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2022 DIGILAW 418 (JK)

State of J&K v. Suram Chand

2022-08-29

PANKAJ MITHAL, RAJNESH OSWAL

body2022
JUDGMENT : RAJNESH OSWAL, J. 1. This appeal arises out of the judgment dated 30.10.2010 passed by the learned Sessions Judge, Reasi (hereinafter to be referred as the trial court) in file No. 46/Session, titled, “State vs. Suran Chand and others” for commission of offences under Sections 302, 342 and 34 RPC in FIR No. 43/2008 of Police Station, Mahore, by virtue of which the respondents have been acquitted of the charges for commission of the aforesaid offences. 2. The appeal has been filed only on the ground that the learned trial court has not appreciated the evidence led by the prosecution in its right perspective and acquitted the respondents, particularly when the prosecution had successfully proved the case against the respondents. 3. Mr. R. S. Jamwal, learned AAG vehemently argued that there was abundant evidence on record that warranted the conviction of the respondents but the learned trial court has wrongly acquitted the respondents. 4. Heard and perused the record. 5. The prosecution story as it emerges from the charge sheet is that on 17.05.2008, a written complaint was filed before the Police Post, Arnas by Sher Singh S/o Balwant Singh stating therein that on 16.05.2008, his real sister, namely, Suglan W/o Sher Singh resident of Lower Judda, came to his house at 10/11 A.M and told him that her brother Sansar Chand, who was working as a labourer at Katra had come to her house in the evening and had dinner over there. After having meals, when they were about to sleep, her elder brother-in-law Suram Chand called Sansar Chand to his house and started demanding Rs. 5,000/- from him. On refusal by her brother to pay the money, due to past enmity, Suram Chand along with his brothers, Prem Singh and Bhalmesh Singh assaulted her brother with lathies. When he raised the alarm, Suram Chand tied her brother’s hands and legs with a rope. After hearing noise, she and her husband reached on spot and stopped them from acting in such a manner but they did not pay any heed. Suram Chand was about to kill her brother. On hearing this, he along with his sister went to the house of Suram Chand and saw that his brother had been confined and tied by Suram Chand in his house, whose neck and arm were broken and was struggling for his life. Suram Chand was about to kill her brother. On hearing this, he along with his sister went to the house of Suram Chand and saw that his brother had been confined and tied by Suram Chand in his house, whose neck and arm were broken and was struggling for his life. The accused, in order to extract money from his brother, severely assaulted him thereby attempting to kill him. 6. On receipt of the application, entry vide report No. 11 dated 17.05.2008 was made in Daily Diary and the copy of the same was sent to Police Station for registration of the case and as such, the FIR bearing No. 43/2008 under Sections 307, 342, 323 and 34 RPC was registered against the respondents.The investigation was handed over to Sunil Kumar-Sub Inspector. He came on spot, prepared the site plan and shifted the injured to the hospital in an unconscious condition. Sansar Chand was referred to SDH, Reasi but he succumbed to his injuries on 17.05.2008 and the offence under section 302 RPC was added. The post-mortem of the deceased was conducted and the seizure of the blood stained wearing apparels of the deceased was made and dead body was handed over to the legal heirs of the deceased for performance of last rites. Investigating Officer also seized the blood stained and unstained clay, recorded the statements of prosecution witnesses under section 161 Cr.P.C. and those of the material witnesses under section 164-A Cr.P.C and arrested the accused/respondents. The Investigating Officer also made the recovery of the weapons of offence i.e. lathi and rope on the basis of disclosure made by the respondent-Suram Chand. 7. During investigation, it was found that the deceased Sansar Chand was working as a labourer at Katra and on 15.05.2008 when he returned from Katra and was going to his house, he stayed in his sister’s house i.e. Suglan Devi. He had dinner in the house of his sister and when they were about to sleep, the elder brother-in-law of the sister of the complainant, who is residing adjacent to the house of the sister of the deceased called him to his house and when he went there, the accused along with his brothers, demanded Rs. He had dinner in the house of his sister and when they were about to sleep, the elder brother-in-law of the sister of the complainant, who is residing adjacent to the house of the sister of the deceased called him to his house and when he went there, the accused along with his brothers, demanded Rs. 5000/- from him for the purchase of ponies and told him that after purchasing the ponies, they will return the money and when he refused, the accused with common criminal intention confined him in their house from 15/16.05.2008 to 17.05.2008, tied his arms and legs with rope, assaulted him severely, prohibited others from rescuing him from there. On 17.05.2008, the deceased in an unconscious state was shifted to Arnas by the Investigating Officer but he succumbed to his injuries on 17.05.2008. The Investigating Officer proved the offence under sections 302, 342 and 34 RPC against the respondents. The charge sheet was filed before the JMIC Munsiff, Mahore and the same was committed to the learned trial court. The learned trial court vide order dated 10.09.2008 framed the charges for commission of offences under sections 302, 342 and 34 RPC against the respondents. As the respondents did not plead guilty, the prosecution was directed to lead evidence. The prosecution has cited as many as 15 witnesses out of which the prosecution examined only 10 witnesses. The respondents did not lead evidence in defence. 