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2023 DIGILAW 400 (JK)

State of J&K v. Mukesh Kumar

2023-08-14

VINOD CHATTERJI KOUL

body2023
JUDGMENT : 1. Appellant-State has preferred the present appeal against the judgment dated 14.07.2012 of learned Third Additional Sessions Judge, Jammu (for brevity ‘trial Court’) in File No. 207 by which the respondents Mukesh Kumar and Anil Kumar were acquitted of the charge under Sections 304 Part-II/34 RPC. 2. In brief, the prosecution case is as under:- On 08.12.2006 Police Station, Janipur received information at 9:30 a.m. from reliable sources that dead body of one Gautam S/o Buta Ram R/o Mandlik Nagar, Jammu, who had been murdered by some unidentified person/persons by inflicting injuries on his head and other parts of his body, was lying in a room existing on a shed belonging to one Mohan Singh. On said information a case FIR No. 161/2006 for offence under Section 302 RFC was registered and investigation commenced. During the course of investigation, it was found that the body of the deceased-Gautam was already shifted to the CMC, Jammu. After postmortem body of the deceased was taken into the custody and seizure memo was prepared. The Police visited the spot, where body of the decease Gautam was found lying and the site plan of the place of recovery of dead body was prepared, blood stained clothes of the deceased-Gautam were seized and the FSL team was called to examine the spot. After recording the statements of witnesses under Section 161 Cr.P.C it came to the fore that deceased and accused persons were having prior acquaintance with each other, but after some time, relations between them turned sour. On 07-12-2006 at 7.00 p.m. the deceased in the company of PWs Naresh Kumar and Shanker, later Chowlddar of PW Mohan Lai were going towards Toph Bridge and when they reached at cremation ground near PHE office, deceased had confrontation with the accused persons who were also present there which turned into a fist fight, PWs Naresh Kumar and Shanker tried to intervene, but without any success. It is further alleged that during the scuffle deceased and accused came near a canal and in the process of administering beating to the deceased, both the accused pushed the deceased towards the canal. The deceased could not control himself and fell in the canal with his head downwards towards the water. It is further alleged that during the scuffle deceased and accused came near a canal and in the process of administering beating to the deceased, both the accused pushed the deceased towards the canal. The deceased could not control himself and fell in the canal with his head downwards towards the water. PWs Naresh Kumar and Shanker along with accused brought out the deceased from the canal, who was unconscious and blood was oozing out from his head and nose. PW4 Naresh Kumar immediately left the spot in order to inform the family of the deceased. However, accused persons along with PW Shanker boarded on Auto No.JK02U/9681 of PW Partap Singh and put the deceased in the same and proceeded in the said Auto towards a lane near the plot of PW IO Mohan Singh at Mandlik Nagar in order to keep the deceased in the room of PW Shanker existing in the aforesaid plot. During investigation it came to fore that when it was found by the accused that body of the deceased got stiff and had died, accused persons along with PW Shanker left the spot leaving the body of the deceased-Gautam in the aforesaid room after locking the latch of the room from outside. The accused were taken into custody along with PW Shanker and during the course of their custodial interrogation, it was found that PW Shanker was not involved in the occurrence in any manner, as such, benefit under Section 169 Cr.P.C was given to him and he was released from custody. His statement was recorded under section 161 Cr.P.C as a witness in the case. After receiving the post-mortem and FSL report and after completion of investigation, it was found that offence under section 302 RPC was not made out against the accused, rather they had committed offence under section 304 RPC, so offence under section 302 RPC was dropped and final report under Section 173 Cr.P.C was filed in the Court of law and after the conclusion of the trial the same has resulted in the impugned judgment. 3. Mr. P. D. Singh, learned Dy.AG while assailing the impugned judgment urged that the trial Court has passed an order of acquittal without application of mind to the evidence produced by the prosecution. 3. Mr. P. D. Singh, learned Dy.AG while assailing the impugned judgment urged that the trial Court has passed an order of acquittal without application of mind to the evidence produced by the prosecution. Further, that the prosecution evidence has proved the offences against the respondents beyond any shadow of doubt, but the trial Court has on the basis of minor contradictions in the evidence acquitted the respondents. 