Jammu & Kashmir High Court
State Of J&K; vs Naresh Kumar And Ors. on 3 August, 2018
Bench: Tashi Rabstan, Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 30/2006 c/w CRAA No. 04/2008
Date of order: 03.08.2018
State of J&K vs. Naresh Kumar and others
c/w connected matter
Coram:
Hon'ble Mr Justice Tashi Rabstan, Judge,
Hon'ble Mr Justice Sanjay Kumar Gupta, Judge.
Appearance:
For the Appellant(s) : Mr. Ravinder Gupta, AAG.
For the Respondent(s) : Mr. Sudershan Sharma, Advocate.
: Mr. Rakesh Sharma, Advocate.
i) Whether approved for reporting in
Law journals etc.: Yes/No
ii) Whether approved for publication
in press: Yes/No
Sanjay Kumar Gupta-J
1. These two appeals are directed against the judgment and orders dated 23.11.2005 and 15.10.2007 passed by the Sessions Judge, Udhampur in File No. 38/Sessions and 62/Sessions respectively, acquitting the appellants of the charge under Section 302/34 RPC. The case arose out of FIR No. 64/2002 registered at Police Station Rehmbal.
2. At the outset, it would be appropriate to mention here that after filing of the charge sheet, the trial was concluded against two of the accused persons as the third accused, namely, Naresh Kumar, absconded and was proceeded under Section 512 Cr.P.C. The charge was accordingly framed against the other two accused persons under Sections 302/34 RPC and 4/25, 5/25 Arms Act and they were accordingly tried. After their acquittal vide order and judgment dated 23.11.2005, the absconding accused, Naresh Kumar surrendered before the trial Court and he was separately CRAA Nos. 30/2006 and 04/2008 Page 1 of 12 tried and vide judgment and order dated 15.10.2007 he too was acquitted of the charges. The State has preferred CRAA No. 30/2006 against the judgment and order dated 23.11.2005, acquitting two of the accused persons and CRAA No. 04/2008 has been preferred against the acquittal order dated 15.10.2007 acquitting third accused, hence the two acquittal appeals.
3. The persecution case, as pleaded in the challan, is that on 19.08.2002 information was received at Police Station Rehmbal at 7 PM that two non-Sikh and one Sikh persons came on a motor cycle bearing Registration No. JK02G-6798 and attacked one Gani Ahmed son of Hakim Din, who was sitting in the shop of one Sham Lal at Kehmbal Danga. One of the persons fired whereas the others inflicted sharpe edged weapon injuries on the person of Gani Ahmed due to which he was seriously injured and succumbed to the injuries on spot. After registration of the FIR the Investigating Officer visited the spot of occurrence where the dead body of Gani Ahmed was lying in a pool of blood. The site plan was prepared and after completing the formalities the dead body was sent for the post-mortem. The prosecution case was that the accused persons have attacked Gani Ahmed at the shop of Sham Lal where he was purchasing cloth for his wife along with his minor child. During the investigation it was found that accused Naresh Kumar alias Billa entered the shop of Sham Lal whereas the other two accused persons kept waiting outside and Gani Ahmed was dragged by Naresh Kumar out of the shop, the other accused persons inflicted Kirch blow on the person of Gani Ahmed and accused Naresh Kumar was alleged to have fired at him. The wife of the deceased, namely, Parveen Akhtar continued to raise hue and cry for help but nobody intervened. It was the further case of the prosecution that after accomplishing their job, i.e. killing Gani Ahmed the accused persons fled away from the place of occurrence in a Matador CRAA Nos. 30/2006 and 04/2008 Page 2 of 12 No. JK02E- 4259 and scooter No. JK02N-2023, by leaving the motor cycle bearing registration No. JK02G-6798 on spot, which were seized during investigation.
4. After investigation was completed the Challan was presented against two accused persons, as the third accused remained absconding as stated above. The two respondents were charged and after they claimed innocence, the trial against them ensued.
