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2022 DIGILAW 139 (JK)

Anand Kumar Singh v. State of J&K

2022-03-31

M.A.CHOWDHARY, SANJEEV KUMAR

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JUDGMENT : Sanjeev Kumar, J. This appeal by the appellant [‘the accused’] is directed against the judgment of conviction dated 11.08.2012 and order of sentence dated 13.08.2012 passed in File No. 233/Sessions by the learned 2nd Additional Sessions Judge, Jammu [“the trial Court”], whereby the accused has been convicted for offence punishable under Section 302 RPC and sentenced to imprisonment for life and fine of Rs. 4000/-. The order of sentence further provides that in case of default in payment of fine, the accused shall further undergo rigorous imprisonment for five months. 2. The impugned judgment of conviction and order of sentence are assailed by the accused on the ground that there has been total misappreciation of facts and misapplication of law. The trial Court has completely over looked and, in fact, has missed the gravamen of the charge and has convicted the accused without there being any eye witness to the occurrence. It is contended that the trial Court has failed to appreciate that the evidence on record was not sufficient enough to prove the charge against the accused beyond reasonable doubt. 3. The principal contention urged on behalf of the accused is that, as per the prosecution, pellets were recovered from the dead bodies of the deceased killed in the incident, whereas the gun allegedly used by the accused was designed to fire bullets only. It is, thus, submitted that the prosecution miserably failed to connect the rifle of the accused with the pellets that were found and extracted from the bodies of the deceased. This is the point which was emphasized by the learned counsel for the accused time and again during the course of arguments. 4. Before we advert to appreciate the grounds of challenge urged by the accused, we deem it proper to first allude to the prosecution case, as was projected against the accused before the trial Court. 5. On 03.04.2006, Police Station Pir Mitha, Jammu received a written complaint from HC Kailash Baitha of 4th Bn, CRPF, D-Company deployed in C. M. House Jammu. It was complained that Constable Anand Kumar Singh (the accused herein), belonging to the Company of the complainant and posted in C. M. House located at Wazarat Road, Jammu, on the basis of old enmity, caused the death of Inspector Shyam by making fire shots from his Insas Rifle. When Hav. Joginder Jha and Hav. It was complained that Constable Anand Kumar Singh (the accused herein), belonging to the Company of the complainant and posted in C. M. House located at Wazarat Road, Jammu, on the basis of old enmity, caused the death of Inspector Shyam by making fire shots from his Insas Rifle. When Hav. Joginder Jha and Hav. H. N. Pandey tried to catch him, he shot them also dead. After killing the three, he fled away from the spot along with weapon issued in his favour. The occurrence was stated to have taken place at 7.45 P.M. On the basis of the aforesaid written report, FIR No. 18/2006 for commission of offences under Section 302 RPC and 30 Arms Act was registered in the Police Station and investigation commenced by Shri Rajinder Kumar Bhardwaj, the then SHO Police Station Pir Mitha, Jammu. 6. During investigation, site plan of the place of occurrence was prepared and the place of occurrence was also photographed through the photographer of Crime Branch Jammu. The dead bodies were lifted from the place of occurrence and their custody was taken over by polikce. The Medical Officer, Government Medical College, Jammu conducted the port-mortem of all the three bodies. Worn clothes and fragments of bullets extracted from the dead bodies, handed over by the Medical Officer to the Investigating officer, were also properly seized. After the post-mortem, the dead bodies were handed over to the officials of the 4th Bn CRPF against proper receipt for last rites. The Investigating officer seized the ordinary as well as blood stainedsoil from the place of occurrence and sealed it. The accused was arrested and on his disclosure statement, weapon of offence i.e. Insas Rifle and Magazine containing four live rounds and one pouch containing two magazines, each having twenty live rounds were also recovered and seized. The blood stained clothes and one Boot (Jungle Shoe) of left foot, worn by the accused, were also seized. Packets of the seized material were got re-sealed from the Executive Magistrate and thereafter sent to FSL Jammu for chemical examination. With the help of Patwari, the site plan of the place of occurrence was also prepared. After recording the statements of the witnesses under Section 161 Cr.P.C, the accused, who was in custody, was also questioned. 