Raj Kumari vs State Of J&K on 27 September, 2024

[Cites 15, Cited by 0]

Jammu & Kashmir High Court

Raj Kumari vs State Of J&K on 27 September, 2024

01. This appeal has been directed against the judgment and order dated 20.04.2016, propounded by learned Principal Sessions Judge, Kathua (fort short, "the trial court") in file No. 28/Challan titled "State vs. Raj Kumari", vide which, appellant came to be convicted for offence under Section 302 of Ranbir Panel Code, 1989, ["RPC"], and sentenced to undergo rigorous imprisonment for life and pay fine of Rs. 10,000/- and in case of default in the payment of fine, to further undergo rigorous imprisonment for three months.

02. The appellant has assailed the impugned judgment of conviction and order of sentence on multiple grounds, however, before the grounds urged in the memo of appeal are adverted to, it shall be apt to have a bird‟s eye view of the background facts of the case.

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03. The prosecution story, as unfurled from the charge sheet, is that on 24.10.2012, PW Jaswant Singh lodged an oral report in Police Station, Kathua, alleging inter alia that during the intervening night of 23 rd/24th of October 2012, while his aunt namely, Soma Devi, who was residing in ward no. 10, Kathua was asleep, some unknown persons trespassed into her house, killed her and was robbed of her gold ear rings. It was reported that dead body of the deceased was lying on the bed in her room. On the receipt of this report, the police agency swung into action, FIR No. 431/2012, came to be registered and investigation came into vogue. During investigation, the investigating agency, besides other legal formalities, lifted finger prints from the room of the deceased, seized blood stained articles and one brick lying in the veranda of the house. The investigating officer recorded statements of witnesses in terms of Sections 161 CrPC and 164 CrPC.

04. It surfaced during investigation that marriage of the daughter of appellant, was slated for 27.10.2012. About 15-20 days prior to the occurrence, appellant came to the house of PW Kamlesh Kumari to invite her on the wedding of her daughter. The appellant met the deceased in her house, where PW Kamlesh Kumari used to work as a domestic help. The appellant on seeing the deceased wearing gold ear rings and finger rings, thought to steal them. Accordingly, on 23.10.2012, the appellant along with her son came to the house of PW Kamlesh Kumari at about 3.00/3.30 PM and in the evening met the deceased in her house. The appellant after survey of the house of the deceased, returned to the house of PW Kamlesh Kumari and during the intervening night, when all were asleep, the appellant went to the house of the deceased Soma Devi, who opened the door and allowed her to sleep with her on the bed. It is alleged that when deceased fell asleep, the appellant assaulted the deceased on her head with a 3 CRA No. 11/2018 brick and robbed the aforesaid ornaments. It is also alleged that appellant also made an abortive attempt to break open the lock of the room to steal other articles and returned to the house of PW Kamlesh Kumari via the roof of the house. It also surfaced that subsequently, the appellant handed over the stolen ornaments to PW Anil Kumar, a goldsmith, for preparation of ornaments for her daughter and during investigation, said gold ornaments came to be recovered by the investigating agency from the goldsmith, PW Anil Kumar, pursuant to the disclosure statement made by the appellant. From the foregoing material, the investigating agency came to the conclusion that the deceased after being done to death was robbed of her gold ornaments by the appellant and filed charge- sheet against her under Sections 302/392 RPC.

05. The appellant was charged by the trial court for the aforesaid offences, whereby she pleaded not guilty and claimed trial, prompting the trial court to ask for the prosecution evidence and prosecution has examined 16 witnesses to establish the charge.

06. A brief resume of the prosecution evidence is as below:-

07. PW 1 Jaswant Singh is the complainant.

He has deposed that on 24.10.2012 at about 8.30 AM, he heard noise in the street, where his deceased aunt was residing. He went there and found dead body of his aunt lying on a cot. He lodged report with the police. The police came to the spot and besides other formalities, lifted fingerprints from the spot. A brick bearing mark MBK, used in breaking open of the lock, came to be seized by the police. The said brick was found broken on its edge. A bolt, brick, pieces of brick, bed sheet and a towel were seized by the police and the sealed packets were respectively given the marks A, B and D. He signed a document with respect to brick, pieces of brick and a bolt and PW Karnail Singh also 4 CRA No. 11/2018 signed the said documents. He has admitted the FIR Ext-P1/1, lodged by him, the seizure memo of dead body Ext-P1/1, seizure memo of clothes Ext-P1/2, seizure memo with respect to clothes of the deceased Ext-P1/3, seizure memo of brick Ext-P1/4, supurdnama of ring Ext-P1/5 and receipt of dead body Ext-P1/6. In cross-examination, he has stated that when he reached the spot, door of the room was open but there was nobody inside the room where dead body was lying. He went to the police station and lodged an oral report. The injury on the head of the deceased was visible and deceased was bleeding from ears and nose. Ear rings of the deceased had been taken away. The brick was broken on its edge. On 23.10.2012, he had not seen the accused in the vicinity around the house of the deceased.

