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2021 DIGILAW 98 (JK)

State of Jammu & Kashmir v. Parshotam Kumar

2021-03-19

TASHI RABSTAN, VINOD CHATTERJI KOUL

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JUDGMENT : Koul, J. 1. Feeling aggrieved and dissatisfied with the judgment dated 23.02.2013, passed by the Additional Sessions Judge, Jammu, acquitting respondents herein, the State of J&K has preferred the instant appeal. 2. Respondents 1 to 3 were facing charge under Sections 302/498-A/34 RPC and respondent no.4 under Section 302/109/498-A RPC in case FIR No.69/2007. 3. It is worthwhile to mention here that the entire prosecution case is based on circumstantial evidence. The Supreme Court, while dealing with the cases of circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 , has held that the onus was on the prosecution to prove that the chain is complete and infirmity or lacuna in prosecution case cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, which must be fully established, which are: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 4. Adverting to the case in hand, it is seen that prosecution had tried to project three types of evidence: one in the shape of the statements of the relatives of the deceased and statements of the persons residing in the neighbourhood of deceased; second statements of Namberdar, Sodagar Mal, and Member Panchayat, Bansi Lal, and Sarpanch, Yash Pal; and third in the shape of evidence of medical expert and seizure of weapon of offence in the shape of PW Sodagar Mal, PW Bansi Lal and PW Yash Pal regarding seizure of weapon of offence i.e. rope. 5. Let the above evidence projected before the Trial court be discussed with the statements of prosecution witnesses. 6. 5. Let the above evidence projected before the Trial court be discussed with the statements of prosecution witnesses. 6. Coming to the statement of relatives, i.e., father Puran Chand, Surishta Devi, sister, PW Ghulam Hussain, PW Pushpa Devi, another sister. PW Puran Chand stated that at the time of marriage he had given the dowry to deceased as per his capacity. The relation remained cordial between deceased and respondent no.4 for 1-1/2 years and thereafter respondent no.4 started demanding dowry of Rs. 50,000/-. A case was filed before Women's Cell by deceased that respondent/accused did not pay her maintenance. Thereafter the matter got compromised and deceased along with children went to her in-law's house. During the time deceased was staying with Puran Chand, she wrote a letter to Commanding Officer that respondent, Kishori Lal, is not paying her maintenance. Kishori Lal came on leave and on the intervention of Namberdar, Sodagar Mal, member panchayat, Bansi Lal, and Sarpanch, Yash Pal, deceased along with children went along with Kishori Lal and after 3-4 days, he came to know that deceased had died. 7. Coming to the statement of PW Surishta Devi; she stated that accused demanded Motorcycle, Cooler, Fridge, Almirah and gold in the marriage. She had also narrated the fact that the deceased had sent a letter to Commanding Officer regarding the accused No.4 and the Commanding Officer on receiving the letter sent the accused, Kishori Lal on leave. Accused, Kishori Lal, came along with Namberdar and Sarpanch of the village who guaranteed regarding the behaviour of the accused, as such they sent the deceased with him. 8. PW Ghulam Hussain had stated that accused used to demand dowry from the deceased and he came to know about beating of deceased by accused because the deceased was residing in his locality, who used to tell her about this. He also stated that when the accused Kishori Lal went to take the decease back, the father of the deceased called him and he too went there, where one Panch and Namberdar were present and were asking the said Puran Chand to send the deceased to the house of the accused on their responsibility. In his cross examination he stated that the parents-in-law, brother-in-law of the deceased never beat her in his presence and accused never demanded any dowry in his presence. 9. In his cross examination he stated that the parents-in-law, brother-in-law of the deceased never beat her in his presence and accused never demanded any dowry in his presence. 