4. Learned counsel for the respondents controverted the arguments and contended that there was no reliable, cogent and consistent evidence before the trial Court even to convict the respondents under Section 304 Part II IPC and that the respondents were falsely implicated in the case. 5. The prosecution has examined Partap Singh, Parshotam, Deepu, Naresh Kumar, Shashi, Dalbir Singh, Dr. K. K. Thakur, Tej Ram, Mohd Raj, Mohan Singh, Dinesh Singh, Anil Mangotra,- Executive Magistrate and Inspector Surinder Biloria. Brief resume of their evidence is as under:- PW 1 Partap Singh is the auto driver, has stated that accused are known to him, but deceased was not known to him. On 31.12.2006 in the evening, he was standing near Toph Bridge, in the meanwhile, accused Mukesh Kumar came to him and told that a heavily drunk person is required to be taken to his house, he was reluctant to take the said unconscious person in his Auto, however on the request of the accused persons, took them towards Manklik Nagar. He further stated that on the next day, he was sitting in his house, brother of the deceased whose name is not known to him came there and told him about the identity of the persons who were taken by him in his Auto to Mandlik Nagar, thereafter police came and took him to Janipur police station and his Auto was seized. In cross-examination, he has stated that accused were not known to him before the occurrence, the police had not conducted identification parade in respect of the accused and nor any identification was got conducted by the police in respect of the person who was put in his Auto by the accused persons in an unconscious position. He further stated that he has no knowledge about the actual occurrence. PW2 Parshotam has stated that accused are known to him. Deceased was his real brother. He further stated that he has no knowledge about the actual occurrence. PW2 Parshotam has stated that accused are known to him. Deceased was his real brother. He has further stated that on 7.12.2006 he was coming back to his house after funishing his duty and on the way near Mandlik Nagar, PW 4 Naresh Kumar met him and told him that there was a scuffle between his brother Gautam and accused persons. He alongwith Naresh Kumar rushed to a canal near Mandlik Nagar, bu no body was found there, the place where deceased used to work was also searched, thereafter they went to the house of brother-in-law of the accused near Mandlik Nagar, but he beat them with fists and blows due to which PW 4 Naresh Kumar was injured. He stated that due to late night hours, they abandoned the search the search and on next day in the morning, they went to the auto stand where auto driver Partap Singh told them that he had left deceased in the saw mill of PW I0 Mohan and thereafter from the room of chowkidar of said mill which was locked from outside, the body of deceased was found which was taken in the car of PW I0 Mohan to the hospital. The police was informed in the hospital. In cross-examination he has stated that occurrence had not taken place in his presence nor he has any knowledge about the same. He stated that the deceased was an employee in the same saw mill from where his body was recovered. The dead body of the deceased was lying on a bed in a naked condition and in the same condition it was taken to the hospital. PW 3 Deepu has stated that accused and the deceased are known to him. The deceased was brother-in-law of his brother. On 7.12.2006 he had received a phone call from PW Parshotam about the death of deceased Gautam. He went to the hospital where postmortem of the deceased was got conducted. PW4 Naresh Kumar has stated that accused and deceased are known to him. On 7.12.2006, he along with PW Shanker and deceased-Gautam were going towards Toph bridge and on the way, accused Mukesh met him who enquired from the deceased as to what he was saying on phone, over which arguments started between them. Thereafter accused Mukesh left the spot. PW4 Naresh Kumar has stated that accused and deceased are known to him. On 7.12.2006, he along with PW Shanker and deceased-Gautam were going towards Toph bridge and on the way, accused Mukesh met him who enquired from the deceased as to what he was saying on phone, over which arguments started between them. Thereafter accused Mukesh left the spot. He has further stated that when they were returning back and reached at a canal near PPIE office, accused persons met them and they started beating the deceased-Gautam, he tried to intervene, in the meantime, accused Mukesh pushed the deceased towards the canal due to which deceased tell down, they all tried to pull the deceased from the but deceased was found dead, he had asked PW Shanker to sit there and went to inform family members of the deceased. That he reached the house of deceased at Mandlik Nagar and from there brought brother of the deceased, namely, PW Parshotam to the spot, but neither accused nor PW Shanker or deceased were found present there. They rushed to the house of brother-in-law of the deceased, but he beat them due to which he received injuries. In cross-examination he has stated that none of them including deceased and accused had taken alcohol on the eventful day, as soon as deceased fell down in the canal, all of them were worried, they made a Joint effort to pull out the deceased from the canal as water of canal was very cold due to which there was possibility of death of deceased. That on timely efforts made by accused Mukesh and PW