Jammu & Kashmir High Court
State Of J&K vs Bhushan Kumar And Others ... on 16 December, 2020
Author: Sanjay Dhar
Bench: Rajesh Bindal, Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(THROUGH VIRTUAL MODE)
Reserved on:08.12.2020
Pronounced on: 16 .12.2020
SLA 32/2019
CONCR 28/2019
CRA 27/2019
State of J&K ...applicant(s)
Through: - Mr. Aseem Sawhney AAG.
Vs.
Bhushan Kumar and others ...non-applicant(s)
Through: - None
CORAM:
HON'BLE MR. JUSTICE RAJESH BINDAL, CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
SANJAY DHAR,J.
1 The applicant/State seeks leave to file appeal against the judgment dated 12.03.2018 passed by the learned Principal Sessions Judge, Kathua (hereinafter referred to as 'the trial Court') in File No.12/2015/Sessions whereby the non-applicants/accused were acquitted of the charges for offences under Sections 302 read with 34 RPC.
2 Briefly stated the case of the prosecution is that on 06.10.2003, a telephonic information, to the effect that dead body of deceased Subash 2 SLA 32/2017 Chander was lying on the road at Drank Morh on Dhar-Phenter road, was received by the police. It swung into action, took the dead body of the deceased in custody and after getting its post-mortem conducted, the police found that the death of the deceased was unnatural. Proceedings under Section 174 of J&K Cr.P.C were initiated and upon conclusion of the inquest proceedings, FIR No. 71/2015 for offences under Sections 302/34 RPC was registered at Police Station, Billawar. 3 After conducting investigation of the case, it came to the fore that on 18.06.2015, the deceased and the accused had gone to Banoteto watch a wrestling event. On their way back, the accused and the deceased sat down at a secluded place at Rampur Rasool and enjoyed their drink over there. A scuffle took place between the deceased and the accused during which accused Bansi Lal caught hold of the deceased and accused Bhushan Kumar hit the deceased on his head with a stone, as a result of which, the deceased fell down in gorge and died on the spot. After committing the crime, the accused carried the dead body of the deceased on their scooter for about 9/10 kilometres and dumped the same at village Pallan near Drank Morh. Offences under Sections 302/34 RPC were found established against the accused and charge- sheet was laid before the trial Court. 4 On 29.10.2005, charges for offences under Sections 302/34 RPC were framed against the accused, who denied the charges and claimed to be tried. In support of the charges, the prosecution examined as many as 19 witnesses. The incriminating circumstances, appearing in the prosecution evidence, were put to the accused and their statements 3 SLA 32/2017 under Section 342 J&K Cr.P.C were recorded. The accused did not lead any evidence in defence. After hearing the parties, the learned trial Court came to the conclusion that the prosecution has failed to establish the charges against the accused and accordingly, they were acquitted of the charges vide the impugned judgment.
5 We have heard Mr. Aseem Sawhney learned AAG and perused the record.
6 There is no direct evidence in the instant case and the whole case of the prosecution is based upon circumstantial evidence. It is settled law that in a case based solely upon circumstantial evidence, it is incumbent upon the prosecution to establish beyond reasonable doubt all the circumstances from which the conclusion of guilt is drawn and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
7 In the instant case, the prosecution has based its case on the following circumstances:
(i) The accused and the deceased were last seen together.
(ii) Disclosure statement of accused Anil Kumar pursuant to which the weapon of offence (stone stained with blood) was recovered.
(iii) Motive for the crime was previous enmity between the accused and the deceased.4 SLA 32/2017
8 So far as the first circumstance is concerned, the prosecution has rested its case on the testimonies of PW-3, PW-13 & PW-14. Though PW-3, mother of the deceased and PW-13, wife of the deceased have in their statements deposed that they had received a phone call from the deceased stating that the deceased was in company with accused Anil Kumar, but no such statement was made by these witnesses at the time when their statements under Sections 164-A Cr.PC were recorded before the Magistrate. Thus, these witnesses have made material improvements in their statements recorded before the Court. This part of their testimonies has rightly been disbelieved by the learned trial Court while appreciating the evidence.
9 Another witness to the last seen theory is PW-14 Tirath Ram. The said witness though, in his examination-in-chief stated that on 18.06.2015 at about 9.30/10.00 p.m. he had seen the deceased sitting on a scooter along with accused, yet in his cross-examination, he has admitted that he could not recognize the fourth person riding on the scooter because it was dark at that time. He has also stated that the faces of the persons riding on the scooter were covered. The statement of the said witness, though a material witness, was recorded by the police after more than one month after the occurrence despite his availability. Thus, the testimony of this witness, being unworthy of credit, does not establish the last seen theory.
10 The other two witnesses to this circumstance PW-10 Munish Kumar and PW-11 Kewal Kumar, the owner and cleaner of the eatery point where the deceased and the accused are alleged to have consumed 5 SLA 32/2017 liquor and mutton on their way back, have turned hostile and resiled from their statements made to the police.
11 In the face of the aforesaid nature of evidence, the trial Court has rightly concluded that the last seen theory propounded by the prosecution has not been established.
12 The other circumstance relied upon by the prosecution is the disclosure statement of accused Anil Kumar and recovery of weapon of offence pursuant thereto. Although the witnesses to the memo of recovery and memo of disclosure have deposed about the correctness of both these memos, yet the FSL report containing the opinion with regard to the origin of blood on the weapon of offence (stone) has been withheld by the prosecution. Thus, it has not been established that the blood on the weapon of offence was that of the deceased. Besides this, the weapon of offence is proved to have been recovered from an open area accessible to everybody. In these circumstances, mere recovery of stone at the instance of one of the accused is of no consequence. 13 So far as the motive for the crime is concerned, the same assumes great significance in a case which is based upon circumstantial evidence. In the instant case, the prosecution has not led any evidence to prove that there was any previous enmity between the accused and the deceased which could have triggered the commission of crime by the accused.
6 SLA 32/2017
14 In view of the aforesaid circumstances, the learned trial Court has rightly disbelieved the case of the prosecution and acquitted the accused of the charges levelled against them.
15 The law does not allow the State to file an appeal against an order of acquittal under Section 417CrPC. The State has to seek leave to file an appeal. In the instant case, we do not find any ground to interfere with the order of acquittal. The present application seeking leave to file an appeal against an order of acquittal is without any merit. The same is, accordingly, dismissed.
CONCR 28/2019 & CRA 27/2019
In view of the order passed in SLA No. 32/2019 dismissing the application for leave to appeal, the condonation application as well as the main appeal also stands dismissed.
(SANJAY DHAR) (RAJESH BINDAL)
JUDGE CHIEF JUSTICE (ACTING)
Jammu
16.12.2020
"Sanjeev"
Whether the order is speaking: Yes
Whether the order is reportable: Yes/No
SANJEEV KUMAR UPPAL
2020.12.16 13:39
I attest to the accuracy and
integrity of this document