Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 279 (JK)

State of J&K v. Gulail Singh

2022-05-27

DHIRAJ SINGH THAKUR, RAHUL BHARTI

body2022
JUDGMENT : Rahul Bharti, J. Heard the learned Counsel for both sides. 2. The appellant-State has come in appeal under the J&K Code of Criminal Procedure 1939 AD (Cr.P.C in short) against a judgment of acquittal dated 18.04.2013 passed on file no. 11/murder by the Court of learned Additional Sessions Judge, Doda thereby acquitting the respondent of the charge under Section 302 Ranbir Penal Code, 1939 AD. 3. The occurrence resulting in commission of the offence is of intervening night of 23rd-24th, October, 2005 in village Shori when one Hoshiyar Singh son of Prithvi Raj resident of Shelth Humbal was found done to his death with his dead body lying over a cot on the roof top of house of prosecution witness cited as PW-12 Prabhat Singh S/o Chur Singh. 4. It was this occurrence having taken place which resulted in the registration of an FIR no. 21/2005 dated 24.10.2005 recorded at 17:00 hours with the Police Station Assar, Doda. 5. Acting upon the said FIR, the investigation into the crime was undertaken by the then SHO, Police Station Assar, Doda, as being the Investigating Officer. On the basis of the investigation, the Investigating Officer (I.O in short) came forward with a conclusion that the crime was committed by the respondent by hitting the deceased Hoshiyar Singh on his head with a blow of kulhari so forcefully that axe of it remained stuck in the skull of the crime victim Hoshiyar Singh and the respondent had made an escape from the place of occurrence of the crime. 6. The version drawn by the IO about the commission of said crime was based upon his investigation based upon version of the witnesses, both ocular and related. The version which came to be stated in the police challan is to the effect that the respondent and the deceased Hoshiyar Singh were friends and used to tend their livestock i.e., sheep and goats. Deceased Hoshiyar Singh was alleged to have illicit relationship with the wife of the respondent. Upon knowing said fact, the respondent had come to nurse ill-will towards the deceased Hoshiyar Singh which resulted in straining the relationship between the two making the respondent on look out for an opportunity to give vent to his feeling of vengeance. 7. Deceased Hoshiyar Singh was alleged to have illicit relationship with the wife of the respondent. Upon knowing said fact, the respondent had come to nurse ill-will towards the deceased Hoshiyar Singh which resulted in straining the relationship between the two making the respondent on look out for an opportunity to give vent to his feeling of vengeance. 7. As per said version, on coming to learn that on 23.10.2005 that the deceased Hoshiyar Singh was sleeping along with prosecution witness PW-1 Mohinder Singh on the roof top of residential house of prosecution witness PW-12 Prabhat Singh, the respondent had gone to the house of the prosecution witness PW-2 Narain Singh in search of weapon of offence i.e., Kulhari on the pretext of making sticks which was given by said PW-2 Narain Singh found from the heap of firewood lying in the verandah of adjoining house of PW-12 Prabhat Singh. Upon getting said kulhari, the respondent had gone away to carry out the act of putting the deceased Hoshiyar Singh to death by inflicting Kulhari blow on the left side of his forehead while a deceased Hoshiyar Singh and PW-1 Mohinder Singh were lying asleep on the roof top of the house of PW-12 Prabhat Singh. A blow of Kulhari being so strong that the axe part of the Kulhari had stayed struck in forehead of the deceased Hoshiyar Singh. 8. To set up the aforesaid version of the crime, the IO had proceeded on examination of the witnesses under Section 161 Cr.P.C. The chronology in which the IO had come to examine the witnesses acquainted with the crime occurrence is that on 24.10.2005 and 25.10.2005 PW-7 Prithvi Raj was examined by the IO. PW-8 Sansar Singh was examined on 24.10.2005 and 27.10.2005, PW-12 Prabhat Singh was examined on 24.10.2005 and 12.11.2005, PW-9 Lehar Singh on 24.10.2005, PW-13 Jagdish Singh on 24.10.2005, PW-4 Dev Raj on 24.10.2005, 25.10.2005 and 27.10.2005, PW-11 Rattan Singh on 24.10.2005 and 25.10.2005, PW-10 Chander Prakash on 24.10.2005, PW-2 Narain Singh on 27.10.2005, PW-1 Mohinder Singh on 27.10.2005, PW-5 Gulab Singh on 28.10.2005, PW-6 Om Parkash on 28.10.2005. The mentioning of dates of examination is important as the trial court has referred to the same in its judgment to find and expose the serious lacunae of the investigation. 9. The mentioning of dates of examination is important as the trial court has referred to the same in its judgment to find and expose the serious lacunae of the investigation. 9. It was on the basis of the version gathered by his examination of the said persons as witnesses under Section 161 Cr.P.C that the IO had come to narrate that the deceased Hoshiyar Singh was done to his death while sleeping at the time intervening 23-24.10.2005 on the roof top of house of PW-12 Prabhat Singh. At the relevant point of time along with the deceased Hoshiyar Singh, PW-1 Mohinder Singh son of PW-12 Prabhat Singh was also sleeping on the same very roof top and, as such, PW-1 Mohinder Singh was an eye witness to the occurrence. 