7. Packets of the seized material were got re-sealed from the Executive Magistrate and thereafter sent to FSL Jammu for chemical examination. With the help of Patwari, the site plan of the place of occurrence was also prepared. After recording the statements of the witnesses under Section 161 Cr.P.C, the accused, who was in custody, was also questioned. 7. Upon completion of investigation, the Investigating officer concluded that commission of offences punishable under Section 302 RPC and Section 30 of the Arms Act by the accused were proved. He, accordingly, produced the challan before the Chief Judicial Magistrate, Jammu from where the challan was committed to the trial Court for judicial determination. 8. Vide order dated 17.07.2006 the trial Court framed charge against the accused for commission of offences punishable under Section 302 RPC and Section 30 of the Arms Act against the accused. The accused, pleading innocence, denied the charge and claimed trial. 9. With a view to sustain the charge against the accused, the prosecution examined PWs namely, Hav. Kailash Baitha, Constable Vipan Kumar, Panch Dev Yadav, Manzoor Alam, Prem Kumar Singh, Constable Shamsher Ahmed, Vijay Kumar Singh, Constable Parmodh Kumar, Parbhakar Rahu, Deputy Commander, Bhure Singh, Head Constable Pasha Bhai, Constable Ranjeet Kumar, Head Constable Mohinder Singh, Constable Pritam Kumar, Constable Ajay Kumar Singh, Hav. Rashpal Singh, Hardev Singh, Mohd. Arbi, Mohan Lal, ASI Sukhdev Singh, Ganesh Chand, Mohd. Farooq SGCT, Dharampal Tayagi, ASI Mohd. Akram, H.C. Bhagat, Deputy Director FSL, Anil Mangotra, Mool. Raj, Scientific Officer, FSL, Jammu, R. S. Jamwal, Scientific Officer FSL and Inspector Rajinder Kumar Bhardwaj (Investigating Officer). The prosecution however, gave up PW Naveen Kumar Rai, Constable N. Diko, Om Parkash, Patwari Abdul Shakoor and Surinder Kumar Thappa. On the conclusion of the prosecution evidence, the statement of the accused in terms of Section 342 Cr. P. C. was recorded. Since the accused was not acquitted in terms of Section 273 Cr. P. C., therefore, he was given option to lead the defence evidence. The accused examined Rajiv Ranjan Singh and Cont. N. Dukho as his defence witnesses. 10. Having heard learned counsel for the parties and gone through the evidence on record, the trial Court found that there was sufficient evidence connecting the accused with the commission of crime allegedly committed by him. The accused examined Rajiv Ranjan Singh and Cont. N. Dukho as his defence witnesses. 10. Having heard learned counsel for the parties and gone through the evidence on record, the trial Court found that there was sufficient evidence connecting the accused with the commission of crime allegedly committed by him. The trial Court found the following facts and circumstances conclusively established by evidence on record: (i) Motive; (ii) Direct evidence; (iii) Recovery of weapon of offence along with ammunition; (iv) Seizure of empties and fragments of cartridges/bullets. (v) Scientific evidence (FSL); and (vi) Medical Evidence. 11. The trial Court found the motive for committing the murder of Inspector Shyam fully established by the unshaken and firm statement of PW Kailash Baitha, who, in his statement had referred to a quarrel that had taken place between the accused and the deceased Joginder Jha between 3.00 P.M to 5.00 P. M. As per this witness, constable Joginder Jha reported the matter to the Company Commander, deceased Shyam Mohan. The deceased Shyam Mohan, it is stated by PW Kailash Baitha, had censured the accused. He had told the accused that he had already committed four mistakes and this time he would not spare him and would report the matter to the headquarter for initiating departmental inquiry against the accused. The deceased Shyam Mohan also told the accused that he would not sanction his leave to enable him to attend the marriage of his sister fixed for 18th. It is in the same evening at 7.45 P. M., the accused fired shots upon Inspector Shyam Mohan killing him on spot. The trial Court, on the basis of aforesaid statement of PW Kailash Baitha, concluded that warning by deceased Shyam Mohan to initiate departmental inquiry against