08. PW 2 Karnail Singh, has stated that deceased was his aunt who used to reside all alone in her house because his uncle had already expired. His cousin PW Kamlesh Rani used to look after his aunt. On 24.10.2012 at about 8.30 AM, PW Kamlesh Rani saw dead body of the deceased lying on the bed. She raised alarm and the neighbourers assembled on the spot. He also went there and saw the dead body. PW Jaswant Singh came there and went to the police station to lodge the report. Police came to the spot and besides other formalities, lifted the fingerprints, recovered the brick, bolt, pieces of brick, bed sheet and a pillow. His statement was recorded by the police in the hospital. The ring was handed over to PW Jaswant Singh. He has admitted the seizure memo of dead body Ext-P1/1, seizure memo of clothes Ext-P1/2, seizure memo with respect to clothes of the deceased Ext-P1/3, seizure memo of brick Ext-P1/4, supurdnama of ring Ext-P1/5 and receipt of dead body Ext-P1/6. In cross-examination, he has stated that he does not know as to who killed the deceased. 5 CRA No. 11/2018

09. PW 3 Surinder Singh, has stated that on 24.10.2012, he received telephonic information from PW Kamlesh Devi about the murder of his mother- in-law. He reached Kathua at about 10.00 AM and saw dead body of the deceased lying on a bed. The police seized a pillow, a towel, blood stained bed sheet and a brick. A ring was handed over to PW Jaswant Singh. The witness goes on to state that on 28.10.2012, when he went to Police Station, Kathua to enquire about the case and while they were sitting in the room of the SHO, the accused admitted that she had given two ear rings and two other rings to a goldsmith, namely, Anil Kumar, and she could get them recovered. A document in this respect was prepared and accused put her impression over the same. He and his wife signed the said document. Thereafter, accused was taken by the police to the shop of the goldsmith, PW Anil Kumar. He and his wife accompanied the police. The goldsmith produced stolen ornaments from his locker to the police which were identified by his wife, because she got them prepared for her deceased mother and ornaments belonged to the deceased. He is sure that his mother-in-law was killed by the accused. He has admitted memo of receipt of dead body Ext-P1/6, memo of disclosure Ext-P4 and memo of recovery Ext-P4/1. In cross-examination, he has stated that when he went to the spot, he saw that blood was coming out from the right ear and nose of the dead body. The deceased had received injury on the right side of her head. He did not see whether blood was coming out from the site of the injury or not. He did not count the number of injuries. He had seen the ear rings and other rings with the deceased. Besides him, his wife and police officials, employees of goldsmith were present in his shop.

10. PW 4 Mamta Rani is daughter of the deceased.

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She has deposed that on 24.10.2012, she received a telephonic call from her cousin sister PW Kamlesh Kumari that her mother is lying dead in her house. She rushed from Jammu and reached Kathua at about 10.00 AM. People had assembled in her house and police was also present there. She saw that there was bleeding from the nose of her mother. She noticed that ear rings and finger rings of the deceased were missing. No other article was found missing from the house. The dead body was taken away by the police for post-mortem and later it was cremated. In the evening, she enquired from PW Kamlesh Kumari, who told her that appellant, who happens to be her aunt, along with her son had come there. The appellant expressed her desire to meet the deceased. PW Kamlesh intended to take the appellant through the gate of the house, to which the appellant objected and she desired to go to the house of the deceased through the common roof between the houses of PW Kamlesh Kumari and that of the deceased. She was also told by PW Kamlesh Kumari that after about 10 minutes, she was called by her husband and while she returned to provide meals to her husband, the appellant stayed back in the house of the deceased. When PW Kamlesh was again going to the house of the deceased, she saw the appellant coming back to the house of PW Kamlesh through stairs and on being enquired by PW Kamlesh, the appellant replied that she was feeling sleepy. Thereafter, the accused went to sleep. She was further informed by PW Kamlesh that at about 3.30 AM, she woke up and found the appellant missing from her bed. PW Kamlesh saw the appellant getting down through the stairs and she was frightened. When PW Kamlesh enquired about the reasons, the appellant told her that she was feeling frightened. On being enquired by PW Kamlesh, the appellant revealed that she had gone to the roof. The witness goes on to state that while the appellant was in the house of PW Kamlesh, she was 7 CRA No. 11/2018 feeling frightened and could not stay there. At about 4.00 AM, the appellant woke her son up and both of them left. The witness has further stated that on 25th, she went to the police station, where her statement was recorded. On 28th, she again went to the police station, where she saw that appellant was being questioned by SHO. At first, the accused did not make any confession, but later she confessed her guilt. The appellant in the police station narrated that when the deceased was asleep, she gave a blow of brick upon her head, stole her ear rings and finger rings and the said ornaments were handed over by her to goldsmith PW Anil Kumar of Govindsar. The document, in this respect, was prepared by the police. Thereafter, the appellant was taken to the said goldsmith. The goldsmith produced ear rings and finger rings from an almirah. The document was prepared in this respect. She has admitted the memos of disclosure and recovery, Ext-P4 and Ext-P4/1 respectively. In cross- examination, she has stated that on right side of the room, there was a lock and an unsuccessful attempt had been made to break open the said lock. She found a brick lying near the door. PW Kamlesh did not work as a domestic help, but used to look after the deceased because she is her cousin sister. There is no mention in her statement under Section 161 CrPC that PW Kamlesh Kumari intended to take appellant to the house of the deceased through the gate of the house. Her husband-Surinder Singh was along with her when she went to the Police Station on 28th. The appellant while making the confession had also disclosed that before stealing the ornaments, she had confirmed that deceased had died. The witness has stated that the memos of disclosure and recovery were prepared in the police station, after the police returned from the place of recovery and they signed the said documents after returning from the shop of the goldsmith. At the time of recovery, besides herself, her husband, the police 8 CRA No. 11/2018 officials and the goldsmith, employees of the goldsmith were present. She has admitted that PW Kamlesh had not seen the appellant killing the deceased.

11. PW 5 Anil Kumar, is the goldsmith, from whom the ornaments alleged to have been stolen by the appellant, came to be recovered by the investigating agency.