Shanker, deceased was pulled out from the canal. He further stated that the report was not lodged to the police on the same day but was made on the next day and it was the Job of the family of deceased to lodge the report earlier. PW 5 Shashi has stated that accused were not known to him prior to occurrence, but after the occurrence, he had seen the accused in the police station. The deceased was his brother-in-law. That on 7/8th of December, 2006 after receiving a phone call about the deceased having scuffle with some person, he went to Mandlik Nagar, but nobody was there. The deceased was his brother-in-law. That on 7/8th of December, 2006 after receiving a phone call about the deceased having scuffle with some person, he went to Mandlik Nagar, but nobody was there. He stated that PW4 Naresh had probably given him phone call about the scuffle and injuries received by the deceased at the hands of accused, who had pushed the deceased in a canal. PW 6 Dalbir Singh is the photographer who had taken photographs of the dead body of the deceased at GMC. Jammu and at the place of occurrence. PW 7 Dr. K.K. Thakur has conduced postmortem of the deceased and found following injuries;- 1. Abrasion 1cm x 1/2 cm over the forehead radish in colour. 2. Abrasion over right knee l0 cm x 1cm over the left knee 1cm x 5cm, below the left knee 1.5cm x .5cm, on the right leg interior aspect .7cm x .5cm and interior aspect of left leg .5cmX .5cm.3. 3. Abrasion .5cm on the darcel aspect of left little finger. .All the abrasions were radish in colour. 4. Haematoma present over the scalp in the right occipital with brushing of the scalp underneath. One haemotoma present in parietal area extending to temporal area 8cm x 3cm radish brown in colour. Sub dural haemotoma present in right parietal area 4cm x 3cm x .5cm with multiple small haemorrhage in the brain substance, fracture in the anterior cranial fossa present on the right side. According to his opinion, death in this ease was due to cranio-cerebral damage as a result of blunt trauma head. In cross-examination he has stated that postmortem was conducted on 8.12.2006 at 4.00 p.m. and the time of death as per postmortem has been about 12 hours which means it can be eight hours or it can be maximum sixteen hours. That there was smell of alcohol in the contents of the food found in the stomach of the deceased. PW 8 Tej Ram has stated that police had recovered clothes of the deceased from the place of occurrence which were sealed and the ring used for seal impression was kepi on his supurdnama, which is in the file. PW 9 Mool Raj. Scientific Officer, FSL. Jammu has proved his report in the file regarding the FSL opinion about the clothes of deceased, wet clay and unstained clay. PW 9 Mool Raj. Scientific Officer, FSL. Jammu has proved his report in the file regarding the FSL opinion about the clothes of deceased, wet clay and unstained clay. PW10 Mohan Singh has stated that accused are known to him, deceased was also known to him, who used to work with him. About four years back on 7th of December at 10.00 a.m. he went to his shop and found its shutter closed. That he came to know from his neighboring shop owner about some quarrel with the accused and thereafter he went to the house of the deceased where he came to know about a quarrel which took place between deceased and the accused in the process of which deceased was thrown in a canal. The father of the deceased told him that they made a search of the deceased on the previous day but no clue was found. He along with family members of the deceased went to the house of PW Shankar but the room was found locked from outside and when they went inside they found deceased lying on a bed and after watching the deceased closely, it was found that he was dead and he was taken to hospital in his vehicle where he was declared as brought dead. PW 13 Inspector Surinder Biloria is the 1.0 in the case. He has stated that in the year 2006, he was posted as SHO of Police Station, Janipur and had registered case FIR No. 161/2006 for offence under Section 302 RPC and took over investigation. Since dead body was taken to the hospital, so he went to the GMC and seized the body. He identified memos prepared during investigation of the case. He has further that as per the investigation it was established that deceased Gautam was killed by accused persons by inflicting injuries over his head and he has produced challan in the Court against the accused for commission of offence under Section 304 RPC as the deceased died on account of a scuffle. In cross-examination, he has stated that it is true that case was made out against the accused due to statement given by PWs Naresh Kumar and Shanker. This is correct to say that PW Shanker had also remained in custody of the police from 11th of December to 18th of December 2006 and before that PW Shanker was absconding. In cross-examination, he has stated that it is true that case was made out against the accused due to statement given by PWs Naresh Kumar and Shanker. This is correct to say that PW Shanker had also remained in custody of the police from 11th of December to 18th of December 2006 and before that PW Shanker was absconding. The 'body of the deceased was found from the room of Shanker alongwith blood stained clothes, but as per his investigation, the place of occurrence is a spot near canal and not the room of PW Shanker. That no report was lodged about the occurrence on the same night. That during investigation, involvement of PW Shanker was not found, as such he was given benefit under section 1 69 of Cr.P.C.” 6. Statements of accused under Section 342 Cr.P.C were recorded on 02.01.2012 in which accused have denied the truth of prosecution evidence against them and they have further denied that any scuffle took place between them and deceased. 