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2023 DIGILAW 238 (JK)

State of J. & K. v. Sham Lal

2023-06-09

JAVED IQBAL WANI, SANJEEV KUMAR

body2023
JUDGMENT : (Sanjeev Kumar, J.) : 1. The erstwhile State of Jammu and Kashmir (now Union Territory) is in appeal against the judgment of acquittal dated 12.02.2008 passed by the learned 1st Additional Sessions Judge, Jammu (hereinafter referred to as the 'trial Court') in File No. 94/Session titled 'State vs. Sham Lal', whereby the trial Court has acquitted the respondent of the charges under sections 302 RPC read with Section 4/25 Arms Act. 2. As per the prosecution story, PW Sodagar Mal, brother of respondent/accused lodged a verbal report in the Police Station, Bishnah on 03.03.2004 at 7.45 am alleging that the respondent had murdered his wife Mst. Asha Rani and daughter Ms. Rajni Kumari on the intervening night of 2nd/3rd of March, 2004 with a sharp edged weapon. On the basis of this report, FIR No. 27/2004 was registered in Police Station, Bishnah. The Investigating Officer started investigation in the case, prepared site plan, seizure memo of articles seized on the spot, recorded disclosure statement of the respondent and made certain discoveries. The dead bodies were taken possession of and their post mortem got conducted. Apart from sending requisite samples for FSL examination, photographs of the dead bodies were taken and the statements of witnesses under Section 161 Cr.P.C were also recorded. As per the prosecution story, the occurrence is stated to have taken place in the house of respondent which is situate at Amir Nagar Dabbar, Bishnah. 3. On completion of the investigation and requisite formalities, challan was presented against the respondent under section 302 RPC read with Section 4/25 Arms Act in the Court of Judicial Magistrate 1st Class, Bishnah who committed the same to the Court of learned Principal Sessions Judge, Jammu as the offence under section 302 RPC was exclusively triable by the Court of Sessions. The case came to be transferred by the Principal Sessions Judge, Jammu to the trial Court for trial under law. The charges were framed against the respondent under section 302 RPC read with Section 4/25 Arms Act. Since the accused pleaded not guilty to the charges, as such, the prosecution was called upon to adduce evidence in support of its case. The charges were framed against the respondent under section 302 RPC read with Section 4/25 Arms Act. Since the accused pleaded not guilty to the charges, as such, the prosecution was called upon to adduce evidence in support of its case. With a view to bring home the guilt of the respondent, the prosecution examined PW- 1 Pritam Singh, PW-2 Puran Singh, PW-3 Sodagar Mal, PW-4 Hans Raj, PW-5 Ram Lla, PW-6 Krishan Lal, PW-7 Patwari Anwar Syeed, PW-8 Gopal Ram, PW-9 Mohinder Lal, PW-10 Daleep Singh, PW-11 Sunil Kumar, PW-12 Sumitri Devi, PW-13 Sanjay Kumar, PW-14 Dr. Kamal Kant Gupta, PW-15 Dr. Jaspal Singh, PW-16 Karan Singh, PW-17 Dr. Rekha Parihar, PW-18 Mool Raj and PW-19 Bodh Raj as witnesses. 4. On conclusion of prosecution evidence, the incriminating circumstances, appearing in the prosecution evidence, were put to the respondent and his statement under section 342 Cr.P.C was recorded. The respondent/accused opted not to adduce any evidence in defence. 5. The trial Court, after hearing both the sides and, having regard to the evidence on record, came to the conclusion that the prosecution had failed to prove its case beyond shadow of doubt. Consequently, the respondent was acquitted of the charges framed against him and he was set free while recording the judgment of acquittal. It is this judgment of acquittal which is assailed by the appellant on multiple grounds. 6. It is argued by Mr. Pawan Dev Singh learned Dy. AG appearing for the appellant that the trial Court has failed to appreciate that the prosecution has, by leading cogent evidence, successfully proved the charge against the respondent. He submits that, though the case of the prosecution was not rested on any ocular evidence, yet, the prosecution proved the same to the hilt by proving the chain of circumstances which led to an inescapable conclusion that the murder of mother and daughter duo was committed by the respondent and respondent alone. He takes us through the testimony of PW-1 Pritam Singh, PW-2 Puran Singh and PW-12 Sumitri Devi and submits that the evidence of these witnesses, if read in proper perspective, would lead the Court to the conclusion that there was sufficient motive with the respondent to commit murder of his wife and daughter. He takes us through the testimony of PW-1 Pritam Singh, PW-2 Puran Singh and PW-12 Sumitri Devi