He has deposed that he runs a shop of goldsmith at Govindsar. The appellant had placed an order to prepare ornaments in connection with the marriage of her daughter. On 20.10.2012, appellant came to him and purchased some articles of silver etc. On 24.10.1012, appellant again came to his shop at about 4.00/4.30 PM. The appellant gave him a pair of gold ear rings and two finger rings, weighing 11 grams 860 miligrams and asked him to prepare ornaments. Prior to this, the appellant had purchased ornaments from him in connection with 2/3 weddings. On 28th, he read in the newspaper that a murder had taken place in Kathua. After some time, his cousin Arjun Singh came to him and told that people were saying that said murder had been committed by one Raj Kumari, the accused. Thereafter, he called his uncle Avtar Singh and told him that appellant had given him some ornaments. His uncle made a telephonic call to the police station and police came to his shop along with PWs Mamta Rani and Surinder Singh. The appellant Raj Kumari was also with the police. He handed over the aforesaid ornaments to the police, those were identified by PW Mamta Rani. He has admitted the memo Ext-P4/1 and also identified the gold ornaments in the Court. He also made his statement under Section 164 CrPC. In cross-examination, he has stated that appellant was known to him for the last about 10 to 11 years. The husband of the appellant, who was a retired army personnel and a farmer, is also known to him. One of the sons of the appellant is also in army. The appellant had purchased gold ornaments from him 9 CRA No. 11/2018 in connection with the marriage of her 3-4 children and she never deceived him. He had prepared the ornaments for the wedding of the daughter of the appellant which was solemnized on 27.10.2012 and he received the payment. After the ornaments were prepared, the appellant along with her husband and daughter-in- law, came to him. It was not written in the newspaper as to who had committed the murder. On 28.10.2012, police came to him on receipt of telephonic call. PW Mamta Rani, daughter of the deceased was not known to him. His statement was recorded by SHO Chanchal Singh in the police station in the presence of Dy.SP. He handed over the ear rings and finger rings to the police on 28.10.2012, when police came to his shop at about 2.00/2.30 PM. At that time he did not know that those ornaments were stolen, but he handed over the ornaments to the police out of fear. Appellant Raj Kumari owes him a sum of Rs. 41,500/- and he was asked by the appellant to adjust the outstanding amount against the aforesaid ear rings and finger rings. After handing over the ornaments, he went to the police station and signed the document there. He got his statement recorded in the court at the instance of the police.

12. PW 6 Jatinder Mishra, Tehsildar Kathua, has stated that on 19.11.2012, police officials of police station, Kathua produced six sealed packets marked A, B, C, E, F and Q for resealing. He resealed those packets and issued the authority letter Ext-P6 in favour of FSL Jammu. In cross- examination, he has stated that the certificate Ext-P6 had already been prepared by the police officials. One of the stamps on the certificate bears his signatures, whereas the other stamps do not bear his signatures.

13. PW 7 Dr. Vasna Devi, has deposed that autopsy on the dead body of the deceased was conducted by Board of Doctors of which she was a member. In the opinion of the Board, the deceased died due to the injuries on vital organ i.e. 10 CRA No. 11/2018 brain leading to cardiopulmonary arrest. She has admitted the post-mortem report Ext-P8. She has also admitted the certificate Ext-P7 regarding the alleged weapon of offence, brick (Mark-A). The witness has stated that the injuries mentioned in the post-mortem report of the deceased could be caused by such brick. In cross-examination, she has stated that so far as external injuries are concerned, there were only bruises on the scalp of the deceased. However, internally, the deceased had a fracture in paritotemporal bones on left side of the head and brain membranes were torn and congested. The brain substance of the deceased was ecchymosed and edematous. Neither the dimensions of the internal injuries nor their shape is mentioned in the post-mortem report. The duration of the death was 12 to 14 hours of the post-mortem. It is not mentioned in the report that a corner of the brick was broken. There were 3 to 4 external injuries/bruises on the person of the deceased. The injuries, which led to the death of the deceased, could be inflicted with the brick in question if force is applied.

14. PW 8 Dr. Mohinder Lal is also one of the members of the Medical Board, who conducted post-mortem of deceased Soma Devi, with alleged history of assault. He has stated that during post-mortem, following external and internal injuries were noticed on the dead body of the deceased:-

a. Bleeding from the mouth and left nostril seen;

b. Bruises over the scalp on left parito temporal region. It is bluish pink in colour. That parito temporal bones on left side fractured. Membranes were torn and congested. The brain substance edematous and ecchymosed with laceration seen.

He has stated that Board was of the opinion that deceased had died due to injuries to vital organ i.e. brain leading to cardio pulmonary arrest and death due to head injury. He has admitted the post-mortem report (Ext-P8). In cross-

examination, he has stated that post-mortem was conducted on 24.10.2012 at about 11.30 AM and time since death is within 12-24 hours of conducting post-

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mortem. As per the time since death mentioned in the post-mortem report, the deceased had died before 11.30 PM on 23.10.2012. He did not examine the weapon of offence. He has not seen the weapon of offence. The dimension of the injuries is not mentioned in the post-mortem report. It is also not mentioned whether the injuries are regular or irregular. In this type of injury, a lot of force is needed.

15. PW 9 Dr. Ravinder Kumar is also one of the members of Board of Doctors, which conducted post-mortem of the deceased Soma Devi on 24.10.2012. The witness has admitted the post-mortem report Ext-P8.

16. PW 10 Arjun Singh has stated that on 25th/26th October, he read in the newspaper that in ward no. 10 some lady had committed the murder of another lady. He heard the rumour that a lady from Morali had committed the murder. He narrated all these to one of his friends Anil Kumar, who is a goldsmith. Said Anil Kumar told him that a lady from Morali had purchased ornaments from him and the payment is due. Anil Kumar also told him that the said lady had given him some ornaments. His father made a telephone call to the police station, whereupon police came over there and conducted the proceedings. In cross-examination, he has stated that it was not written in the newspaper as to who had committed the murder. He does not know when his father made a call to the police station, because it was not made in his presence. He cannot say whether police came to the spot on the phone call of his father or not. The police came to the shop of Anil Kumar at about 3.00 to 4.00 PM. He was not present there. He does not know whether police recovered any ornaments from the shop of Anil goldsmith or not. It is wrongly written in his statement under Section 161 CrPC that the recovery of ornaments from the shop of Anil goldsmith had 12 CRA No. 11/2018 taken place in his presence. His father too did not go to the shop of Anil goldsmith. He had not seen the accused on the shop of Anil goldsmith.