9. PW Pushpa Devi, another sister of the deceased, has stated that Parshotam Kumar is the brother-in-law of the deceased. After marriage the accused used to beat the deceased and demanded dowry. She further narrated that she wrote a letter to Commanding Officer of the respondent No.4. Thereafter respondent No.4 Kishori Lal came on leave and came to the house of in laws to take the deceased back. Panch, Sarpanch and Namberdar of the area were along with him and on their guarantee father of the deceased sent the deceased back. All the accused/respondents used to ask the deceased to bring Rs. 50,000/-, which the deceased denied. So, the question arises whether the said Namberdar, Panch, and Sarpanch came with the said Kishori Lal to the house of Puran Chand to take the deceased back. In order to appreciate this evidence the prosecution had also kept the said Sodagar Mal, Bansi Lal and Yash Pal as the witnesses. The story of the prosecution is that respondent No.4 Kishori Lal went along with the Panch, Sarpanch and Namberdar to the house of Puran Chand in order to take the deceased back. Whether this fact is authenticated by the statements of said Sodagar Mal, Bansi Lal and Yash Pal, same needs to be seen and appreciated. 10. PW Sodagar Mal stated that on 14.06.2007 the deceased died; how she died he has no knowledge. He was the Namberdar of the village. Police took his signatures forcibly in the Police Station. All his signatures were obtained forcibly. He has turned hostile in the Court and in his cross examination in the court he had stated that he has not heard regarding the quarrel in respect of the accused, Kishori Lal. Nothing happened in his presence regarding any demand of dowry. 11. PW Bansi Lal has also turned hostile in the Court and stated that he has no knowledge with regard to the occurrence. He also stated that police came and he and Sodagar Mal were called and accused, Kishori Lal and Parshotam, were weeping. Nothing happened in his presence. He further stated that accused neither made any demand of dowry nor any talk of dowry took place in his presence. 12. He also stated that police came and he and Sodagar Mal were called and accused, Kishori Lal and Parshotam, were weeping. Nothing happened in his presence. He further stated that accused neither made any demand of dowry nor any talk of dowry took place in his presence. 12. Coming to PW Yash Pal Sharma, he being the Sarpanch of the village, turned hostile in the Court. He stated that he had no knowledge whether any quarrel took place between deceased and accused. No quarrel between deceased and accused took place in his presence. 13. From the statements of these witnesses, it is clear that the prosecution story and the statements of the witnesses Puran Chand, Surishta Devi, Ghulam Hussain and Pushpa Devi, are belied by the statements of these three witnesses; upon which it is alleged that they have given the surety and, on their responsibility, the said Puran Chand had sent back the deceased to the house of accused. The statement of Puran Chand, Surishta Devi, Pushpa Devi, recorded under Section 161 Cr.P.C and the FIR registered in the case clearly reflects that whatever these witnesses have stated in the Court were not in their statements given under section 161 and nothing of that sort is reflected in the FIR. The knowledge regarding demand of Rs. 50,000/- does not reflect in the under Section 161 Cr.P.C.-statements of Surishta Devi, Puran Chand, and Pushpa Devi. 14. The statement given by Surishta Devi in the Court that she had seen mustard seed in the eyes of deceased at the time of seeing the dead body of the deceased, these words were not reflected in her statement under section 161 Cr.P.C. 15. Though it is a settled law that statements of the close witnesses cannot be brushed aside simply that they are close relatives and their sole object is to see the conviction of the accused persons. It is settled law that statement of these witnesses cannot be negated but needs to be taken on precaution and with care. Though the parents and relatives are the best persons who can narrate the fact of dowry but their statements should inspire confidence. Furthermore, the statements must not look as if they are improvements and embellishments in the prosecution case. Though the parents and relatives are the best persons who can narrate the fact of dowry but their statements should inspire confidence. Furthermore, the statements must not look as if they are improvements and embellishments in the prosecution case. The statements of these witnesses, being the relatives of the deceased, clearly reflect that there are improvements and exaggeration in their statements and their statements are belied by the statements of PW Sodagar Mal, PW Yash Pal and PW Bansi Lal. 16. Coming to the next point that the string cord has been recovered on the disclosure of the accused persons. PW Sodagar Mal and PW Bansi Lal have been kept as witnesses to the said seizure. Both the witnesses have turned hostile in the Court of law. PW Sodagar Mal had stated that although the seizure memo of rope (String) bears his signature but they have been obtained forcibly against his consent. He denied the contents of memo of disclosure statement and also memo of recovery, though admits his signature on the same. Furthermore, PW Bansi Lal has also stated that the contents of seizure memo of the string are not correct and no seizure memo of rope and string was prepared in his presence. 