7. As already observed hereinabove the prosecution has let in evidence by subjecting to examination the aforesaid witnesses. PW1 Partap Singh is the Auto Driver, who took an unconscious heavily drunk person in his Auto at the request of accused-Mukesh who had no knowledge about the unconscious condition of the deceased –Gautam. The investigation officer of the case has not made any effort to get the identification of body of deceased-Gautam from the said witness to establish the fact that after the alleged occurrence both the accused dumped the body of the deceased in a room of Saw Mill. 8. It is required to state that trial Court rightly held that PW 5 Shashi is the person who was informed by some body on phone about the scuffle which took placed between the deceased and accused persons and he was not an eye witness and the trial court has rightly held that this witness has given different colour to the prosecution case by implicating PW IO Mohan Singh and PW Shanker in the crime which is not the case of prosecution. Witnesses, PW 6 Dalbir Singh, PW 11 Dinesh Singh, photographers, PW 8 Tej Ram and PW 12 Anil Mangotra, Naib Tehsildar are formal in nature. 9. Witnesses, PW 6 Dalbir Singh, PW 11 Dinesh Singh, photographers, PW 8 Tej Ram and PW 12 Anil Mangotra, Naib Tehsildar are formal in nature. 9. PW Mohan Singh, has not supported the case of the prosecution as he has not stated anything incriminating against the accused persons to connect the accused with the crime. He has only stated that deceased-Gautam, PW Shankar and accused used to sit in the room of his saw mill and they used to take liquor together. 10. The medical evidence is also not favourable to the prosecution, as the most important witness, PW 7 Dr. K.K.Thakur who conducted the post on the body of the deceased on 8.12.2006 stated that deceased had died due to cranio cerebral damage as a result of blunt trauma head. He has specifically stated that the time of death of deceased was about 12 hours when postmortem was conducted by him at 4.00 p.m. He has further stated that by taking maximum side as 16 hours the time of death, then the death had taken place at about 12 noon at 8.12.2006 and on going to minimum side, the death had taken place at 8'o clock in the morning on 8.12.2006 and there cannot be any other opinion possible or plausible with regard to the time of death. Thus, as per the statement of this witness, it seems that deceased had died at 12 noon or 8'o clock in the morning on 8.12.2006 and his testimony has almost ruled out that deceased had died on the spot in the evening of 7.12.2006. 11. There is no dispute about the death of deceased-Gautam at the prime of his youth, but there is no justifiable ground as urged in this appeal for seeking intervention even by challenging the acquittal judgment and no worthwhile evidence has been adduced by the prosecution for securing conviction. 12. The trial Court has on appreciation of evidence on record held that material on record is not sufficient to arrive at a conclusion that accused were the perpetrators of crime with which they have been charged. 12. The trial Court has on appreciation of evidence on record held that material on record is not sufficient to arrive at a conclusion that accused were the perpetrators of crime with which they have been charged. PW Shanker an eye witness in the case has not been examined, PW4 Naresh Kumar has not been found to be reliable and trustworthy witness, the evidence of other witnesses examined in the case is hearsay and last but not the least, even medical evidence is not supporting the prosecution case, insofar as the time of death of deceased is concerned. While going through the record of the case, no fault can be found so far appreciation of the prosecution evidence by the trial Court is concerned. 13. In the instant case, the prosecution has not been able to produce worthwhile evidence or even adequate evidence to prove the guilt of the accused beyond all reasonable doubt. There are serious discrepancies in the statements of the prosecution witnesses, and there is no cogent and convincing evidence in the case to show the involvement of the accused in the crime. The prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Therefore, in terms of the aforesaid reasons and findings, I am of the opinion, that the prosecution has failed to establish the guilt of the accused. There is no perversity or absurdity or infirmity found in the impugned judgment rendered by the trial Court. Consequently, acquittal judgment rendered by the trial Court in File No. 27 dated 14.07.2012, is hereby confirmed.