17. PW 11 Ishfak Ahmed Bhat, has stated that in October 2012, he was posted as Patwari Halqa Taraf. On 09.10.2012, he went to the house of deceased Soma Devi in ward no. 10 Kathua along with police. He prepared a Dasti Khaka, as per demarcation made by police. He also prepared copy of Khasra Girdawari, with respect to Khasra No. 558 min of village Taraf. He has admitted both the documents Ext-P1 and Ext-P2 prepared by him.

18. PW 12 Darshan Singh, has stated that accused is the maternal aunt of his wife and deceased was paternal aunt of his wife. Last year, when he returned from his duty, he saw the accused in his house. He enquired from his wife PW Kamlesh Kumari regarding the purpose of visit of the accused and he was told that accused was on way to the house of her brother and she would stay for one night in their house. His wife also told him that accused wanted to meet the deceased. Accused went to the house of the deceased and stayed there. His wife also accompanied the deceased. He called his wife after half an hour for meals and his wife came back. He enquired about the accused from his wife and his wife went to call the accused. While his wife was going to call the accused, she saw her getting down from the stairs leading to the roof. Thereafter, all of them had meals and went to sleep. He slept in one room, whereas, accused, his wife and his daughter slept in the other room. Son of the accused slept outside. He woke up at about 4.30 AM and accused told him that she was leaving. He told the accused that she will not get any transport, but accused told him she had to go to Channgrain to get money from somebody. At about 8.00 AM, he went to Morali. His wife went to the roof, but could not find the deceased. Thereafter, she went to the house of the deceased and found her lying dead. His statement 13 CRA No. 11/2018 was recorded after 3-4 days. In cross-examination, he has stated that accused did not express her desire to meet the deceased in his presence. After about an hour, he called his wife back from the house of the deceased and one hour thereafter accused also came back from the house of the deceased. At that time, accused was neither frightened nor was feeling breathlessness. He went to sleep at about 9.00/10.00 PM. He woke up in the morning at about 5.00 AM and saw the accused leaving. His wife had already woken up. At about 8.00 AM, they came to know that the deceased had died. He does not know as to how the deceased had died.

19. PW 13 Kamlesh Kumari, has stated that accused is her maternal aunt and deceased was her paternal aunt. On 23.10.2012, accused came to her house at about 3.30 PM. The roof of her house and that of house of the deceased are adjacent to each other. She offered meals to the accused, whereafter, she expressed her desire to meet the deceased. She accompanied the accused to the house of the deceased through the roof. She stayed there for about 5-7 minutes and in the meantime, she was called back by her husband. She came back and accused stayed back with the deceased. After some time, when she was again going to the house of the deceased, she saw the accused coming down from the stairs. She along with her daughter and accused slept in one room. Her husband and her son slept in other room and son of the accused slept in the Veranda. At about 3.15 AM, she woke up and saw that accused was not present on her cot, but her chappal was lying there. The accused was not present in the room and could not be found there. After some time, while she was engaged in her work, the accused came over there when she enquired from the accused as to where she had gone, the accused replied that she had gone to sleep on the roof. At about 4.00 AM, the accused woke up and left alone with her son. After some 14 CRA No. 11/2018 time, she went to the house of the deceased at about 8.30 AM and found the door of the house of the deceased closed. She opened the door and found the deceased lying dead. On coming back, she saw a brick lying in her veranda. She telephonically informed daughter of the deceased Soma Devi and narrated the whole story. Neighbourers assembled on the spot. She has admitted her statement Ext-P13 under Section 164 CrPC. In cross-examination, she has stated that she is doing the job of cleaning the utensils etc. and was doing the same job in the house of the deceased and the deceased used to pay her. The accused knew the deceased since long. At about 8.00 PM, accused expressed her desire to meet the deceased. It is not mentioned in her statement under Section 164 CrPC that she had advised the accused to go to the house of the deceased through the gate. She was called by her husband and she went back within 2-3 minutes. At about 8.00/8.15 PM, when accused was coming back from the house of the deceased, she was not feeling frightened, but in the morning at about 4.00/4.30 AM, she found the accused frightened and she was feeling breathlessness. When she saw the accused at about 2.45/3.15 AM, her clothes and hair were wet. She does not know at what time, accused went to the house of the deceased. In the morning, when the accused was leaving along with her son, she asked as to where she was going and the accused replied that she was going to Channgrain to get money from somebody. However, the same does not find mention in her statement under Section 164 CrPC. Her statement under Section 164 CrPC was recorded after about one month of the occurrence. Police accompanied her and she made the statement as per their version. She did not see the occurrence with her own eyes.

20. PW 14 Mangat Ram, has clicked photographs of the dead body of the deceased. He has stated that he went to ward no. 10, Kathua along with FSL 15 CRA No. 11/2018 team. He took photographs of the dead body of a lady and handed over the prints to SHO. He has admitted the photographs marked A to H. In cross- examination, he has stated that the bricks shown in the photographs marked B were lying outside the door in the street and the brick shown in photograph Mark-C was lying in the house of the deceased. The said brick was not lying in the veranda of the house of PW Kamlesh Kumari. When he took the photographs of the brick, its edges were not broken.

21. PW 15 Subash Chander, is also the photographer who has clicked the photographs of the proceedings at the shop of the goldsmith. He has stated that on 28.10.2012, he along with SHO and accused went to the shop of goldsmith at Govindsar. Goldsmith produced two ear rings and finger rings to the police, which were given by the accused to him. The said ornaments were identified and he took photographs of the proceedings. He has admitted the photographs Mark A to G. In cross-examination, he has stated that they reached the shop of goldsmith at about 4.00/4.30 PM. First the police went inside the shop and thereafter, the accused went there. He did not take any photograph regarding identification of ornaments by the accused and there is no photograph to reflect the entry of the accused in the shop.

