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2020 DIGILAW 270 (JK)

Union Territory of Jammu and Kashmir v. Ram Kumar

2020-06-26

PUNEET GUPTA, RAJESH BINDAL

body2020
JUDGMENT Puneet Gupta, J.—The application seeking leave to file present appeal is filed against the judgment dated 31.07.2019, passed by the learned Additional Sessions Judge, Udhampur, in case No. 29/Sessions titled State Vs. Ram Kumar, whereby the respondent herein has been acquitted of the charge framed against him. 2. The prosecution case before the trial court: On the information received from a reliable source by Police Station Udhampur on 25.6.2013 at about 7.00 p.m. that a female dead body is lying in a home near Old Age Home, Billan Bowli, inquest proceedings came to be initiated under Section 174 Cr.PC and preliminaries were completed. The dead body was identified by the accused Ram Kumar as that of wife, namely Suman. The F.I.R No. 238/2013 under Section 302 RPC was registered after the statements of witnesses were recorded under Section 175 Cr.PC and the opinion of the doctor was received which revealed the death of the victim due to head injury. The disclosure statement was allegedly made by Ram Kumar and consequently weapon of offence was also recovered from the rented room. On the completion of the investigation the challan under Section 302 RPC was presented before the Court of law. The charge under 302 RPC was framed against the accused who did not plead guilty and claimed trial. The prosecution examined witnesses in support of its case. The accused on the closure of prosecution evidence recorded his statement under Section 342 Cr.P.C wherein he denied the incriminating circumstances appearing in the prosecution evidence. No evidence in defence was produced. 3. The case is based upon circumstantial evidence as there is no eye witness to the alleged killing of the victim. The disclosure statement made by the accused is the mainstay of the prosecution case. The prosecution has examined number of witnesses in support of its case and the trial Court has by its detailed judgment did not find the case of the prosecution worthy of convicting the accused. The disclosure statement made by the accused is the mainstay of the prosecution case. The prosecution has examined number of witnesses in support of its case and the trial Court has by its detailed judgment did not find the case of the prosecution worthy of convicting the accused. The prosecution has examined PW-1 Ashok Kumar who claimed to be putting up as a tenant in the house of Jagdish Kumar and stated that on 26.03.2013 he saw the accused and the deceased having a fight which continued till midnight and found the door of the house as locked in the morning but during cross-examination he has not remained consistent with his statement and demolished the case of the prosecution as he failed to support the statement recorded under Section 164-A Cr.PC which related to his residing in the house of Jagdish Kumar. He even failed to state whether the deceased and accused were residing jointly or separately. He was even arrested as per his statement and released after his statement under Section 164-A Cr.PC was recorded. The trial Court has rightly observed that his statement loses credibility as it cannot be ruled out that he made the statement under Section 164-A Cr.PC under police compulsion in order to save himself in the case. 4. The other statements analyzed by the trial Court are of PW-6 Geeta Devi, ex-landlady of the accused, who saw dead-body in the room of the accused but not knowing if dead-body was of the victim, PW-10 Surinder Kumar and PW-11 Suresh Kumar are ex-landlords of the accused. PW-10 speaks of cordial relations between the deceased and the accused. It is to be noticed that PW-11 is a blind person who was the landlord where the accused along with his wife once resided and has stated that there were six-seven tenants along with their families residing in the house. The couple used to have arguments and he ousted the couple from the house. The statements of these witnesses do not bring out any circumstance which can link the accused with the commission of offence. 5. The disclosure statement allegedly made by the accused which led to the recovery of weapon of offence-Hoe (bongdi)-has also been critically analyzed by the trial Court. PW-8 Chet Ram has deposed that on 25.06.2013 a dead body was found inside the tin shed at Billan Bowli and PW-13 Mohd. 5. The disclosure statement allegedly made by the accused which led to the recovery of weapon of offence-Hoe (bongdi)-has also been critically analyzed by the trial Court. PW-8 Chet Ram has deposed that on 25.06.2013 a dead body was found inside the tin shed at Billan Bowli and PW-13 Mohd. Fareed ASI recovered one Hoe which was given to SHO. PW-13 Mohd. Fareed who conducted inquest proceedings has deposed that on 25.06.2013 he inspected the spot and seized the dead body. The weapon was recovered from the corner of the room having dimension