Jammu & Kashmir High Court
State Of J&K; vs Sukhdev Raj And Another. on 17 August, 2017
Bench: Alok Aradhe, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acq. Appeal No.62/2005
Date of order: 17 .08.2017.
State of J&K Vs. Sukhdev Raj and another.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant (s) : Mr. S.S.Nanda, Sr. AAG.
For the Respondent(s) : Mr. Roop Lal, Advocate.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
Alok Aradhe-J
1. This appeal has been filed against the judgement dated 14.07.2005 passed by the trial Court by which respondents have been acquitted of the offence under Section 302/34 RPC.
2. Briefly stated, the prosecution story is that on 11.01.2002, an information was received in the police station, Nagrota that an unidentified female body was found lying in Kala Kupar Nullah under NHW road under suspicious circumstances. On receipt of the aforesaid information, proceeding under Section 174 of the Code of Criminal Procedure was initiated and on an enquiry a telephone number was found from the dead body. The relatives of the deceased were informed, who reached on spot and identified the dead body, which was found to be of Jyoti Devi, who was employed as Anganwari Worker and was missing since 10.01.2002. The dead body was taken into possession by the police for conducting the postmortem. During enquiry on 12.02.2002, one Jagdish Raj, the brother of the deceased lodged a written report, based on which FIR under Cr. Acq. Appeal No.62/2005 Page 1 of 7 Section 302/34 RPC was registered. During the course of investigation, the statements of the witnesses under Section 161 Cr. P.C. were recorded. It was found that respondent No.1, Sukhdev Raj had married deceased, Jyoti Devi about 7/8 years ago and no issue was born out of the wedlock, the respondent No.1 wanted to contract second marriage. The respondent No.1 was an employee of Railways and was posted at Patiala, whereas the deceased was serving and residing at Pacca Talab, New Plot.
3. It is the case of the prosecution that respondent conspired with respondent No.2, namely, Joginder Pal and made a plan to eliminate the deceased, Jyoti Devi. As per the prosecution story, accused Sukhdev Raj came from Patiala on 06.01.2002 to his in-laws house at Pacca Talab and went to the house of his friend Joginder Pal for giving final shape to his plan. On 07.01.2002 after preparing the murder plan with his friend Joginder Pal, Sukhdev Raj went to Patiala and on 09.01.2002 came back to Jammu be train and on 10.01.2002 reached at the shop of Joginder Pal at Smailpur and after selecting the place of occurrence, both the respondents went to By-pass, Nagrota. At that time, deceased Jyoti Devi was on duty at Anganwari Centre at By-pass, Nagrota. During investigation it was found that Sukhdev Raj sent Joginder Pal at Udhampur and told that he should wait for him and his wife at Udhampur Bus stand and they will reach Udhampur on motorcycle. The husband of the deceased, Sukhdev Raj told his wife Jyoti Devi to accompany him on motorcycle as they have to see a girl for his friend, namely Joginder Pal. Whereupon, the deceased accompanied the accused Sukhdev Raj and on reaching at Udhampur they met Joginder Pal and then all the three went to Salathia Hotel, Udhampur. After spending some time, proceeded towards Jammu, Joginder Pal in a matador and Sukhdev Raj and deceased Jyoti Devi on motorcycle.
4. It is the case of the prosecution that Joginder Pal after covering some distance on matador alighted from the matador and stood on the road and Cr. Acq. Appeal No.62/2005 Page 2 of 7 in the meanwhile Sukhdev Rah ad his wife reached on the spot. Thereupon, Joginder Pal drove the motorcycle and Sukhdev Raj and deceased Jyoti Devi were riding as pillion riders and then they went to Kala Kuppar , where accused Joginder Pal made murderous assault on the deceased and then Joginder Pal and Sukhdev Raj pushed the deceased , fell down in the Nallah and died due to fall. The accused after murdering the deceased came to Jammu on motorcycle. Sukhdev Raj boarded the train and left for Patiala and Joginder Pal went to his house on motorcycle. The police after completing the investigation, filed charge- sheet under Section 302/34 RPC against the respondents.
5. The prosecution in order to prove its case, examined Jagdish Raj, Karnail Singh, Sanjay, Mst. Naresh Kumari, Janki Nath, Daljit Singh, Jaswant, Veena Kumari, Chander Rekha, Darshan Kumar, Rani Devi, Chaman Lal, Manjit Singh, Shahne, H.C.Bhagat, Dr. K.K.Raina, Dr. Vijay Singh, L.D.Bhagat, Mohd. Iqbal and Dr. Jagdev Singh. It is pertinent to mention here that the entire case of the prosecution is based on circumstantial evidence against the respondents. The trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondents of the offence alleged against them.
6. Learned Senior AAG appearing for the appellant submitted that the trial Court has failed to appreciate the material brought by the prosecution on record in correct perspective, which has resulted in erroneous findings and consequent judgment. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial Court and has submitted that the trial Court based on the meticulous appreciation of evidence on record has recorded the findings, which by no stretch of imagination can be said to be perverse or based on no evidence.