17. Thus, from the statements of these witnesses the story of the prosecution regarding disclosure statements and recovery of the string in presence of the witnesses is dashed to ground and creates a dent in the prosecution story. 18. It is the prosecution story that the deceased was killed on 14.6.2007 and accused/respondent No.4, Kishori Lal, had left for his posting on 06.06.2007. It is also the prosecution story that accused Pooru Devi, Parshotam and Mulakh Raj killed the deceased by strangulation on 14.6.2007. It is further story of the prosecution that accused Parshotam put string in the neck of the deceased and accused Pooru Devi and Mulakh Raj caught hold of legs of the deceased. It is important to note that what is the actual source of this information to the I.O. as it is only the statement of the I.O. that reflect these things and there is no evidence regarding this. It is established thing that the deceased had died an unnatural death and it is a mystery whether the death in this case is homicidal or suicidal. 19. From the perusal of statement of Dr. It is established thing that the deceased had died an unnatural death and it is a mystery whether the death in this case is homicidal or suicidal. 19. From the perusal of statement of Dr. Vijay Kumar, it is revealed that he had given his opinion on both external and internal injuries. He had also observed the signs of violence only on neck portion but did not observe signs of violence or struggle on any body parts, which were in normal position. He only saw struggle marks on the neck. He observed in the statement that in cases of suicide there are no marks of violence on the body. He further stated that it is difficult to say whether the present case is suicidal or homicidal. Thus, from the medical point of view also it is not clear that the deceased had been murdered, as the possibility of commission of suicide done by the deceased cannot be ruled out by going through the statement of the medical witness also. 20. From the above discussion, this Court is of the opinion that guilt of the accused persons charged with the crime has not been proved beyond any shadow of doubt against respondents/accused persons, as the chain of evidence in the case of circumstantial evidence must be complete and conclusive so as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. 21. The law on the subject is well settled. The scope of interference as regards acquittals recorded by the Trial Court has been discussed and decided by the Apex Court in the case of "Sambhaji Hindurao Deshmukh v. State of Maharashtra," reported in (2008) 11 SCC 186 . It was held: “13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra [ (1978) 4 SCC 371 : 1979 SCC (Cri) 1], Babu v. State of U.P. [ (1983) 2 SCC 21 : 1983 SCC (Cri) 332], Awadhesh v. State of M.P. [ (1988) 2 SCC 557 : 1988 SCC (Cri) 361], Thanedar Singh v. State of M.P. [ (2002) 1 SCC 487 : 2002 SCC (Cri) 153] and State of Rajasthan v. Raja Ram [ (2003) 8 SCC 180 : 2003 SCC (Cri) 1965]).” 22. From the above it is derivable that while the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the Trial Court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the Trial Court, which were the basis for the acquittal and that the High Court has to give due importance to the conclusions of the Trial Court, if they had been arrived at after proper appreciation of the evidence. It also emerges that the High Court will interfere in appeals against acquittals, only where the Trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. 23. When we peruse the testimony of prosecution witnesses, we do not find them to have, in any manner, established the prosecution case. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was involved in commission of offences charged against him. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that the accused was involved in commission of offences charged against him. Our opinion is based on complete appreciation of testimonies of prosecution witnesses. 24. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they stand charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established, leading only to one conclusion, i.e., guilt of the accused. 25. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the Trial Court. The Court has fully appreciated the evidence so placed on record by the prosecution. The accused has had the advantage of having been acquitted by the Trial Court. It cannot be said that the Trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. 26. Copy be sent down along with Trial Court record.