and submits that the evidence of these witnesses, if read in proper perspective, would lead the Court to the conclusion that there was sufficient motive with the respondent to commit murder of his wife and daughter. He argues that, as per the evidence of these witnesses, the relations between the respondent and the deceased wife were strained and the two had a serious matrimonial discord which became the reason for the respondent to take extreme step of killing his wife and daughter to get rid of day-today matrimonial dispute. Mr. Pawan Dev Singh, learned Dy.AG also draws our attention towards the evidence of PW Pritam Singh and PW Karan Singh and submits that the recovery of weapon of offence was made at the instance of and on the disclosure statement made by the respondent in the presence of aforesaid witnesses and which fact has been substantiated by them while recording their statements during trial. In a nutshell, learned counsel for the appellant submits that the prosecution had, by proving firmly the relevant circumstances, proved that it was the respondent alone who had killed his wife and daughter. The motive of the crime, extra-judicial confession made by the respondent, discovery statement leading to recovery of weapon of offence and the medical report, are the circumstances fully established by the prosecution and these circumstances do constitute a chain of events leading to only one hypothesis that the respondent alone is responsible for killing his wife and daughter. 7. Per contra, Mr. P.N. Raina learned Senior Counsel assisted by Mr. Hamal, appearing for the respondent submits that, all the aspects of the case highlighted by Mr. Pawan Dev learned Dy.AG, have been analyzed, dealt with and appropriately decided by the trial Court. He submits that trial Court has rightly concluded that not even a single relevant circumstance has been proved by the prosecution and, therefore, it cannot be said that the prosecution has proved its case against the respondent beyond any reasonable doubt. Learned Senior Counsel, in essence, supported the reasoning given by the trial Court to come to the conclusion of acquittal of the respondent. 8. Learned Senior Counsel, in essence, supported the reasoning given by the trial Court to come to the conclusion of acquittal of the respondent. 8. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the trial Court has correctly analyzed the evidence on record and come to the conclusion that the prosecution has miserably failed to prove its case against the respondent beyond any reasonable doubt. 9. Indisputably, there is no direct evidence to the occurrence and the entire case of the prosecution is built on the circumstantial evidence. The circumstances, which the prosecution tried to prove, can be enumerated in the following manner: (i) motive; (ii) recovery and discovery; (iii) extra judicial confession. Motive: 10. Though the motive is not a sine quo non for proving a case against the accused, yet, in a case rested purely on circumstantial evidence, the motive assumes importance and is a relevant circumstance. If motive is proved that would supply a link in the chain of circumstances established by the prosecution, but absence thereof cannot be a ground to reject the prosecution case. It can, thus, be said that absence of motive in a case based on circumstantial evidence is a factor that weighs in favour of the accused. (See Nandu Singh v. State of Madhya Pradesh, 2022 SCC OnLine SC 1454). PW-1 Pritam Singh and PW-12 Sumitri Devi are two witnesses examined by the prosecution to prove the motive of the crime. As per PW Pritam Singh, the deceased Asha Rani was married to respondent in the year 1985. PW Pritam Singh is nephew of the respondent. He, in his deposition, states that there was a matrimonial dispute between the deceased Asha Rani and the respondent who had once turned out the deceased Asha Rani from matrimonial home after administering her beating. He claims that he tried to counsel the respondent, but he told him to go to the Court. He submits that deceased Asha Rani filed a case against the respondent in some Court and had also informed the witness that her husband i.e. the respondent had illicit relations with his Bhabi. The Court granted Rs. 500 as maintenance to the deceased. The couple started leaving separately from family thereafter and their relations remained cordial and a male child was also born to them. The Court granted Rs. 500 as maintenance to the deceased. The couple started leaving separately from family thereafter and their relations remained cordial and a male child was also born to them. To the similar extent is the testimony of PW Sumitri Devi who is the mother of