the accused as also not to grant him leave for attending the marriage of his sister annoyed and disturbed the accused, who, with a view to teach a lesson to deceased Shyam Mohan, shot him dead. He simultaneously also shot dead H. C. Hardev Narayan Pandey and H. C. Joginder Jha on spot. With deceased Joginder Jha there was a fight of the accused during the day time as deposed by PW kailash Baitha. The deceased Joginder Jha and deceased Hardev Narayan Pandey had tried to catch the accused, which apparently became the reason for shooting both of them dead by the accused. With deceased Joginder Jha there was a fight of the accused during the day time as deposed by PW kailash Baitha. The deceased Joginder Jha and deceased Hardev Narayan Pandey had tried to catch the accused, which apparently became the reason for shooting both of them dead by the accused. The trial Court has correctly appreciated the statement of PW-Kailash Baitha and arrived at a conclusion that happening during the day i.e. quarrel between the accused and deceased Joginder Jha and subsequent scolding and warning given to the accused by deceased Shyam Mohan became the motive and reason for the accused to fire shots from his Rifle killing the three on spot. 12. Learned counsel for the appellant could not point out any short coming or failure on the part of the trial Court to appreciate the evidence that came on record in the shape of statement of PW-Kailash Baitha. 13. The trial Court has next discussed the direct evidence that was brought on record by the prosecution to connect the accused with the commission of offence. As per the trial Court, PW-Kailash Baitha, PW-Vipan Kumar and PW-Panch Dev Yadav have, in their deposition, unfolded the sequence of events leading to the occurrence. As is observed by the trial Court, PW-Panch Dev has got his presence recorded at the time of actual occurrence and is eye witness to the crime committed by the accused. He has deposed that the accused made indiscriminate fire shots upon Inspector Shyam Mohan by coming from his reae side. The witness claims that he warned the accused by saying, “stop otherwise he would be shot”. The accused did not respond in positive. The witness states that the accused did not stop but made fire shots upon Hav. Hardev Narayan Pandey also and thereafter he shot Hav. Joginder Jha dead near the mess. It has come in his statement that at the time of actual occurrence, he was on duty as Sentry of Armoury. The occurrence took place at 7.45 P.M and not 6.45 P.M as was stated by the witness in the beginning of the cross examination. On being further cross examined by the defence, the witness explains as to why he did not fire upon the accused in retaliation. He testifies that he did not fire upon the accused as there were many other constables standing nearby. On being further cross examined by the defence, the witness explains as to why he did not fire upon the accused in retaliation. He testifies that he did not fire upon the accused as there were many other constables standing nearby. PW-Panch Dev has made categoric statement that the accused made six fire shots consecutively upon Inspector Shyam Mohan. While recording his presence at the place of occurrence, the witness has clearly stated that none else was present there. Hav. Joginder Jha was shot dead near the mess by the accused. As is rightly found by the trial Court, the witness has stood strong during lengthy cross examination by the defence counsel and there appears nothing in his testimony which could be termed as major contradiction, exaggeration or serious inconsistency. His statement is further corroborated by PW Kailash Baitha, who, in his statement has deposed that he heard sound of fire shot at 7.45 P.M which occurred in front of Armoury situated in C.M. House. PW- Kailash Baitha has recorded his presence inside the recreation room. He further deposed that he again heard the sound of another fire shot and rushed to the roof by climbing the stair case. He also explains as to why he came on roof. He states that the wireless set was installed in Bunker No. 9 located on the roof. He further deposes that while he was on roof, he heard the third fire shot from the mess side. He further states that accused was abusing and searching for Hav. Vipin. When the witness came down from the roof, on enquiry, he was told by PW Panch Dev that accused had fired shots upon Inspector Shyam Mohan and Hardev Narayan Pandey. PW-Kailash Baitha has also stated that he saw the accused fleeing from the gate after occurrence. PW Kailash Baitha though has not got his presence recorded at the occurrence when the same happened but narrates the events that followed the firing of shots by the accused. PW-Kailash Baitha appears to be truthful when he says that he did not see the accused making fire shots upon the deceased and causing their death but he saw the accused fleeing from the Gate after occurrence and it was PW-Panch Dev who has actually witnessed the occurrence. 