8. In order to examine the validity of the judgment, it is necessary to have a brief resume of the relevant portion of the prosecution evidence. 9. PW-1, Sher Singh (complainant) stated that on 16.05.2008 his sister came to his house and told him that her brother Sansar Chand, who was working as a labourer in Katra was going to his house. Since house of the deceased was situated far away, the accused Suram Chand asked him to stay with him at his house. Thereafter he went to the house of Suram Chand that night. Suglan Devi went to house of Suram Chand to meet her brother and found that Suram Chand was demanding Rs. 5,000/- from him and on his refusal, Suram Chand threatened him. Suram Chand tied him with the rope and confined him in his house. The other accused were also there and the deceased was beaten with lathies and legs. Suglan Devi went to house of Suram Chand to meet her brother and found that Suram Chand was demanding Rs. 5,000/- from him and on his refusal, Suram Chand threatened him. Suram Chand tied him with the rope and confined him in his house. The other accused were also there and the deceased was beaten with lathies and legs. He went there and tried to stop the respondents but they refused. Thereafter, he called Abdul Haq, Abdul Majid, Abdul Hamid, Pritam Singh and Kamal Singh on spot, who saw the deceased but the accused/respondents did not stop. He started his journey to Police Post, Arnas and reached there on 17.05.2008 and got an application (ExTP-1/1) written from a shopkeeper and submitted the same to the Police. The deceased was brought to Arnas Hospital from where he was referred to Reasi Hospital. He saw the dead body of the deceased at Reasi. Police seized the dead body vide seizure memo i.e.ExTP1/2, the sample of blood vide seizure memo i.e. Ext-P1/3, blood stained clothes vide seizure memo i.e. ExTP 1/4 and lathi as well. During cross-examination, he stated that Suglan had come to him on 16.05.2008 at 11 AM in the morning and he went along with her to the house of the accused and reached there at 2.30 to 3.00 PM. The deceased had received injuries before they reached there. Suglan Devi had narrated about the incident. He had also gone there and had seen him there. He did not accompany the police, however, Suglan was present. 10. PW-2 Suglan Devi, who is sister of the complainant and the deceased, was declared hostile. She stated that the deceased had come to her house and had taken meals in the evening. Thereafter, he asked her that he has to go to his house but she requested her not to go, as it was late but he did not pay any heed to her request and went ahead. After going ahead few steps, he had a fall and died. He was brought back to her house by some persons of the locality but since no male person was in the house, so the deceased was kept in the house till morning. She was cross-examined by learned Public Prosecutor but no incriminating material could be extracted. 11. After going ahead few steps, he had a fall and died. He was brought back to her house by some persons of the locality but since no male person was in the house, so the deceased was kept in the house till morning. She was cross-examined by learned Public Prosecutor but no incriminating material could be extracted. 11. PW-4 Sher Singh, PW-5 Abdul Majid, PW-7 Makhan Ram, PW-10 Abdul Rashid and PW-11 Kunj Lal were declared hostile as they did not support the prosecution case. In cross-examination also, no incriminating material against the accused has been extracted by the learned Public Prosecutor. 12. PW-6 Abdul Haq was given up by the learned Public Prosecutor. 13. PW-3 Babu Ram has stated that he knows the respondents and deceased Sansar Chand, who died on 15th Jeth of year, 2008. He was killed by the respondents. He (witness) used to work at a road in Katra along with Kashmiri workers. After completing his work, he went to his room that was taken by him from Hanief. It was dark. He heard the noise from the house of Suram Chand, whose house was just opposite to his room. He saw the deceased going to the house of Suram Chand one day prior to the occurrence. He enquired from Hanief about the cause of noise and he replied that it was daily routine. He took up bucket and went for taking water from the spring that was situated near the house of Suram Chand and he kept the bucket there and went to the house of the Suram Chand and found that the accused had tied Sansar Chand and were assaulting him. He saw the same from outside. He called the accused but they remained silent. The sister of the deceased was married in the house of the respondents and she along with her husband was also there. Thereafter, he went away. On the second day of occurrence, he informed the brother of the deceased. On 17.05.2008, he heard that the deceased has died. During cross examination, he stated that there is distance of 100 ft between the house of Suram Chand and Hanief and there is a nallah in between them. He had not gone to the house of Suram Chand-respondent No. 1 and had come back from the way. The deceased was being beaten by the respondents in their courtyard. During cross examination, he stated that there is distance of 100 ft between the house of Suram Chand and Hanief and there is a nallah in between them. He had not gone to the house of Suram Chand-respondent No. 1 