10. Upon his investigation, the IO had found that before committing the crime at the time and place so mentioned, the respondent had first gone in the mid-hours of 23rd-24th October, 2005 to the adjoining house of PW-2 Narain Singh looking for kulhari and said prosecution witness had guided him to the place of stockpile of firewood in which the said kulhari was kept, upon taking which the respondent had left the place. Next morning said PW-2 Narain Singh had come to know that the murder of Hoshiyar Singh on the roof top of the house of PW-12 Prabhat Singh had taken place with the use of kulhari which being the same as taken by the respondent on being shown by the PW-2 who was then not sure to what for the same was being desired by the respondent. In order to feed the support to said version, the IO had examined PW-12 Prabhat Singh the owner of the house on the roof top of which said occurrence had taken place and whose son PW-1 Mohinder Singh was said to be sleeping alongside the victim Hoshiyar at the time of murderous attack carried out by the respondent . In order to show after occurrence conduct of the respondent, the I.O officer had come across prosecution witnesses PW-4 Dev Raj, PW-5 Gulab Singh and PW-6 Om Parkash to know from them that the said prosecution witnesses while they were on their way to the house of the deceased Hoshiyar Singh they had seen the respondent on run. 11. After completing all the ancillary incidental and supplementary work, the Police (Report) Challan no. 11. After completing all the ancillary incidental and supplementary work, the Police (Report) Challan no. 20/05 dated 11/12/2005 under Section 302 RPC came to be prepared and presented by the Police Station, Doda through its SHO in which thirty six prosecution witnesses were cited accompanied with documentary evidence concerning the investigation work. 12. The trial of the case had commenced in the Court of learned Additional Sessions Judge, Doda in which examination of thirty eight number of prosecution witnesses took place plus exhibits of documents came to be effected. The respondent also came to examine in his defence witness Shadi Lal. 13. The trial court upon carrying out a very extensive and intensive examination of the facts and circumstances put forth on file as evidence in the case came to the conclusion firstly that the motive, alleged for respondent in carrying out the murderous attack on the victim Hoshiyar Singh centered upon the theory of illicit relationship of the victim Hoshiyar with the wife of the respondent and also some pre-existing issue and earlier scuffles in connection with the arrangement of Ramleela arranged in the village 2/3 years ago before the date of occurrence between the respondent and victim Hoshiyar Singh coupled with some issues on the missing livestock of victim Hoshiyar Singh and money mattes, was not at all proved by any stretch of appreciation of the evidence so led by the prosecution in the form of PW-8 Sansar Singh, PW-20 Parshotam Singh, PW-21 Joginder Singh, PW-22 Rajinder Singh, PW-23 Rashpal Singh, PW-24 Hoshyar Singh, PW-25 Rasal Singh and PW-26- Jagdish Singh most of whom were examined as hostile witnesses and PW-27 Rajni Devi and PW-28 Nirmala Devi both of whom being Police Constable examined to prove illicit relationship motive. 14. In so far as about the incidence of the commission of crime as alleged and sought to be proved against the respondent-accused, the trial court has held that the prosecution version has not able to hold its ground on account of the inherent and staring inconsistencies and incongruities. 15. 14. In so far as about the incidence of the commission of crime as alleged and sought to be proved against the respondent-accused, the trial court has held that the prosecution version has not able to hold its ground on account of the inherent and staring inconsistencies and incongruities. 15. The trial court of learned Additional Sessions Judge, Doda came up with the finding that PW-1 Mohinder Singh who was said to be sleeping alongside the deceased Hoshiyar Singh at the roof top of PW-12 Prabhat Singh’s house i.e. father of said PW-1 Mohinder Singh had not seen anyone hitting the deceased Hoshiyar Singh with a kulhari which otherwise was the examination statement under Section 161 Cr.P.C of the PW-1 Mohinder Singh. Without confronting the text and context of his said 161 Cr.P.C examination statement in which PW-1 Mohinder Singh had purportedly mentioned about seeing the respondent-accused inflicting the blow of kulhari on the head of the deceased Hoshiyar Singh, the PW-1 Mohinder Singh was declared hostile without first setting up in the course of his examination in chief as to how he was trying to overturn from his earlier version given during the course of investigation. Thus, the PW-1 Mohinder Singh, about whom the I.O intended it to be believed that he i.e., PW-1 Mohinder Singh was not only sleeping alongside the victim Hoshiyar Singh on the roof top of the house at the time of occurrence