14. PW-Kailash Baitha appears to be truthful when he says that he did not see the accused making fire shots upon the deceased and causing their death but he saw the accused fleeing from the Gate after occurrence and it was PW-Panch Dev who has actually witnessed the occurrence. 14. It is in this background the trial Court finds the testimony of PW- Panch Dev supported and corroborated by PW- Kailash Baitha. PW- Vipan Kumar too has lent support to the statement of PW-Panch Dev, who, in his statement, has deposed that he also heard sound of three repeated gun shots while he was in toilet. 15. We have carefully scrutinized and analysed the statements of PW-Panch Dev and PW-Kailash Baitha as also the deposition of PW- Vipan Kumar. We are of the firm view that the statement of PW-Panch Dev, who saw the occurrence with his own eyes, cannot be disbelieved, more so, when the other witnesses like PW-Kailash Baitha and Vipan Kumar are corroborating his testimony. The trial Court has also found other incriminating circumstances lending support and corroboration to the evidence of PW Panch Dev, Kailash Baitha and Vipan Kumar. Notwithstanding minor contradictions here and there and some instances of exaggerations made by the witnesses, the prosecution has successfully proved that Gun shots were fired by the accused on the deceased in presence of PW-Panch Dev, who is supported in his testimony by the other prosecution witnesses i.e. PW-Kailash Baitha and Vipan Kumar. The statements of other prosecution witnesses, like Parbhakar Rao and Pasha Bhai also lend credence to the statement of PW-Panch Dev. 16. The trial Court has also taken the recovery of the weapon of offence i.e. Insas Rifle and other ammunition at the instance of the accused as an additional circumstance pointing to the complicity of the accused in the commission of crime in which three persons lost their lives. 17. Learned counsel for the appellant could not point out any discrepancy, infirmity or illegality either in the disclosure statement made by the accused or in the recovery of weapon of offence made at the instance of the accused. 17. Learned counsel for the appellant could not point out any discrepancy, infirmity or illegality either in the disclosure statement made by the accused or in the recovery of weapon of offence made at the instance of the accused. It has come on record that the accused was arrested on 03.04.2006 in presence of PW Sukhdev Singh and PW- Mohd Arbi while in police custody and in presence of PW- ASI Mohd Akram and SGCT Mohd Farooq the accused made a disclosure statement that he had kept one Insas Riffle with magazine containing some live rounds and a Khaki Pouch with black strips at its corners having two magazines, each filled with twenty live rounds, in the bushes abutting D.C. Office Road. He further stated during his aforesaid disclosure statement that he only had the knowledge in this regard and can get the aforesaid articles recovered. 18. The trial Court has found evidence led in this regard sufficient, cogent and consistent and, we see no reason to take a view contrary to the view taken by the trial court. The prosecution has amply proved that the INSAS Rifle which was issued to the accused and used by him in firing shots on the deceased, was hidden by him in the bushes near D.C. Office and the same was recovered pursuant to the disclosure statement made by the accused. Seizure of empties/fragments of bullets 19. As per prosecution, the Investigating Officer during investigation lifted six empties of cartridges from near the dead body of the deceased-Shyam Mohan, three from near the dead body of deceased-Hardev Narayan Pandey and two from near the dead body of deceased Joginder Jha. Seizure memos were prepared in presence of PWs Kailash Baitha and Vipan Kumar. Both have proved the seizure memos. Learned counsel for the accused has not been able to point out any discrepancy in making the seizure memos. 20. The scribe of the seizure memos, PW-Rajinder Kumar Bhardwaj, has also successfully proved the seizure of the empties of the cartridges/bullets from near the dead bodies of the deceased. 