22. PW 16 Chanchal Singh, is the investigating officer of the case. He has stated that on 24.10.2012, Jaswant Singh lodged an oral report, alleging inter alia that his aunt Soma Devi, who was residing all alone in her house at ward no. 10, Kathua, had been killed by somebody during the intervening night of 23rd/24th October, 2012 and her two ear rings had been stolen. He visited the place of occurrence along with team of FSL and photographer. The finger prints were lifted and photographs were taken. He had observed that some solid object had hit left side of the head of the deceased and deceased was bleeding 16 CRA No. 11/2018 profusely from ears and nose. The bed sheet, pillow and towel lying on the bed of the deceased were found blood stained. He seized and sealed the said articles. He also noticed that lock of a room near the veranda of the house was attempted to be broken. He also found a broken brick bearing Mark-MBK on the spot, used for breaking open the lock. A broken iron bolt was also lying on the spot. He seized the bolt, pieces of brick and the broken brick. The dead body of the deceased was taken into custody and was subjected to post-mortem. Clothes of the deceased were also seized and sealed. Blood sample of the deceased was also obtained and sealed. After the post-mortem, the dead body was handed over to the heirs and receipt was obtained. He got the blood stained bed sheet, towel, pillow, clothes and sample of blood resealed from the Executive Magistrate and obtained an authority letter. He recorded statements of witnesses. He questioned Mamta Rani, daughter of the deceased, Kamlesh Kumari, in whose house accused had stayed during the night of occurrence. After the questioning, he arrested the accused on the basis of suspicion and interrogated her. During interrogation, the accused made a disclosure that after killing the deceased, she robbed her ear rings and finger rings and kept the same with the goldsmith, namely, Anil Kumar. He prepared the memo of disclosure and recovered the stolen ornaments from the shop of the goldsmith. He prepared the site map of the place of recovery and also the memo of recovery. He recorded the statements under Section 161 CrPC and under Section 164-A CrPC. After investigation, offences under Sections 302/392 RPC were found established against the accused. He has admitted his signatures on the FIR (Ext-P16) drafted by him. He has also admitted the relevant documents including the site map of the place of occurrence (Ext-P16/1), the site map of the place of recovery (Ext- P16/3), seizure memo of the dead body (Ext-P1/1), seizure memo of bed sheet 17 CRA No. 11/2018 (Ext-P1/2), seizure memo of clothes of the deceased (Ext-P1/3), seizure memo of brick (Ext-P1/4), superdnama of ring (Ext-P1/5), receipt of dead body (Ext- P1/6), impression of brick (Ext-P16/6), memo of disclosure (Ext-P14), memo of recovery of ornaments (Ext-P4/1), memo of personal search of accused (Ext- P16/7) and arrest memo of accused (Ext-P16/8). In cross-examination, he has stated that first of all he went to place of the occurrence and prepared the site plan. As per the investigation, it was revealed by PW Kamlesh Kumari that accused had come to her house about 15/20 days prior to the occurrence. However, there is no such mention in the statement of PW Kamlesh Kumari, recorded under Section 164 CrPC. Besides, PW Kamlesh Kumari, her family members including her husband, son and daughter had also seen the accused in her house. He arrested the accused at about 11.30 AM. There is no document in the challan to show that murder of the deceased was committed by an assault with a brick. The brick seized by him was not stained with blood. It was confessed by the accused during interrogation that she had killed the deceased by hitting her with a brick on her head. He did not prepare any disclosure memo in this respect. It did not reveal during investigation that prior to the disclosure of the accused, somebody telephoned him from Govindsar that ornaments were lying with goldsmith Anil Kumar. He has denied the suggestion that prior to the disclosure of the accused, he was aware about the whereabouts of the ornaments. He has also denied the suggestion that prior to his proceeding to Govindsar, Anil Kumar was aware about it. He went to the place of recovery, however, he is not figuring in any of the photographs relating to the recovery. He did not send the brick to FSL. He has denied the suggestion that he has falsely implicated the accused and that the brick was seized from the veranda of PW Kamlesh Kumari.

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23. This is the crux of the prosecution evidence adduced before the trial court. The statement of the accused under Section 342 CrPC came to be recorded by the trial court, whereby appellant denied the incriminating material against her and did not prefer to lead any evidence in defence.

24. Learned trial court, having analyzed and marshalled the prosecution evidence, has convicted the appellant primarily on the grounds that appellant was last seen in the company of the deceased during the intervening night of the occurrence and the recovery and identification of the robbed ornaments of the deceased, consequent upon the alleged disclosure statement made by the appellant. Learned trial court is of the view that the circumstances established by the prosecution, unerringly point to the guilt of the appellant and fortify the inference that it was the appellant alone who killed the deceased and robbed her ornaments.

25. The appellant has questioned the impugned judgment inter alia on the grounds that learned trial court has failed to appreciate the prosecution evidence in its right perspective and prosecution has failed to establish a complete chain of circumstances leading to the only hypothesis that it was the appellant who committed murder of the deceased and robbed her gold ornaments. The appellant has also assailed the impugned judgment on the ground that the procedure in terms of Section 27 of the Evidence Act, regarding disclosure and consequent recovery of the ornaments from the shop of goldsmith has not been adhered to.

26. Having heard the rival contentions and perused the record, we have given our anxious consideration to the legal position obtaining the facts and circumstances attending the present case.

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27. It is evident from the prosecution story that there is no eye witness to the occurrence and entire case of the prosecution hinges upon the circumstantial evidence.