and had come back from the way. The deceased was being beaten by the respondents in their courtyard. He did not go near the deceased and also did not talk to him but he called the respondents. The deceased had not stayed in the house of the accused for the night. Perhaps he had stayed for night in his sister’s house. He had not seen the deceased going to the house of the accused on the day of occurrence. He had not accompanied the deceased to Reasi but he had seen dead body of the deceased in Arnas. Deceased expired on 16/17 of May, 2008 but he does not have any personal knowledge about the same. 14. PW-8 Raj Kumar stated that Sansar Chand was his younger brother and Suglan was his younger sister. Her husband’s name is Sher Singh. He and Sansar Chand (deceased) were working in Katra. After working for six months in Katra, his younger brother came at Judda. He was having one suit, one Nokia Mobile with sim card and Rs. 15,000/-. On 14.05.2008, he reached at Judda and on 17.05.2008, he came to know from his elder brother Sher Singh that deceased has been killed by Suram Chand and his brothers. He also saw the dead body of the deceased, whose neck had been broken and leg was fractured. Police came thereafter, they took the dead body in their custody and also the blood-stained clothes. The seizure memos were prepared. He also signed the same. The memos ExP-P1/2 to ExTP-P1/4 are true and correct along with receipt of the dead body ExPW/9DR. In cross examination, he stated that he has not seen the occurrence himself. 15. PW-9 Des Raj stated that he knows the deceased, who was working as labourer with him at Katra. One year ago, when the deceased had come to Juddaat his sister’s home, he was in Katra. Next day, he went to the house of the deceased, where brother of the deceased told him that his brother Sansar Chand has been killed by the respondents. One year ago, when the deceased had come to Juddaat his sister’s home, he was in Katra. Next day, he went to the house of the deceased, where brother of the deceased told him that his brother Sansar Chand has been killed by the respondents. The dead body of the deceased was given to Sher Singh, brother of the deceased as per receipt (ExTPW9 DR). In cross examination, he stated that he was having his house at Dhanore. He had heard about the death of the deceased at Judda and had not seen the occurrence himself. 16. PW-12 Dr. Ashwani Kumar stated that he was posted as PHC Arnas and has examined Sansar Chand in respect of his injuries vide MLC No. 39 dated 17.05.2008. The detail of injuries found on the person of deceased has been given by him in his report which bears his seal and signatures. The injured was brought to casualty in an injured condition of shock. He was referred to Reasi hospital for surgical management. He has also given an opinion about the weapon of offence which possibly could have been used. The certificate about the weapon of offence i.e wooden stick also bears his seal and signature (ExTP-12/2). In cross examination, he stated that at the time of examination of injured, the weapon of offence was not shown to him, neither any rope and nor any cotton cloth was shown to him. One of the injuries found on the person of the injured was a big hematoma on left parietal region but he has not given dimension of this hematoma. No injury found on the mastoid region of the injured. He has not mentioned in the report as to what kind of shock, the injured was in. The injured was unconscious. There was no mention of presence of any blood on abrasion and bruises of injured. There was no blood on the weapon of offence shown to him. 17. PW-13 Dr. Pooja in her deposition stated that on 18.05.2008 while she was posted as Assistant Surgeon, District Hospital, Reasi, the dead body of Sansar Chand was brought before her for conducting post mortem through Police Post Arnas at 11.45 AM. On examination, she found the following injuries on the dead body. A big hematoma over temporal and mastoid region of skull and abrasion over both wrists as per the certificate of post-mortem (ExTW-13). On examination, she found the following injuries on the dead body. A big hematoma over temporal and mastoid region of skull and abrasion over both wrists as per the certificate of post-mortem (ExTW-13). According to her opinion, the deceased must have died due to head injuries leading to internal bleeding which could be possible by lathi blow, if inflicted forcibly. In cross examination, she stated that if a person falls on a hard surface, the injury could be possible. The Police of Police Station, Arnas had collected the post- mortem report. The deceased could have survived, if timely treated. 18. PW-14 Sunil Sharma, Investigating Officer stated that on 17.05.2008, an application was filed by Sher Singh for registration of the case and on that basis, FIR was registered. The Police went on spot and deceased was shifted to Reasi hospital, who was struggling for life and was not in a position to speak. Thereafter, he was referred to Jammu and while being taken to Jammu, he died on the way. After post-mortem, the dead body was handed over to legal representatives of the deceased for performance of his last rites. The respondents were taken into custody and on 27.05.2008, a lathi was recovered at the instance of Suram Chand and the statement of complainant and his sister Suglan were recorded under section 164-A Cr.P.C on 07.06.2008 and as per investigation, a case under section 302, 342 and 34 RPC was proved against the accused. He admitted the documents such as receipt of dead body, seizure memo, site plan, seizure memo of clothes, search memo, personal search memo etc. those were exhibited as ExPW-14 SK to ExPW-14 SK-XIV along with photographs. In cross-examination, he stated that he recorded the statements of PWs on 17.05.2008 itself. The injured was referred to the hospital at 4 PM. The deceased was not having any apparent injury on his body, however, his neck was having swelling and blood was coming out from his ears. The complainant had not seen the accused beating the deceased. He stated that he was informed by Suglan about the occurrence. He had not recorded the statements of the people living in the vicinity. The disclosure memo was prepared four days after the arrest of the accused on 27th May 2008 in the morning. Suglan had taken the deceased in injured condition to her house. 