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2022 DIGILAW 553 (JK)

State of Jammu & Kashmir v. Pyar Singh

2022-10-07

RAJESH SEKHRI, RAJNESH OSWAL

body2022
JUDGMENT Rajnesh Oswal, J. - The present appeal has been preferred by the appellant against the judgment dated 22.08.2016 passed by the learned Principal Sessions Judge, Reasi (hereinafter to be referred as the trial court) in file No. 60/Sessions titled, State of J & K vs. Pyar Singh for commission of offence under section 302 RPC arising out of FIR No. 145/2011 of Police Station, Reasi, whereby the respondent has been acquitted of the charge for commission of offence mentioned above. The judgment has been impugned on the ground that the learned trial court has not appreciated the evidence in its right perspective. 2. Mr. R.S. Jamwal, learned AAG appearing for the appellant vehemently argued that the prosecution has proved the circumstances beyond the reasonable doubt against the respondent but still the learned trial court has acquitted the respondent by wrongly appreciating the evidence. 3. Heard and perused the record. 4. The prosecution story is that on 09.09.2011, the son of the deceased, namely, Pyar Singh submitted an application in Urdu with Police Station, Reasi that his father, namely, Karnail Singh was running a meat shop and he used to return to home daily. On 08.09.2011, his father went to the hotel in the morning but did not return in the evening. At around 8.15 PM in the morning, he went to the hotel and found that the shutter of the hotel was closed but there was no lock. He opened the shutter, went inside and found his father-Karnail Singh lying dead on the floor and blood was scattered on the floor. On the basis of this report, FIR bearing No. 145/2011 (supra) was registered and investigation was handed over to SHO-Jatinder Singh Sambyal. He went to the place of occurrence and prepared the site plan of the occurrence. He also got conducted the photography of the dead body and took the dead body in his possession. Blood was taken from the place of occurrence and was sealed. Post-mortem of the dead body of the deceased was conducted and clothes of the deceased were also seized. The accused was arrested on the basis of identification parade conducted by the Executive Magistrate 1st Class through PWs Rakesh Kumar, Joginder Paul. During investigation, it came to the fore that on 08.09.2011 at 7/7.15 PM, the accused/respondent came to the hotel (dhaba) of the deceased and demanded food. The accused was arrested on the basis of identification parade conducted by the Executive Magistrate 1st Class through PWs Rakesh Kumar, Joginder Paul. During investigation, it came to the fore that on 08.09.2011 at 7/7.15 PM, the accused/respondent came to the hotel (dhaba) of the deceased and demanded food. However, the deceased denied the same. Upon this, the accused went away by abusing the deceased. At about 9.45 PM, the accused again went to the hotel of deceased when he was all alone and all the adjoining shops were closed. The accused inflicted two brickbat blows on the back side of the head of deceased, as a result of which, the deceased fell down. Thereafter, the accused throttled the deceased and killed him. The accused made the disclosure statement with regard to the piece of brick and thereafter recovery was made pursuant to the disclosure statement. In the investigation, it also transpired that after commission of murder, the accused stayed at Hotel Suraj Palace in night and next day, he stayed in Chenab Guest House, Reasi. The offence under section 302 RPC was established against the accused. Accordingly, the charge-sheet for the commission of offence under section 302 RPC was presented in the court of Chief Judicial Magistrate, Reasi and the same was committed to the trial court. Vide order dated 27.01.2012, the charge for commission of offence under section 302 RPC was framed against the respondent. The respondent did not plead guilty and the prosecution was directed to lead evidence. There are 23 witnesses cited by the prosecution and 21 witnesses have been examined by the prosecution. 5. In order to appreciate the evidence on record, it is necessary to have a brief resume of the prosecution evidence. 6. PW-1 Pyar Singh (son of the accused) has proved the application filed by him with concerned Police Station with regard to the fact that his father went to hotel but did not return back and thereafter, he found the dead body of his father in the hotel. He proved the application filed by him for registering the FIR. 7. PW-2 Chatter Singh proved the receipt of the dead body. He was declared hostile and during cross examination also, no incriminating material has been extracted from him. 8. PW-3 Gafoor Ahmed proved the seizure memo of the dead body. 9. PW-4 Onkar Singh proved the receipt of the dead body. 10. 7. PW-2 Chatter Singh proved the receipt of the dead body. He was declared hostile and during cross examination also, no incriminating material has been extracted from him. 8. PW-3 Gafoor Ahmed proved the seizure memo of the dead body. 9. PW-4 Onkar Singh proved the receipt of the dead body. 10. PW-5 Kartar Singh proved the seizure memo of the clothes of the deceased and also the receipt of the dead body. 11. PW-6 Mohd. Sadiq proved the site plan prepared by him. 12. PW-7 Rakesh Kumar stated that his shop was situated adjacent to the shop of the deceased. At 7.30 PM last year, when he was closing his shop accused came in drunken condition and demanded food from the deceased. As the deceased refused, the accused went away. Thereafter, he also went away after closing his shop. The Police called him in the Tehsil Office and he identified the accused. He identified the accused amongst 10/12 boys in the Tehsil office. During cross examination, he stated that he saw the accused for the first time when he came for food to the shop of deceased and he had not seen him prior to it. When the accused came there, 2/3 other persons were also sitting. When he closed the shop and went away, 2/3 persons were still sitting in the shop of deceased. Those persons were not seen by him in the Tehsil Office. The Police called him in the Police Station. Police showed the accused to him in the Police Station when he was arrested. He was shown 4/5 days prior to going to Tehsil office. He saw the accused for a short period of time in the hotel of the deceased. 