28. It is trite that with a view to base conviction on the basis of circumstantial evidence, the prosecution is obliged to establish all the pieces of incriminating circumstances by credible and clinching evidence and the circumstances so proved must form a complete chain of events consistent only with the hypothesis of the guilt of the accused and inconsistent with his innocence. The legal position as to how such matters are to be examined has been succinctly expounded by Hon‟ble Supreme Court in number of cases and we may gainfully refer to Varun Choudhary vs. State of Rajasthan (AIR 2011 SC 72), Raj Kumar Singh Vs. State of Rajasthan; [(2013 5 SCC 722], 2011(1) Crimes 319 (SC), 2014(i), SLJ 147 (HC), (2011) 12 SCC 545 and (2014) 3 SCC 412 and Nizam Vs. State of Rajasthan (2016) 1 SCC 550.

29. If we approach the present case with the aforesaid principle of law in mind, we find that learned trial court has predominantly relied upon following three circumstances to conclude that prosecution has succeeded to establish that it was the appellant alone who killed the deceased and robbed her gold ornaments:-

(1) that appellant and deceased were last seen together during the intervening night of 23rd/24th of October 2012, (2) the disclosure statement made by the appellant and consequent recovery of ornaments at her instance from the goldsmith, PW Anil Kumar and (3) identification of the ornaments by PW Mamta Rani, daughter of the deceased.

30. Let us discuss one by one.

Circumstance 1 20 CRA No. 11/2018

31. The first and foremost circumstance relied by the prosecution and accepted by learned trial court is that appellant/accused was last seen in the company of the deceased during the intervening night of 23 rd/24th of October 2012.

32. The law relating to the „last seen theory‟ no longer remains res integra now. The theory of last seen together, traces its genesis to Section 106 of the Evidence Act, 1872 ["the Evidence Act"], which envisages that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon the said person. The "last seen theory" is based on this principle of law and if a person is last seen with the deceased, the said person is obliged to explain as to the death of the deceased and in a case which hinges on the circumstantial evidence, if an accused fails to offer plausible explanation in discharge of the burden placed upon him in terms of Section 106 of the Evidence Act, it provides an additional link in the chain of circumstances proved against him. However, it is also significant to underline that conviction of an accused cannot be based solely on the theory of last seen together because it only provides an additional link in the chain of circumstances against the accused.

33. Let us analyze the prosecution evidence in the background of aforesaid principle of law.

34. It is the prosecution case that appellant came to the house of PW 13 Kamlesh Kumari on 23.10.2012. PW 12 Darshan Singh is husband of PW 13. Therefore, in order to establish the last seen theory, the prosecution seeks to rely upon the statements of PWs 12 and 13. As per the prosecution version, the appellant came to their house and desired to meet the deceased and it was PW 13 who took her to the house of the deceased. PW 12 Darshan Singh has stated 21 CRA No. 11/2018 that appellant came to their house and when he enquired about the purpose of her visit, he was told by his wife that appellant was on way to the house of her brother and intended to spend a night in their house. His wife took the appellant to the house of the deceased. After about half an hour, he called his wife back. His wife returned and after providing meals, his wife again went to the house of the deceased. She saw the appellant coming downstairs from the roof. The witness goes on to state that all of them including the appellant went to sleep in his house and in the morning when he woke up, he saw that appellant along with her son were leaving their house. His wife PW 13 Kamlesh Kumari has corroborated the testimony of her husband by stating that appellant came to her house at about 3.30 PM. The roof of her house and that of the house of the deceased were contiguous to each other. The appellant expressed her desire to meet the deceased. She accompanied her to the house of the deceased. However, within 5 to 7 minutes, she was called by her husband, she came back, but the appellant stayed back. The witness further stated that she again went to the house of the deceased, but found that accused was coming down the stairs and all of them including the appellant went to sleep in their house. The witness goes on to state that at about 3.15 AM, when she woke up, she did not find the accused on her bed. However, while she was engaged in her work, the appellant came to her and on being enquired by her, the appellant told her that she had gone to sleep on the roof. She has further stated that appellant woke up and left along with her son. What emerges from the statements of these two material prosecution witnesses is that though the appellant along with PW Kamlesh Kumari went to the house of the deceased, but both of them came back and the appellant slept in the house of PW Kamlesh Kumari and not in the house of the deceased. Both the prosecution witnesses PWs Darshan Singh and his wife PW 22 CRA No. 11/2018 Kamlesh Kumari, are consistent in their depositions that appellant and PW Kamlesh Kumari went to the house of deceased, after sometime PW Kamlesh Kumari was called by her husband, she came back, however, when again she was going to the house of the deceased, she found the appellant coming down the stairs and thereafter the appellant slept in the house of PWs 12 and 13. There is nothing in the prosecution evidence to suggest that appellant after staying for night in the house of PWs 12 and 13 was again seen going to the house of the deceased or seen in the company of the deceased thereafter. All what emerges from the statements of PWs 12 and 13 is that appellant was last seen in the company of PWs Kamlesh Kumari and Darshan Singh and not in the company of the deceased.

35. It appears that there is another aspect of the matter, emerging from the testimonies of PWs 12 and 13, which weighed with the trial court. PW Kamlesh Kumari has also stated that in the morning at about 4.00/4.30 AM while appellant along with her son was leaving their house, she found that appellant was frightened and short of breath. Here it is pertinent to mention that PW Darshan Singh, husband of PW Kamlesh Kumari has stated that he woke up at about 4.30/5.00 AM and appellant told him that she was leaving. It is pertinent to note that both the husband and wife saw the appellant leaving their house in the wee hours of the morning, however, while PW Kamlesh Kumari found the appellant frightened and short of breath, her husband PW Darshan Singh has not stated so. Therefore, this material contradiction in the testimonies of material witnesses of the prosecution, who happened to be husband and wife and claimed to have a witnessed the appellant leaving their house after spending a night, is fatal to the prosecution. We do not concur with the conclusion drawn by learned trial court that since the appellant visited house of the deceased few hours before 23 CRA No. 11/2018 her dead body was found in her room and there is no material on the record to show that anybody else had gone to the house of the deceased, therefore, prosecution had succeeded to prove that appellant was last seen in the company of the deceased. Whether anybody else entered or sneaked into the house of the deceased during the intervening night, after return of the appellant remains an unsolved mystery. The appellant, as already stated, was last seen in the house of PWs Kamlesh Kumari and her husband Darshan Singh and not in the company of the deceased.