21. The doctor, who conducted the post-mortem, produced five sealed packets containing samples of blood and fragments of bullets found in the dead bodies of Inspector Shyam Mohan and Hardev Narayan Pandey and handed over them to the Investigating Officer. 21. The doctor, who conducted the post-mortem, produced five sealed packets containing samples of blood and fragments of bullets found in the dead bodies of Inspector Shyam Mohan and Hardev Narayan Pandey and handed over them to the Investigating Officer. The Investigating Officer prepared the seizure memos in presence of PWs Prabhakar Rao, Deputy Commandant and Constable Pritam Kumar. Both of them have stood by their statements and proved the seizure memo. The Investigating Officer in his statement made in the Court has stated that sample of blood and blood stained fragments were handed over to him by the doctor at mortuary room of the Government Medical College Hospital, Jammu. He has proved his signatures on EXPW-MB. The trial court has found sufficient evidence led by the prosecution with regard to seizure of fragments of bullets and sample of blood, which, after re-sealing were sent to FSL, Jammu for analysis. The FSL evidence has also come on record. The Prosecution has examined three witnesses with respect to scientific evidence. PW-R.S. Jamwal, Scientific Officer, Physics, PW-Mool Raj, Scientific Officer and PW-H.S. Bhagat, Deputy Director, FSL have been examined by the prosecution. As per PW-R.S. Jamwal, he received Insas Rifle-5.56 MM in working condition. He further states that eleven 5.56 MM x 45 MM cartridges were found to have been fired from the said rifle, and that fragments of fired bullet belong to 5.56 MM x 45 MM used in 5.56 MM Insas Rifle. He further explains during his cross-examination that if the bullet hits the boney part the body it may break into fragments. He states that he made comparison of test fired bullet with fragments of bullets and found that fragments contain the impression of barrel of weapon. 22. From the statement of PW- R.S. Jamwal recorded in the Court the trial Court found the following facts established: (i) That the weapon of offence i.e. Insas Riffle 5.56 MM was in working condition; (ii) Eleven 5.56 MM x 45 MM cartridges sent for FSL analysis were found to have been fired from the said Riffle; and (iii) That the fragments of the bullets received by the FSL were also found to be belonging to 5.56 MM x 45 MM used in 5.56 MM Insas Rifle. 23. The FSL evidence thus clearly demonstrates that the deceased were killed by the bullets fired from the seized Insas Riffle 5.56 MM. 23. The FSL evidence thus clearly demonstrates that the deceased were killed by the bullets fired from the seized Insas Riffle 5.56 MM. It has already come on record that Insas Riffle, which was sent to FSL, was the service Riffle of the accused and recovered and seized at his instance. The forensic test, thus, clearly connects the accused with the commission of crime. The trial Court has arrived at correct conclusion which is based on the evidence of experts of FSL. 24. The medical evidence has also corroborated and proved the prosecution story. 25. The trial Court, after deeply analyzing the evidence led by the prosecution as also the defence evidence led by the accused, came to the conclusion that the prosecution had succeeded in proving the commission of offence by the accused beyond reasonable doubt. The trial Court found that there was motive for commission of the crime. The direct evidence in the shape testimony of eye witness, PW-Pach Dev, supported and corroborated by PW Kailash Baitha and PW Vipan Kumar and the proof of disclosure statement and the recovery of weapon of offence made at the instance of the accused as also the expert evidence i.e. medical and scientific evidence was sufficient to connect the accused with the crime of offence with which he was charged. 