13. PW-8 Joginder Kumar Bali stated that on 08.09.2011, he had come for having food in the hotel of the deceased at bus stand Reasi. The accused had also come there and demanded meat on credit, which was refused by the deceased and upon it, he went away and he also went away. He expressed ignorance as to what happened after that. He was called by the Tehsildar. The Police got conducted the identification parade of the accused before Tehsildar. He was asked to identify the person who came for food. He identified the accused amongst the 4/5 persons. He expressed ignorance as to what happened after that. He was called by the Tehsildar. The Police got conducted the identification parade of the accused before Tehsildar. He was asked to identify the person who came for food. He identified the accused amongst the 4/5 persons. During cross examination, he stated that when he went for having food in the shop of the deceased, there were 3-4 more persons sitting in the shop and eating. He does not know those persons. When the accused went away, no conversation took place between the deceased and the accused and he left the shop 7.30 PM. At that time, 3-4 persons were having food in the hotel of the deceased. He was not called by the Police in the Police Station, but he on his own went in the Police Station to see the accused. 14. PW-9 Amit Sharma stated that on 08.09.2011, a person namely, Pyar Singh came to his hotel-Suraj Palace for stay. An entry to this effect has been made in the Register. PW Vinod Kumar is the manager of the hotel. Police seized the Register from them. During cross examination, he stated that there are entries which are blank. The entries are usually made by the customers and their signatures are obtained. At serial No. 428, signatures of Pyar Singh (accused) are not there. At the time of making the entry, he was not present in the hotel. 15. PW-10 Vinod Kumar stated that he knew the accused by face as he stayed in his hotel-Suraj Palace. On 08.09.2011, the accused came to his hotel for a room and an entry was made in the Register. An entry has been made by him in the name of the accused. The Register was seized by the Police. He identified the signatures on the seizure memo. During cross examination, he stated that an entry was made by him in the name of accused. The accused did not put signature in the entry Register as he stated that he was illiterate. The thumb impression of such person is obtained. He did not know the accused prior to 8th of September. The Police got identification parade of the accused in the Tehsil Office. 16. The accused did not put signature in the entry Register as he stated that he was illiterate. The thumb impression of such person is obtained. He did not know the accused prior to 8th of September. The Police got identification parade of the accused in the Tehsil Office. 16. PW-11 Prithvi Singh was witness to the disclosure memo and recovery memo but he was declared hostile and during cross examination, no incriminating material could be extracted from him against the respondent. 17. PW-12 Sham Singh was witness to the disclosure and recovery memo but has not deposed anything against the respondent. 18. PW-13 Romesh Mengi stated that as per entry at serial No. 95 of page of 89 in the Register, the accused stayed in the hotel Chenab on 09.09.2011. The entry was not made by him. However, it was made by Sanjay Abrol. He proved the seizure memo in this regard. During cross examination, he stated that he cannot say about other person as the entry is made in the name of one person. The entry is neither in his handwriting nor was made in his presence. 19. PW-14 Sanjay Abrol proved the seizure memo of the Register. He stated that an entry was made on 09.08.2011 with respect to Pyar Singh (accused) but the same is not in his handwriting. The accused was accompanied with a child. In cross examination, he stated that he has no knowledge in whose handwriting that entry was made. 20. PW-15 Baldev Singh and PW-16 Reyaz Ahmed are Police officials and have deposed in same manner about the recovery of the blood stained clothes from the room at Katra, which was occupied by the accused. Reyaz stated that he has no knowledge as to who was residing in the said room. 21. PW-17 Munshi Ram, Naib Tehsildar stated that in his presence, the accused was identified by Vinod Kumar. In three rounds/occasions, the accused Pyar Singh was identified. He prepared the documents. 22. PW-18 Prithvi Singh Naib Tehsildar stated that he conducted the identification parade of the accused in the Tehsil Office Reasi. The accused was identified by the persons brought by the Police. The Police also made other persons to stand with the accused. In this regard, documents were prepared. The accused was identified by Rakesh Kumar and by Joginder Kumar Bali. 23. PW-20 Dr. The accused was identified by the persons brought by the Police. The Police also made other persons to stand with the accused. In this regard, documents were prepared. The accused was identified by Rakesh Kumar and by Joginder Kumar Bali. 23. PW-20 Dr. Harbinder Singh proved the post-mortem report and as per the post-mortem, the cause of death was asphyxia due to manual strangulation i.e. due to throttling. He proved the certificate with regard to the weapon of offence i.e. the brick. During cross examination, he stated that injury Nos. 1 and 2 could be possible due to fall on some pointed object. There were marks of violence all over the neck. In case of strangulation by rope or chain, there will be ligature mark around the neck and there is less possibility of the rupture of neck muscles. 