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2020 DIGILAW 697 (JK)

State of J&K v. Kirpal Singh

2020-12-21

RAJESH BINDAL, SANJAY DHAR

body2020
JUDGMENT : SANJAY DHAR, J. 1. The applicant/State seeks leave to file appeal against the judgment dated 29.04.2017 passed by the learned Additional Sessions Judge, Kathua (hereinafter referred to as ‘the trial Court’) in File No. 11/60/55/39/Sessions whereby the non-applicants/accused Kirpal Singh, Shankri Devi, Satya Devi, Sudesh Kumari and Nirmala Devi were acquitted of the charges for offences under Sections 302/201/34 RPC. Accused Shankri Devi is stated to have died during the trial of the case. 2. In brief, the case of the prosecution is that on 06.10.2003, telephonic information was received at Police Station, Billawar that dead body of a lady namely Bimla Devi is hanging on a tree in the forest located near Bakhatpur. On receiving the information, the police swung into action, took the dead body of the deceased in their custody, got its post-mortem conducted and handed over the same to the relatives of the deceased. The police initiated inquest proceedings under Section 174 Cr.P.C. Post-mortem report of the dead body revealed that death of the deceased had occurred due to strangulation. Accordingly, FIR No. 142/2003 for offences under Sections 302/201/147 RPC was registered at Police Station, Billawar. 3. During the course of investigation, it came to fore that about 10 years back, marriage of the deceased lady was solemnised with Sagar Singh, a resident of Bakhatpur. It was found that relations between the couple were cordial, but mother-in-law of the deceased, accused Shankri Devi, her brother-in-law accused Kirpal Singh, her sisters-in-law, accused Satya Devi, Sudesh Kumari and Nirmala Devi used to harass her. It further came to surface that about four years after the marriage of the couple, the deceased lady and her husband had started residing separately from other family members, but they were deprived of their ornaments and share in the family property. It was also found that on 30.10.2003, the marriage of non-applicant/accused Kirpal Singh was scheduled and on 05.10.2003, a pre-marriage function was arranged. In that connection, all the accused had gathered at Bakhatpur. The deceased also attended the said function and during the function, ornaments of the deceased were snatched by her mother-in-law accused Shankri Devi from her. As a result of this, on 06.10.2003, a quarrel had taken place between the deceased and the accused and the same had to be settled with the intervention of the Panchayat. The deceased also attended the said function and during the function, ornaments of the deceased were snatched by her mother-in-law accused Shankri Devi from her. As a result of this, on 06.10.2003, a quarrel had taken place between the deceased and the accused and the same had to be settled with the intervention of the Panchayat. It is the further case of the prosecution that thereafter, all the accused in pursuance of a criminal conspiracy, strangulated the deceased to death. 4. After completion of investigation, challan for offences under Sections 302/201/34 RPC was laid before the trial Court. By order dated 24.03.2004, charges for offences under Sections 302/201/34 RPC were framed against the accused and their plea was recorded. The accused denied the charges and claimed trial. 5. In order to establish its case, the prosecution examined as many as 17 witnesses. The accused did not lead any evidence in defence. After hearing the learned counsels for the parties, the trial Court passed the impugned judgment thereby acquitting the non-applicants/accused. 6. We have heard Mr. Aseem Sawhney learned AAG and perused the record. 7. There is no direct evidence in the instant case and the whole case of the prosecution is based upon circumstantial evidence. It is settled law that in a case based solely upon circumstantial evidence, it is incumbent upon the prosecution to establish, beyond reasonable doubt, all the circumstances from which the conclusion of guilt is drawn and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of events. 8. In the instant case, the prosecution has based its case on the following circumstances: (i) Motive for the crime - previous enmity between the deceased and the accused. (ii) Disclosure statement (Ext-PW-5) of accused Sudesh Kumari and recovery of ornaments vide memo Ext-PW-5/1, pursuant thereto. (iii) Disclosure statement (Ext-PW-5/2) of accused Kirpal Singh and recovery of pair of plastic shoes vide memo Ext-PW-5/3 pursuant thereto. (iv) Cause of death of the deceased-strangulation. 9. In a case based upon circumstantial evidence, motive for the crime assumes great significance. In the instant case, the prosecution has alleged that there was enmity between the deceased and the accused because they had deprived the deceased and her husband of the share in the family property and the ornaments. (iv) Cause of death of the deceased-strangulation. 9. In a case based upon circumstantial evidence, motive for the crime assumes great significance. In the instant case, the prosecution has alleged that there was enmity between the deceased and the accused because they had deprived the deceased and her husband of the share in the family property and the ornaments. The witnesses to prove this circumstance PWs Sagar Singh, Des Raj, Rattan Singh and Vaishno Devi have not supported the version of the prosecution. Thus it has miserably failed to prove the motive for the crime. 10. The next circumstance that has been relied upon by the prosecutions is with regard to the recovery of ornaments on the basis of the disclosure made by accused Sudesh Kumari. PWs Mohinder Singh and Raghubir Singh are witnesses to disclosure statement Ext-PW-5 and recovery memo Ext-PW-5/1. Both these witnesses have not supported the prosecution case. Thus, neither the disclosure made by the accused Sudesh Kumari nor recovery of the ornaments pursuant thereto is established in this case. 11. The other circumstance, on which the prosecution has based its case, is with regard to the recovery of shoes on the basis of disclosure statement made by accused Kirpal Singh. PWs Mohinder Singh and Raghubir Singh are witnesses to the memo of disclosure Ext-PW-5/2 and the memo of recovery Ext-PW-5/3. PW Mohinder Singh has denied the contents of both these memos, whereas the statement of PW Raghubir Singh being contradictory in material particulars, is unworthy of credit. Thus, this circumstance is also not established from the evidence on record. 12. So far as the post-mortem report of the deceased is concerned, the same does not establish the case of prosecution that the death of the deceased was caused by strangulation. In a case of death by strangulation, the victim would normally put up some resistance which would certainly result in bruises and injuries to his/her body, whereas, in the instant case, no bruises or injuries were found on the dead body. Similarly, eyes of the victim would remain open, whereas, in the instant case, the eyes of the deceased were found closed. 13. In the aforesaid circumstances, the trial Court has rightly disbelieved the case of the prosecution and acquitted the accused of the charges framed against them. Similarly, eyes of the victim would remain open, whereas, in the instant case, the eyes of the deceased were found closed. 13. In the aforesaid circumstances, the trial Court has rightly disbelieved the case of the prosecution and acquitted the accused of the charges framed against them. The law does not allow the State to file an appeal against an order of acquittal under Section 417CrPC. The State has to seek leave to file an appeal. 14. In the instant case, we do not find any ground to interfere with the order of acquittal. The present application seeking leave to file an appeal against an order of acquittal is without any merit. The same is, accordingly, dismissed. 15. The trial Court record be sent back.