of 10 feet x 8 feet. The trial Court has held that probably weapon of offence was recovered on the very day of recovery of the dead body and the Court has held so for the reason that it is the case of the prosecution that the door of the room was broke open and the dead-body of the deceased was recovered on 25.06.2013 and later the weapon of offence was recovered from the room in which murder was committed. The trial Court has rightly questioned what prevented the I/O from seizing the weapon then and there from the room where the dead-body was lying and the statement of PW-8 that the weapon was recovered on the very date of the recovery of the body gets probablized. The trial Court has relied upon case titled Thimma Alias Thimma Raju vs. State of Mysore ( AIR 1971 SC 1871 ) and case titled K Chinnaswamy vs. State of Andhra Pradesh ( AIR 1962 SC 1788 ) in the context of the recovery of the weapon. The statement of PW Sabd-e-Gul who is also witness to the alleged disclosure statement and recovery of the weapon of offence can be read in the light of the finding given by the trial court on the basis of discussion made above. Not only that, PW 7 Tarsem Kumar has deposed that the police questioned the accused about the place where the weapon was kept to which he had replied to the same of the place and later the weapon was seized by the police. In cross-examination he has stated that the police told him of the statement of the accused and also informed of the recovery of the weapon. The witness was not re-examined to contradict his earlier part of the statement. In cross-examination he has stated that the police told him of the statement of the accused and also informed of the recovery of the weapon. The witness was not re-examined to contradict his earlier part of the statement. The statement of the I.O. Deepak Jasrotia also gets knocked out on that score who also speaks of recovery of weapon of offence on 19.8.2013 after fourteen days of interrogation from 07.8.2013 to 19.8.2013. In any case, the information leading to the recovery of weapon of offence on the behest of the accused can be one of the links in the chain of proof and other links have to be established to bring home the guilt of the accused beyond shadow of doubt which the prosecution failed to prove. 6. The other factor that could be proved by the prosecution is to rely upon the theory of ‘last seen’ together of the victim and the accused in the room prior to the occurrence. The trial Court has held after taking into consideration factual aspects of the case that the same is not proved by the prosecution. PW-1 has already been disbelieved as his statement has been detailed out in the earlier part of the order. There is not iota of evidence on this facet of the case. 7. The opinion of the doctor cannot by itself prove any incriminating factor against the accused unless the attending circumstances make out a case against the accused in a credible manner. PW-12 Dr. Vinod Kumar, Medical Officer posted at DistrictHospital, Udhampur has conducted post-mortem and issued a certificate EXTP-15 and has opined that the deceased had died due to severe head injury. The weapon of offence was not ever produced by the police for his opinion in the case. All that can be culled out from the statement of the doctor is that the victim had a head injury. Nothing more can be read into the statement of the doctor for cementing the case of the prosecution. 8. The trial court has also mentioned that there is no evidence on record to prove the strained relationship between the victim and the accused to the extent which could show the motive of the accused to kill the wife. The statements of other witnesses are more or less of formal nature. 9. 8. The trial court has also mentioned that there is no evidence on record to prove the strained relationship between the victim and the accused to the extent which could show the motive of the accused to kill the wife. The statements of other witnesses are more or less of formal nature. 9. In view of the fact that it is not proved by the prosecution that the accused and the victim resided together or seen immediately before the dead body of the victim was recovered, the recovery of weapon of offence having been held doubtful and motive factor missing and there is no other credible link in the chain of events which is indispensable in a case which rests upon the circumstantial evidence, the trial Court has rightly acquitted the accused. 10. Learned counsel for the applicant has failed to convince this Court that acquittal by the trial Court was based upon surmises. Looked from any angle, the judgment of the trial Court is based upon the findings which have been appreciated in right perspective and cannot be termed as perverse. No interference is called for in the judgment of the trial court. 11. The application seeking leave to appeal is dismissed, being without merit. 12. The application filed for condonation of delay in filing the appeal also stands dismissed.