24. PW-21 Dr. Mohan Atri (B Grade Surgeon) has also deposed in similar manner as that of Dr. Harvinder Singh. 25. PW-23 Jatinder Singh Sambyal (Investigating Officer) stated that investigation was conducted by him in FIR No. 145/2011 and identification parade was also got conducted. The accused was arrested and he prepared disclosure statement of the accused and also memo of recovery of the brick pursuant to the disclosure statement. During cross examination, he stated that he did not investigate who went in the shop of the deceased after the departure of PW Joginder Bali and PW Rakesh Kumar from his shop. Apart from these witnesses, Gulshan Sharma and Vicky were also in the dhaba. He did not record their statements, however, he investigated it. PWs Prithvi Singh and Sham Singh have made false statements that he got their signatures on blank papers. He further stated that the witnesses for the recovery have also made the false statements that their signatures were obtained on blank papers. 26. From the prosecution story, it is evident that there is no eye witness to the occurrence. The prosecution has relied upon the following circumstances to prove the guilt of the accused: (i) Last seen theory (ii) Identification parade of the accused (iii) Motive (iv) Disclosure statement of the accused and recovery of weapon of offence i.e. brick. 27. 26. From the prosecution story, it is evident that there is no eye witness to the occurrence. The prosecution has relied upon the following circumstances to prove the guilt of the accused: (i) Last seen theory (ii) Identification parade of the accused (iii) Motive (iv) Disclosure statement of the accused and recovery of weapon of offence i.e. brick. 27. (C-i) So far as last seen theory is concerned, even if, it is established that the accused went to the Dhaba of the deceased but there is evidence on record in form of statement of PW Joginder Kumar Bali, who has stated that when he went to the hotel of the deceased for having food, 3-4 persons were also eating there and when he left away, those 3-4 persons were still having food in the hotel of the deceased. PW Rakesh Kumar too has stated that when the accused came, 3-4 persons were also sitting in the hotel. When he closed his shop and went away, 2-3 persons were still sitting in the shop of the deceased. In view of this, it cannot be said that the deceased remained in the exclusive company of the accused, on the basis of which, it cannot be held that the deceased was last seen with the accused as such, this circumstance is not proved. 28. (C-ii) So far as identification parade is concerned, the prosecution has relied upon the statements of PW-Rakesh Kumar and Joginder Bali. PW Rakesh Kumar was having a shop adjacent to the shop of the deceased. He identified the accused in the identification parade. PW - Joginder Bali is a person who was having meals at the hotel of the deceased. PW-Rakesh Kumar has stated that the Police showed to him the accused in the Police Station when he was arrested and he was shown the accused 4-5 days prior to his going to the Tehsil Office. Likewise, PW-Joginder Bali has also deposed that he on his own went to the Police Station to see the accused. The statements of both these witnesses demonstrate that they had seen the accused in the Police Station prior to their identification. In such scenario, no reliance can be placed on such identification parade. 29. Likewise, PW-Joginder Bali has also deposed that he on his own went to the Police Station to see the accused. The statements of both these witnesses demonstrate that they had seen the accused in the Police Station prior to their identification. In such scenario, no reliance can be placed on such identification parade. 29. (C-iii) The motive projected by the prosecution to establish the guilt of the accused is that the deceased refused food, which was demanded by the accused and the accused went away abusing. PW Rakesh Kumar has simply stated that when the deceased refused to give food to the accused, he went away. PW Joginder Bali has also stated in a same manner. There is no evidence on record that the accused abused the deceased. So this circumstance too has not been proved. 30. (C-iv) The other circumstance is the disclosure statement of the accused as well as the consequent recovery, PWs Prithvi Singh and Sham Singh have been cited as witness to the disclosure statement & recovery memo but both these witnesses have not supported the prosecution. So this circumstance too has not been proved by the prosecution. 31. As already observed by us that the whole prosecution case is based upon the circumstantial evidence and when the case is based upon circumstantial evidence, then there should be no missing links in the chain of events and all links in the chain should be complete so as to establish all the incriminating circumstances to establish that it was accused only who committed the offence and must exclude other hypothesis which is consistent with the innocence of the accused. 32. We have gone through the judgment passed by the learned trial court and the learned trial court has meticulously examined the evidence and has rightly come to the conclusion that the respondent is not guilty of the commission of offence under section 302 RPC. In an appeal against the acquittal, it is only to be seen whether the opinion formed by the learned trial court is contrary to the evidence on record or not and merely on the basis of same set of evidence, the other opinion is also possible, is no ground for interfering with the judgment of acquittal. 33. For all what has been discussed above, we do not find any merit in the present appeal, as such, the same is dismissed.