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2020 DIGILAW 269 (JK)

State of Jammu and Kashmir v. Sunil Kumar

2020-06-26

PUNEET GUPTA, RAJESH BINDAL

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Important Point—Murder of wife—No burden can be placed upon accused under Section 106 of Evidence Act in absence of any evidence that accused was present in house at the time of occurrence. Counsel for the Parties: For the Petitioner: Mr. Ravinder Gupta, AAG For the Respondent: None JUDGMENT Puneet Gupta, J.—The application seeking leave to appeal is filed against the judgment dated 31.12.2018, passed by the learned Principal Sessions Judge, Kathua in case No. 13/2015 Sessions titled ‘State v. Sunil Kumar’ whereby the respondent has been acquitted, on the ground that the judgment passed by the trial court is against law and facts of the case and that the trial court has failed to appreciate the same in its true perspective. 2. The case of the prosecution is that the accused Sunil Kumar who was suspecting the character of his wife Sanjokta Devi attacked her with a brick on the head on 09.10.2015 at about 8.30 PM. The accused did not find his wife after he was back from the work. The information to this effect was received on 09.10.2015 at about 12.15 hours at Police Station, Nagri Parole with entry No. 19 in the ‘Roznamcha Register’ and copy of the same was sent to the Police Station, Kathua whereupon FIR No. 319/2015 was registered for offence under Section 302 RPC with Police Station, Kathua. The victim was rushed to the hospital by the people in the neighborhood but she succumbed to her injuries. Incharge Police Post, Nagri Parole Vimal Indu was entrusted with the investigation. On the completion of the investigation, the accused was charge sheeted for offence under Section 302 RPC. The accused denied the charge and claimed trial. The prosecution produced evidence in support of its case. On the completion of the prosecution evidence, the statement of the accused under Secti9on 342 Cr.P.C was recorded wherein he denied the incriminating circumstances appearing in the prosecution evidence. 3. The marriage of the victim with the accused had taken place about 5/6 years ago and had one male child aged 3 years. The prosecution examined eighteen out of twenty witnesses cited in the challan. There is no direct evidence in the prosecution case and the case is thus based upon circumstantial evidence which was required to be proved by the prosecution by establishing all the links in the case. The prosecution examined eighteen out of twenty witnesses cited in the challan. There is no direct evidence in the prosecution case and the case is thus based upon circumstantial evidence which was required to be proved by the prosecution by establishing all the links in the case. The prosecution relied upon the theory of last seen, disclosure statement by the accused resulting into recovery of piece of brick allegedly used in the crime and also the motive. The trial court has discussed the relevant statements and has not dilated upon the statements of those witnesses who had turned hostile. The trial court has discussed the evidence that came on record regarding the aspect of ‘last seen’. As per judgment, PW-1 Jai Ram has turned hostile and even in cross-examination has only deposed that he went on spot after he heard a commotion and had found that the wife of the accused had a head injury. He along with others had taken the victim to the hospital at Kathua. He did not notice the accused when he reached the spot. PW-2 Parkash Chand, PW-3 Balbir Kumar, PW-4 Rajinder Singh and PW-5 Krishan Chand, who also turned hostile failed to depose the presence of the accused in the house when they visited his place nor otherwise recorded any knowledge of the involvement of the accused in the case. There was not an iota of evidence to make out that the accused was present in the house when the alleged occurrence took place. The trial court has rightly held that no burden can be placed upon the accused under Section 106 of the Evidence Act in the absence of any evidence that the accused was present in the house at the time of occurrence. 4. The prosecution also banks upon the disclosure statement made by the accused which led to the recovery of alleged weapon of offence i.e. the brick used in the occurrence. The witnesses PW-1 and PW-4 have turned hostile on this aspect as they denied that the accused made any disclosure statement in their presence or that the contents of the disclosure statement Ext P-19/6 are correct. The trial court has also discussed in detail the outcome of the statement of the Investigating Officer PW-17 Vimal Indu in the case. The witnesses PW-1 and PW-4 have turned hostile on this aspect as they denied that the accused made any disclosure statement in their presence or that the contents of the disclosure statement Ext P-19/6 are correct. The trial court has also discussed in detail the outcome of the statement of the Investigating Officer PW-17 Vimal Indu in the case. The witness has deposed about the disclosure statement and the recovery of the blood stained brick lying beneath a heap of clay in the compound of the house of the accused. The accused was arrested on 11.10.2015 and the photographs of the accused making statement were also taken on the same day. The disclosure statement Ext P 19/16 reveals that it was made on 13.10.2015 which means that the I.O had acquired the knowledge about the brick used in the crime on 11.10.2015 when the accused was arrested. Moreover, the recovery of the brick at the instance of the accused is held doubtful because of the statements of PW-1 and PW-4. 5. The reason given by the trial court for disbelieving the disclosure statement and consequently the recovery of the alleged weapon of offence is plausible and there is no reason not to agree with the same. 6. Last but not the least, the motive behind the killing of the victim by the accused is the suspecting the character of the deceased by the accused. The trial court has thrashed the statements of PW-7 Ramesh Kumar and PW-11 Vimla Devi who are parents of the deceased. They have deposed about the strained relations between the victim and the accused and that the accused used to beat the deceased on account of demand of dowry. There is no specific incident disclosed by the witnesses in support of their allegation against the accused. PW-7 in his statement has also deposed about the accused having broken the teeth of the deceased prior to two months of the occurrence as a result the witness brought the victim to her house and got her treated at Udhampur and Jammu hospitals. However, the victim was sent back on couple of occasions to her matrimonial home despite some acrimony between the husband and wife. However, the victim was sent back on couple of occasions to her matrimonial home despite some acrimony between the husband and wife. The trial court on the totality of the circumstances has rightly held that there is no evidence even remotely of any act of cruelty or harassment of the victim at the hands of the accused and to infer that the accused elected to liquidate the deceased on account of non-fulfillment of his demand of dowry. The motive part on behalf of the respondent herein also loses its ground. 7. The other witnesses are more or less formal in nature in view of the discussion made above as they relate to the seizure memos or of sealing, resealing of the material collected in the case. The prosecution has failed on all counts in proving its case against the accused beyond shadow of doubt. In fact the prosecution can be said to have failed to give wings to its case as the very crucial circumstance in the case which pertains to the theory of last seen never took off. 8. No good ground is held to be made out so as to upset the findings of the trial court whereby the accused stands acquitted. 9. The application seeking leave to appeal is held to be without merit and is dismissed. 10. The application seeking condonation of delay in filing the appeal is also dismissed.