of the crime but having seen the said crime taking place as well, was found to be failing the case of the prosecution despite being one of the two eye witnesses cited in the case. The trial court has found out that the presence of the respondent at the place of occurrence of crime was not proved. The trial Court also found out that PW-2 Narain Singh, who otherwise was very crucial witness as per the script of the police case set up in the Challan, was not even examined by the IO on the very day of the occurrence of the crime even when the IO had reached there at 1 p.m. for carrying out the investigation. The trail Court was not able to fetch an answer to the question as to why most important witness related to the crime that is PW-1 Mohinder Singh and PW-2 Narain Singh were not examined on the very day of the crime incident for investigation of which the IO had reached the place on the same very date that is 24/10/2005 at 1 p.m. onwards along with team of police personals of Police Station Assar. The trial court has returned a finding that the story of the respondent having committed the crime came into known only after 3-4 days thereafter and not on the very day of the offence meaning thereby the version of the Investigation that the PW-1 Mohinder Singh and PW-2 Narain Singh were the very first persons to know about the crime being done by the respondent was not true. The trial Court has also found out that the assertion of the Investigation that after committing the crime the respondent was seen running away from the side of the PW-12 Prabhat Singh’s house was unfounded as the three prosecution witnesses PW-4 Dev Raj, PW-6 Om Parkash and PW-5 Gulab Singh had not deposed to the said effect in the witness box. As to the post arrest conduct of the respondent, after being arrested on 1/11/2005, in terms of his Disclosure Statement as to recovery of blood stained sweater of the respondent, the trial Court has returned a finding that the PW-5 Gulab Singh examined as witness to the Disclosure Memo has stated that the same was not made by the respondent in his presence. As to the forensic part of the evidence on the file of the case is concerned the trial court has come up with the finding that the blood group found on the sweater of the respondent could not be determined to relate it with the blood group A on the axe, shirt of the deceased Hoshiyar Singh and the mattress on the cot. 16. The sum total of the appraisal and appreciation of the case against the respondent made by the Trial Court is that the case was based upon a faulty investigation and deficient prosecution failing the accusation against the respondent. 17. 16. The sum total of the appraisal and appreciation of the case against the respondent made by the Trial Court is that the case was based upon a faulty investigation and deficient prosecution failing the accusation against the respondent. 17. We have done the reading of the statements of the prosecution witnesses examined, gone through the exhibits and also perused the appreciation of the evidence made by the trial court and find ourselves fully convinced without any scope for a divergence from the appraisal of the case and appreciation of the evidence made by the learned trial court. In fact, the very Memo of Appeal in assailing the judgment of acquittal filed by the appellant-State would reveal that the Prosecution was not able to pick up and point out in the memo of appeal any single aspect of the judgment upon which the trial court could be said to have gone wrong or fell in an error. In the face of the findings of the trial Court against the case of the Prosecution, the only averment in the memo of appeal is that the same are against facts and laws of the case as the trial court has not properly appreciated the evidence on record and ignored the material witness. Thus without laboring in exposition, the appellant-State is seeking just a reverse of the judgment of acquittal to conviction without referring as which aspect of the case as dealt with and delved into by the trial court in its judgment is of compelling and substantial nature as to warrant the judgment of conviction in the case. Once the appellant-State acting through its Prosecution establishment has not been able to put up and plead its case in the present appeal against the acquittal of the respondent there is no basis for use to indulge in a self search mode to craft a case for the appellant-State against the impugned judgment. A Criminal Court, be it a trial court or an appellate court, goes where the evidence on the record in the case leads to which in the present case leads to the miserable failure of the prosecution’s case against the respondent. 18. We therefore find no merit whatsoever in the appeal against the judgment dated 18/04/2013 of the Court of learned Add. Sessions Judge Doda on file no. 11/Murder titled State versus Gulail Singh and dismiss the same. 18. We therefore find no merit whatsoever in the appeal against the judgment dated 18/04/2013 of the Court of learned Add. Sessions Judge Doda on file no. 11/Murder titled State versus Gulail Singh and dismiss the same. Record of the trial court be sent back.