36. It is pertinent to note that it is only after the prosecution succeeds to establish that a person was last seen in the company of the deceased, that the burden shifts upon the said person to explain as to the death of the deceased and if an accused fails to offer plausible explanation in discharge of the burden placed on him under Section 106 of the Evidence Act, it provides a vital link in the chain of circumstances proved against him. Reference in this regard may be had to Nizam (supra), whereby Hon‟ble Supreme Court has held as under:-

"Last seen theory" is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. But, it is not prudent to base conviction solely on "last seen theory". Such theory should be applied taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long it would be unsafe to base conviction on „"last seen theory". It is safer to look for corroboration from other circumstances and evidence adduced by the prosecution."

(Emphasis Supplied)

37. To avoid multiplication of authorities, reference in this respect may also be had to State of Rajasthan vs. Kashi Ram; (2006) 12 SCC 254, 2011 (1) Crimes 319 (SC) and 2016 (1) Crimes 94 (SC).

38. Since prosecution in the present case has failed to prove that appellant was last seen in the company of the deceased, burden does not shift upon the appellant to explain the circumstances as to the death of the deceased. Learned 24 CRA No. 11/2018 trial court has erred in relying upon the statement of the appellant under Section 342 CrPC to observe that appellant in reply to this circumstance has only stated that she does not enjoy good relations with PW Kamlesh Kumari but there has been no such suggestion from the defence during cross-examination of PW Kamlesh Kumari nor any evidence led by the appellant in defence to prove the said allegation.

39. For the foregoing reasons, we have no doubt in our mind that prosecution has failed to establish the first circumstance that appellant was last seen in the company of the deceased.

Circumstance (2)

40. The prosecution next seeks to rely upon the disclosure statement alleged to have been made by the appellant and the consequent recovery of the ornaments from the goldsmith PW Anil Kumar in terms of Section 27 of the Evidence Act.

41. It is the prosecution case that the appellant during investigation, while in custody of the police made a disclosure that she handed over the gold ornaments allegedly robbed from the house of the deceased to goldsmith-PW Anil Kumar and the appellant subsequently led the investigating agency to the recovery of the aforesaid ornaments.

42. It is settled law that any confession made by an accused while in the police custody is inadmissible in evidence in terms of Sections 25 and 26 of the Evidence Act. Section 27 of the Evidence Act is an exception to the aforesaid prohibitions imposed under Sections 25 and 26 and enables certain statements made by a person in the police custody to be admissible in evidence. Section 27 of the Evidence Act provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in 25 CRA No. 11/2018 custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered may be proved. Notably, the conditions precedent for applicability of Section 27 of the Evidence Act are that there must be discovery of fact in consequence of the information received from a person accused of any offence, the discovery of said fact must be deposed to, the accused must be in the police custody at the time of receipt of the information and only so much of the information as it relates to discovery of the fact thereby disclosed, is admissible in evidence.

43. Let us analyze the prosecution evidence with the aforesaid legal background in mind.

44. PWs Surinder Singh and Mamta Rani are witnesses to the memo of disclosure Ext-P4. PW Mamta Rani is daughter of the deceased and PW Surinder Singh is her son-in-law. Both the witnesses are consistent in the depositions that when they went to the police station on 28.10.2012, the appellant was being questioned in the room of the SHO, where she admitted that she had given two ear rings and two other rings to a goldsmith PW Anil Kumar and could recover the ornaments from the said goldsmith. A document in this respect was prepared. PW Chanchal Singh, the investigating officer has also corroborated the testimonies of the daughter and son-in-law of the deceased regarding the disclosure and consequent recovery of the ornaments. However, it is pertinent to mention that he has stated in cross-examination that after they returned from the place of recovery, the memo of disclosure and memo of recovery were prepared in the police station and she signed the said documents after they returned from the shop of the goldsmith. In this view of the matter, a plea was raised by the defence before the trial court that since the disclosure of the appellant, as per the testimony of PW Mamta Rani was recorded after the 26 CRA No. 11/2018 recovery of ornaments from the shop of the goldsmith, therefore, it does not satisfy the requirements of Section 27 of the Evidence Act. Pertinently, PW Anil Kumar, the goldsmith from whose shop the ornaments came to be recovered by the investigating officer at the instance of the appellant, has stated that his uncle Avtar Singh made a telephone call to the police station and after sometime police came to him and recovered the ornaments. Another prosecution witness, PW Arjun Singh has also stated that his father made a telephone call to the police station, whereafter, police came over there, though in cross-examination, he stated that the phone call was not made by his father in his presence. Learned trial court discarding the testimonies of the aforesaid witnesses is of the opinion that merely because PW Mamta Rani stated in her cross-examination that she signed the memo of disclosure after returning from the place of recovery, does not mean that the disclosure statement was not recorded prior to proceeding to the place of recovery, particularly when sequence of disclosure statement and recovery proceedings have been vividly described by PW Surinder Singh and the investigating officer SHO Chanchal Singh. We have failed to subscribe to the opinion of learned trial court for the reason that since PW Mamta Rani, who happens to be daughter of the deceased specifically admitted in her cross- examination that memo of disclosure was prepared by the investigating officer after they returned from the shop of the goldsmith, after recovery of the ornaments. Though PW Arjun Singh admitted in his cross-examination that his father did not make any telephone call in his presence, however, PW Anil Kumar, goldsmith also stated that police came for the recovery of the ornaments after his uncle Avtar Singh telephonically informed the police regarding the ornaments lying with PW Anil Kumar. It is also pertinent to mention that the goldsmith, PW Anil Kumar has also stated that when police came to his shop, 27 CRA No. 11/2018 he handed over the ornaments to the police out of fear. He has also stated that he got his statement recorded in the court at the instance of police. A cumulative perusal of the statements of aforesaid witnesses i.e. PWs Surinder Singh, Mamta Rani and Anil Kumar would indeed indicate that the investigating agency recorded the disclosure statement of the appellant after recovery of the ornaments from the shop of goldsmith PW Anil Kumar and since testimonies of the aforesaid material witnesses, regarding the alleged disclosure made by the appellant and the consequent recovery and seizure of the ornaments are discrepant, the benefit goes in favour of the accused.