26. We have already discussed the evidence on record in extenso and are of the considered opinion that the view taken by the trial Court, on the basis of the evidence on record, is the correct view and cannot be found fault with. 27. It was the argument of learned counsel for the accused that what was handed over by PW 30, the doctor who conducted the autopsy of the dead bodies, to the Investigating Officer were the pellets and not the fragments of the bullets and that pellets could not have been fired from the Insas Riffle, which can fire only the bullets. It is contended by Mr. S. C. Sharma that, in the absence of clarification coming from the prosecution witnesses, the Court must believe that what was recovered from the dead bodies of the deceased were the pellets and not the fragments of bullets. It is contended by Mr. S. C. Sharma that, in the absence of clarification coming from the prosecution witnesses, the Court must believe that what was recovered from the dead bodies of the deceased were the pellets and not the fragments of bullets. He places strong reliance upon the expression ‘Chharay’ used in the seizure memo and the statement of the Investigating Officer as also by other attesting witnesses and submits that the dictionary meaning of ‘Chharay’ is pellets and not the fragments of bullet. He further argues that once it is clearly proved that the deceased had died by pellet injuries, then the accused cannot be connected with the commission of crime, for, he was issued and was possessed of Insas Riffle which admittedly uses bullets as ammunition. 28. We have given our thoughtful consideration to this argument raised by learned counsel for the accused and do not find any substance therein. The expression ‘Chharay’ an Urdu word, is commonly used to denote both the pellets as well as the fragment of the bullet. It is true that the prosecution in the charge sheet has used the term ‘Chharay’ but that does not advance the case of defence in any manner. Whatever was recovered from the dead bodies by the Doctor during Autopsy was handed over to the Investigating officer in presence of the witnesses. It was properly sealed and sent to FSL for examination. The Insas Riffle recovered, which was the weapon issued to the accused and recovered after the occurrence from the bushes near D.C. Office, pursuant to the disclosure statement made by him, was also seized and sent separately to the FSL. The Scientific Officer, who examined seized fragments (Chharay) and the Gun has given his categoric opinion that these were the fragments of bullets fired from Insas Riffle 5.56 MM seized from the accused and sent for FSL examination. The expert witness also found the impression on the barrel of weapon and concluded that these fragments of bullets had been fired from the same Riffle. In view of such clear and catagoric evidence of the expert of FSL Jammu, there remains hardly anything to doubt about the weapon used for commission of murder of three persons. The expert witness also found the impression on the barrel of weapon and concluded that these fragments of bullets had been fired from the same Riffle. In view of such clear and catagoric evidence of the expert of FSL Jammu, there remains hardly anything to doubt about the weapon used for commission of murder of three persons. On the basis of his understanding of the term ‘Chharay’ used in the challan by the prosecution, learned counsel for the accused submits that what was put to the accused as an incriminating circumstance while recording his statement under Section 342 Cr.P.C was the pellets and not the fragments of the bullet. This has, claims the learned counsel for the accused, caused serious prejudice to the accused, who had no opportunity to tender his explanation. 29. By the parity of reasoning given above, we do not find this argument of learned counsel for the accused tenable in law. The prosecution in the instant case has proved its case by leading ocular, circumstantial and scientific evidence. The cumulative effect of these three type of evidences led by the prosecution is an irresistible conclusion that it is the accused and accused alone who has committed the gruesome cold blooded murder of three Jawans of his Battalion. Small altercation in the morning between the accused and the deceased Joginder Jha and subsequent scolding and warning by deceased Shyam Mohan in the evening, could not have been provocation enough to kill three persons by shooting them dead on spot. The accused is apparently a person of depraved mind who had least respect and care for human lives. The trial Court has rightly convicted him and sentenced him to imprisonment for life for committing the murder of three of his colleagues. Despite great persuasion by Mr. Sharma to take contrary view, we could not help concurring with the trial Court. 30. For the foregoing reasons, we find no merit in this appeal. As a result, the Appeal is, accordingly, dismissed. 31. The impugned judgment is upheld and Reference is accepted. 32. The record of the trial Court be returned.