the deceased Asha Rani. She states that her daughter was married to the respondent about 20 years ago. The respondent used to beat the deceased. There was also a litigation filed by her daughter against the respondent. She deposes that she was even approached by her daughter and grand daughter Rajni with a request to take them along, else they would be killed. During cross-examination PW Sumitri Devi states that the matter with regard to mal-treatment of her daughter by the respondent was reported to the police about three years ago. 11. The trial Court has appreciated the evidence of these witnesses and has come to the conclusion that there is no proximity between the conduct of the respondent towards the deceased with the commission of offence. Both the respondent and his wife, deceased Asha Devi, and deceased daughter were staying in the same house. There is no recent incident of any maltreatment or beating administered to the deceased by the respondent. There is evidence on record which would suggest that the differences between the couple had been sorted out. Not only the two started living together, but a male child was also born to them. Otherwise also, the alleged maltreatment to which, as per the prosecution witnesses, deceased Asha Rani was subjected to, is not such as could be taken to form the motive to kill the wife and daughter. The trial Court has correctly appreciated this aspect and has found the evidence on this aspect completely wanting. 12. So far as the discovery statement and the recovery of incriminating material is concerned, the trial Court has analyzed the evidence of PW Pritam Singh and PW Karan Singh. It has come in the evidence of PW Pritam Singh that the respondent was beaten and made to hold his ears in the Police Station before his disclosure statement was recorded. It is, thus, the statement of PW Pritam Singh that the disclosure statement was, in fact, extracted from the respondent. The respondent, as per the prosecution, was arrested on 10.03.2003 and he alleged to have made disclosure statement on 15.03.2003. It is, thus, the statement of PW Pritam Singh that the disclosure statement was, in fact, extracted from the respondent. The respondent, as per the prosecution, was arrested on 10.03.2003 and he alleged to have made disclosure statement on 15.03.2003. The other witnesses to the disclosure statement have, however, turned hostile. In short, the trial Court has disbelieved the statements of witnesses to the disclosure statement and concluded that there was no disclosure statement of the respondent recorded in accordance with Section 27 of the Evidence Act. That apart, there is nothing on record to demonstrate by reference to any evidence, oral or documentary, which would proved that the weapon of offence recovered was actually the weapon used for commission of murder. 13. Regarding extra-judicial confession which, as per the prosecution, was made by the respondent in the presence of PW Sunil Kumar, the trial Court has rightly concluded that, except PW Sunil Kumar, the only witness to the extra-judicial confession turning hostile, there is no other material to believe that the respondent, had any point of time, confessed his guilt. 14. In view of the aforesaid evidence, the trial Court had no option other than recording acquittal of the respondent. The medical and the forensic evidence on record also does not lead us to any conclusion other than the one arrived at by the trial Court. There is no scientific or forensic evidence on record, on the basis of which, it could be conclusively held that the weapon of offence allegedly recovered by the police at the instance of the respondent was the weapon actually used in the commission of murder. The connection between the alleged weapon of offence and the commission of crime is altogether missing. 15. On the conspectus of evidence and material on record, we are of the firm opinion that the judgment of acquittal recorded by the trial Court is perfectly legal and valid and, therefore, does not call for any interference. Otherwise also, the jurisdiction of the Appellate Court, hearing the acquittal appeal, is well circumscribed where, on evaluation of evidence and the material on record, two views are possible, the view which favours the accused is to be preferred. Bearing that in mind, we hold that the appellant has failed to make out a case for interference in the judgment of acquittal recorded by the trial Court. Bearing that in mind, we hold that the appellant has failed to make out a case for interference in the judgment of acquittal recorded by the trial Court. This appeal is, therefore, found to be without merit and the same is, accordingly dismissed.