45. Another aspect of the matter, which has escaped the attention of learned trial court is that the investigating agency, in its wisdom got the recovery proceedings photographed to fortify its case. PW 15 Subash Chander, is the photographer, who has clicked the photographs of the recovery proceedings in the shop of the goldsmith, PW Anil Kumar. PW Subash Chander, has stated that it was the police who first went inside the shop of the goldsmith and thereafter accused went there. The photographer has specifically stated that he did not take any photograph regarding identification of ornaments by the appellant and there is no photograph to reflect entry of the appellant in the shop. If the investigating agency in its wisdom decided to get the recovery proceedings photographed, it is surprised to note that the photograph regarding entry of the appellant/accused in the shop of goldsmith is missing. It only goes on to establish that it is not the appellant who led the investigating agency to the recovery of the gold ornaments alleged to have been robbed from the deceased.

Circumstance (3)

46. This takes us to the identification of gold ornaments by daughter of the deceased PW Mamta Rani.

28 CRA No. 11/2018

47. Both PW 4 Mamta Rani and her husband PW 3 Surinder Singh have deposed that ornaments recovered from the shop of the goldsmith at the instance of the accused were identified by them. However, as already stated, the investigating agency, in the present case, got recovery of the ornaments and its identification photographed and PW 15 Subash Chander, the photographer, who has clicked the photographs of the proceedings, has stated that he did not take any photograph regarding identification of the ornaments. Be that as it may, since it has already been observed that prosecution has failed to prove the alleged disclosure made by the appellant and consequent recovery of the ornaments in accordance with the provisions of Section 27 of the Evidence Act, the identification of ornaments, would otherwise pale into significance. Other discrepencies

48. There are other aspects of the case which appear to have been glossed over by learned trial judge. As per the prosecution case, the weapon of offence, brick recovered from the house of the deceased was found broken on its edges and the said brick and broken pieces of brick came to be distinctly seized by the investigating agency, during investigation. PWs 1 and 2, Jaswant Singh and Karnail Singh are witnesses to the seizure memo of the brick. PW 1 Jaswant Singh has fortified the prosecution case by stating that the brick recovered from the spot was broken on its edges. PW 16 Chanchal Singh, the investigating officer has also stated in the trial court that he seized the broken brick and pieces of brick. It is pertinent to mention that the aforesaid weapon of offence, the brick was produced before the Board of Doctors who conducted autopsy on the dead body of the deceased. PW 7 Dr. Vasna Devi is one of the Members of the said Board. Though, she stated that the injuries mentioned in the post-mortem report of the deceased could be caused by such brick, however, in cross- 29 CRA No. 11/2018 examination, she has stated that it is not mentioned in the post-mortem report that a corner of the brick was broken. As already discussed, the investigating agency in order to fortify its case, got the scene of occurrence photographed. PW 14 Mangat Ram is the photographer, who has clicked the scene of occurrence and the recovery of articles from the spot. He has clearly deposed in his testimony that when he took photographs of the brick, its edges were not broken. In our opinion, the aforesaid contradictions in the testimonies of the prosecution witnesses is another staggering circumstance to dislodge the prosecution story.

49. Another aspect of the matter which cannot be lost sight of is contradictions in the testimonies of the prosecution witnesses regarding injuries on the person of the deceased. The autopsy on the dead body of the deceased was conducted by a Board of Doctors and as per the autopsy report, the deceased at the time of post-mortem was bleeding from mouth and left nostril. Intriguingly, none of the prosecution witnesses have stated about the bleeding from the mouth of the deceased. On the contrary, PW 1, Jaswant Singh, the complainant and a witness to the scene of occurrence has stated that injury on the head of the deceased was visible and deceased was bleeding from ears and nose. Similarly, son-in-law of the deceased, PW Surinder Singh has also noticed the blood oozing out from the right ear and nose of the dead body. The daughter of the deceased PW Mamta Rani has only stated that there was bleeding from the nose of her mother, therefore, the material prosecution witnesses, who happen to be close relatives of the deceased, have given different versions regarding injuries on the person of the deceased, which is contrary to the post- mortem report.

30 CRA No. 11/2018

50. Having regard to what has been observed and discussed above, the prosecution evidence is found not only legally flawed but discrepant on material aspects of the case. A studied appreciation of the prosecution evidence, discussed hereinabove, leaves no room for doubt that prosecution has badly failed to prove that appellant was last seen in the company of the deceased. The disclosure statement attributed to the appellant and the consequent recovery of the ornaments, allegedly stolen from the person of the deceased, is not in accordance with the provisions of Section 27 of the Evidence Act. Therefore, the prosecution has failed to establish a complete chain of circumstances consistent with hypothesis of the guilt of the accused.

51. For the foregoing reasons, we find merit in the present appeal. Hence, the present appeal is allowed and the impugned judgment of conviction and order of sentence passed by learned trial court are set-aside. The appellant is relieved of her bail bonds.

52. The trial court record be returned forthwith.

                                    (Rajesh Sekhri)                   (Sanjeev Kumar)
                                        Judge                              Judge

JAMMU
27.09.2024
Abinash

                                     Whether the judgment is speaking? Yes
                                     Whether the judgment is reportable? Yes

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