7. We have considered the submissions made by learned counsel for the parties and have perused the record. As already stated supra, the entire Cr. Acq. Appeal No.62/2005 Page 3 of 7 case of the prosecution against the respondents is based on circumstantial evidence. The first circumstance, which has been relied by the prosecution against the respondents, is that the deceased did not die a natural death by accident but there were injuries on the person of the deceased. The second circumstance relied by the prosecution is that the relation between the deceased and her husband, Sukhdev Raj were strained and to prove the same one Jagdish Raj, Naresh Kumari and Chander Rekha were examined as witnesses. Jagdish Raj is brother of the deceased, whereas Naresh Kumari is sister-in-law of the deceased. It is also pertinent to note that Chander Rekha is sister of the deceased. However, their statements have not been corroborated by any independent witness and the prosecution has failed to attribute any motive to the respondents for commission of the offence in question.
8. The third circumstance relied by the prosecution is that both the accused persons were seen together on 10.01.2002 at Satwari proceeding towards Jammu and this fact has been proved by the prosecution witness namely, Jaswant Raj. In the cross-examination, the aforesaid witness has stated that he did not inform the said fact to the police but he is disclosing the said fact for the first time in the Court. From the careful scrutiny of the statement of PW- Jaswant Raj, it is evident that his statement suffers from various infirmities and he is an interested person as he is working in the shop of the brother of the deceased. In the absence of corroboration by any independent witness, version of the aforesaid witness cannot be accepted.
9. The fourth circumstance relied by the prosecution is that the respondent Sukhdev Raj and deceased Jyoti Devi were last seen together near petrol pump at Nagrota and this fact has been proved by the statement of Veena Kumari. However, from the perusal of the cross-examination of the aforesaid witness, it is evident that she has stated that she is not sure and Cr. Acq. Appeal No.62/2005 Page 4 of 7 confident that the person, who was driving the motorcycle was infact Sukhdev Raj, husband of the deceased. In her cross-examination, she has further stated that person, who was driving the motorcycle was bearing helmet, therefore, she cannot say with certainty that the person, who was bearing helmet sitting on the motorcycle with deceased Jyoti Devi was infact her husband. Therefore, the prosecution has failed to prove the theory of last seen together.
10. The 5th circumstance relied by the prosecution is that on enquiry it was found that accused Sukhdev Raj was absent from duty in Patiala on 10.01.2002. However, the prosecution has produced photocopy of the attendance register, which is inadmissible in evidence as the original attendance register was not produced. The prosecution has also failed to produce the witnesses, who were working with the respondent Sukhdev Raj at Patiala. The person, who prepared the certificate with regard to the absence of respondent No.1 from Patiala was also not examined by the prosecution. Therefore, the certificate of absence of respondent No.1 from Patiala at the relevant time was not found to be proved. It is also pertinent to mention that Yash Pal, an employee of the Railways, cited as prosecution witness in the challan to prove the absence of respondent No.1 from Patiala was not produced in the Court. Therefore, it is evident that the prosecution has failed to prove the absence of respondent No.1 from Patiala.
11. The sixth circumstance relied by the prosecution is that the accused Joginder Pal has made a disclosure statement during the custody in police that he concealed weapon of offence near the place of occurrence. It is pertinent to mention here that the witnesses to the aforesaid recovery memo, who are real brothers of the deceased namely, Jagdish Raj and Karnail Singh. PW-Jagdish Raj in his statement has stated that on 01.03.2002, Joginder Pal made a statement to the police at Police Station, Cr. Acq. Appeal No.62/2005 Page 5 of 7 Nagrota that he has kept the 'kirch' at the place of occurrence and he can get the same recovered, whereas PW-Karnail Singh has stated that Sukhdev Raj went on spot, recovered the 'kirch' and handed over to the police. Hence, there are contradictions in the testimony of the aforesaid witnesses, who are even close relatives of the deceased. It is also pertinent to note that the recovery of the weapon of offence has been made from an open place, which is accessible to the public in general.
12. It is pertinent to mention her that as per the prosecution story, the accused persons had their meal at Salathia Hotel, Udhampur where two waiters Darshan Kumar and Bishan Dass attended the accused persons and deceased Jyoti Devi. PW-Darshan Kumar has stated that the accused did not come to his hotel and he did not identify the accused. Thus, , from the above narration of facts, it is crystal clear that the prosecution has failed to prove the chain of circumstantial evidence in order to bring home the guilt against the respondents.
13. The trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others v. State of Rajasthan; (2004) 13 SCC 134, Vijay Kumar v. State by Inspector General; (2009) 12 SCC 629 and Upendra Pradhan v. State of Orissa; (2015) 11 SCC 124.
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14. From perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this Cr. Acq. Appeal No.62/2005 Page 6 of 7 acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
Jammu
17.08.2017
Vinod.
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