the respondent had strangulated the deceased and thereafter consumed poison in order to cover up his guilt, falls flat on its face. 18. In the face of this testimony, the case of the prosecution that the respondent had strangulated the deceased and thereafter consumed poison in order to cover up his guilt, falls flat on its face. 18. Even otherwise, the suggestion as to the strangulation with the Duppata as being the cause of death is not supported by other witnesses whose testimonies have been recorded as none of the prosecution witnesses, who saw the deceased in the room No. 103 have noted any sign of a ligature mark around the neck. 19. The Fard Surat-e-Haal, which is the first report recorded by the police official who had reached the room at the earliest upon receiving the information about the condition of the couple, also does not mention any ligature mark on the neck of the deceased. 20. The evidence on record establishes that the deceased was fully conscious and had opened the door to Dina Nath while the respondent was lying unconscious. There is not a whit of an explanation on record as to why the respondent was not got medically examined. 21. The prosecution has overlooked yet another aspect. The statement of the deceased Mohini Devi to P.W. Dina Nath were her last words before her death referring to consumption of poison and therefore, if linked to her death, would be covered within the meaning of the expression "dying declaration" under J&K Evidence Act. 22. The investigating officer has effected no investigation with regard to the recovered bottle with label "QUE-PHOS/Poison" or the four tablets contained therein. We do not have the benefit of any chemical analysis thereof, the Viscera or body fluids of the respondent or of the deceased. 23. We may also note that the report of the chemical analysis of the Viscera of the deceased has also not been proved on the record of the trial Court. This was essential given the statement by the deceased to P.W. Dina Nath about having consumed poison. In this background, the conclusion of the learned trial court to the effect that the case of the prosecution rests on suspicion and conjectures, cannot be faulted. 24. This was essential given the statement by the deceased to P.W. Dina Nath about having consumed poison. In this background, the conclusion of the learned trial court to the effect that the case of the prosecution rests on suspicion and conjectures, cannot be faulted. 24. In the pronouncement of Supreme Court in Ram Swaroop and others v. State of Rajasthan, (2004) 13 SCC 134 , the Supreme Court observed thus:- "25.........................................................................................................It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an 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." (Emphasis supplied) 25. The above principle was reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , the Supreme Court has held as follows:- "11. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , wherein this Court observed thus: "Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused, and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference." (Emphasis supplied) 26. Again in (2009) 12 SCC 629 , Vijay Kumar v. State by Inspector of Police, Madras and another, the Supreme Court summed up the legal position as follows:- "12. The principles which have been set out in innumerable cases have been reiterated as under:- (1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction. (2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse. (3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. (4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court. (5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted. (6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box. (7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused." 27. It is thus well settled 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. 28. The judgment of the trial court and the present appeal has to be tested on these principles. 29. It is trite that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion is to be drawn should in the first instance be fully established and the circumstances should form an unbroken chain and be of such conclusive nature wherein the possibility of any person other than the accused being the author of the crime becomes impossible. 30. A heinous and serious crime has been committed in this matter in which a lady has lost her life. But the prosecution has failed to lead any reliable and credible evidence to establish chain of circumstances, let alone unbroken, in which she lost her life or that the accused-respondents are responsible for the commission of the offences. 30. A heinous and serious crime has been committed in this matter in which a lady has lost her life. But the prosecution has failed to lead any reliable and credible evidence to establish chain of circumstances, let alone unbroken, in which she lost her life or that the accused-respondents are responsible for the commission of the offences. Nothing at all is pointed out to us from the trial court record which would enable us to hold that the findings and the conclusion of the trial court judgment to the effect that the prosecution had failed to bring home the guilt of the respondent for the commission of offences were erroneous, overlooked material evidence, were contrary to the record or perverse on any count. For all these reasons we do not find any reason to interfere with the findings rendered in the judgment of the learned trial Judge. This appeal is, accordingly, dismissed.