19. He stated that he was informed by Suglan about the occurrence. He had not recorded the statements of the people living in the vicinity. The disclosure memo was prepared four days after the arrest of the accused on 27th May 2008 in the morning. Suglan had taken the deceased in injured condition to her house. 19. The prosecution relied upon the statements of the eye witnesses, medical opinion and disclosure statement made by one of the respondent and consequent recovery of weapon of offence, in order to bring home the guilt of the respondents. So far as present case is concerned, PW-2 Suglan, PW-3 Babu Ram, PW-4 Sher Singh and PW-5 Abdul Majid have been cited as eye witnesses. So far as PW-1 is concerned, he was brother of the deceased, who lodged the report regarding occurrence on the basis of the information furnished to him by PW-2 Suglan Devi. PW-1 no doubt has proved the application on the basis of which FIR was registered by the Police but the fact remains that the information contained in the said application was supplied by PW-2 Suglan to him. As PW-2 has turned hostile and has categorically stated that she stopped her brother from proceeding to his house as it was already late but he went ahead and fell down, as such, he sustained injuries. In view of such statement made by PW-2, the statement made by PW-1 Sher Singh becomes meaningless. More so, PW- 14 Sunil Sharma IO has categorically stated that the complainant had not seen the occurrence. PW-4 has also not supported the prosecution story. Now, we are left with the statement of PW-3 Babu Ram only, who claimed to be an eyewitness. PW-3 Babu Ram stated that he went to bring water from the spring situated near the house of Suram Chand and he went to the house of Suram Chand and found that the respondents were beating the deceased but at the same time in cross examination, he stated that he did not go to the house of Suram Chand but he shouted at them but they kept silent. He also stated that the deceased died on 16/17.05.2008 at Reasi Hospital but he does not have any personal knowledge of the same. The perusal of site plan i.e. ExPW-14 SK reveals that the deceased was beaten in the room marked as “A”. He also stated that the deceased died on 16/17.05.2008 at Reasi Hospital but he does not have any personal knowledge of the same. The perusal of site plan i.e. ExPW-14 SK reveals that the deceased was beaten in the room marked as “A”. It belies the testimony of PW-3 Babu Ram that the deceased was being beaten by the accused in the courtyard. No doubt the conviction can be recorded on the basis of solitary statement of eyewitness but the statement of such witness has to be trustworthy and must inspire confidence but rather we find that the statement of PW-3 Babu Ram is vague as he has not stated as to how the deceased was being beaten and tied by which accused. More so, his conduct is also unnatural. Had he been an eyewitness and seen the occurrence himself, he would have reported the matter to the Police immediately but he has not done so and rather on the next day of the occurrence, he informs PW-1 Sher Singh. As such, we are of the considered view that the testimony of PW-3 Babu Ram is not trustworthy and his statement cannot be relied upon. 20. Another vital aspect of the matter that requires to be considered is that as per the prosecution story the respondents were demanding money from the deceased but no money has been recovered either from the body of the deceased or from the respondents. This also casts a doubt upon the prosecution story. Last but not the least, even the disclosure statement with regard to the weapon of offence- Stick & rope and consequent recovery has not been proved by the prosecution. 21. In an appeal against the acquittal, the interference is warranted only when there is perversity in the judgment. The Appellate Court is expected to satisfy itself whether the decision of the trial court is both possible and plausible in view of the evidence led by the parties and if the answer is in affirmative, then the interference is not warranted as the presumption of innocence gets strengthened by the acquittal. We have gone through the judgment passed by the trial court and the trial court has rightly not relied upon the statement of PW-3 as his testimony does not inspire confidence being vague in nature and also his conduct being unnatural. We have gone through the judgment passed by the trial court and the trial court has rightly not relied upon the statement of PW-3 as his testimony does not inspire confidence being vague in nature and also his conduct being unnatural. Learned trial court has rightly appreciated the evidence and we do not find any reason whatsoever to take a view other than that of the trial court. 22. In view of all what has been discussed above, the present appeal is found to be devoid of merits, as such, the same is dismissed.