5. It would be appropriate to mention here that during the pendency of these appeals, one of the respondents, namely, Yash Pal alias Yashu has expired on 14.09.2008 and by order dated 19.07.2018 this Court had directed that his name be deleted from the array of the respondents.
6. At the first instance, we will be considering CRAA No. 30/2006 which has been preferred against the order of acquittal dated 23.11.2005 insofar as respondent- Jatinder alias Goldi is concerned. The prosecution listed as many as 30 witnesses; however, 26 out of them were examined.
7. Court below after appreciating the evidence came to conclusion that all materials witnesses have not supported the prosecution version and presence of eye witness Parveen Akhta, the wife of deceased, was disbelieved, so her statement was not relied.
8. We have considered the rival contentions. The principles to be adopted by the Appellate Court in appeals against acquittal have been analyzed by Hon‟ble the Supreme Court in the decisions reported in (2003) 8 SCC 180, State of Rajasthan v. Raja Ram, (2009) 12 SCC 629 Vijay Kumar v. State, (2015) 11 SCC 124, Upendra Pradhan v. State of Orissa and. In State of Rajsthan v. Raja Ram ( supra) Hon‟ble the Supreme Court has observed thus:
CRAA Nos. 30/2006 and 04/2008 Page 3 of 12"Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not......."
9. The brief resumes of prosecution witnesses reads as under:-
PW-01, Mohd Ishfaq stated that he has not made any statement before the Police that the accused persons have killed Gani Ahmed. On cross examination he has stated that when he reached at Kehmbal Danga, he saw that the dead body of Gani Ahmed was lying on road and 30/40 persons had gathered there. PW-2 Puran Chand stated that he is running a Kiryana shop at Kehmbal Danga and he had seen the dead body of Gani Ahmed outside the shop of Sham Lal. He stated that he does not know the accused persons or the deceased Gani Ahmed. His shop is adjacent to the shop of Sham Lal. When he came out of his shop he saw that wife of deceased was crying there. He further stated that police had visited the spot of occurrence. PW-3 Sham Singh stated that he does not know the accused persons nor had he seen them earlier. He runs a shop at Kehmbal Danga and about 5/6 months ago Gani Ahmed had come to his shop at about 6 p.m along with his wife for purchasing cloth. After purchasing cloth both of they were sitting outside the shop and he had gone to fetch cigarettes from the other shop when he heard hue and cry CRAA Nos. 30/2006 and 04/2008 Page 4 of 12 due to bang, which he though, had been caused by breaking of a soda bottle. He returned after 15 minutes and saw that dead body of Gani Ahmed was lying on the spot. He had not seen anybody killing Gani Ahmed. He was declared hostile and was, according cross examined. On his cross-examination he stated that the deceased came to his shop for purchasing cloth for the first time. Police had recorded his statement during night but he had not stated that the offence was committed by the accused persons. He stated that about 400/500 people had gathered on the spot after noise was raised and dead body of Gani Ahmed fell there. At that time the wife of the deceased was present and she was crying. He has not seen the accused persons even prior to the occurrence. He stated that it was wrong to suggest that he was making a false statement due to fear. He further stated that dead body of Gani Ahmed was lying at a distance of 2/3 sft. He stated that the shop of Puran Chand is adjacent to his shop but he was not present at that time. PW-4 Hans Raj stated that he does not know the accused persons. He stated that he had heard that Gani Ahmed was killed at Kehmbal Danga near the shop of Sham Singh. He too was declared hostile and was, accordingly cross examined by the prosecution, on which he stated that though police had visited the place of occurrence but his statement was not recorded. He stated that he does not know that the accused persons had killed Gani Ahmed and ran away towards Thathi. On cross-examination by the defence he stated that he had even till date not knows that who had killed the deceased Gani Ahmed.
PW-5 Vijay Kumar also stated that he does not know the accused persons. He runs a shop at Kehmbal Danga and is a deaf person. He denied having any knowledge about the occurrence. He further stated that somebody was killed in front of the shop of Sham Singh but he does not who was killed and by whom. Another prosecution witness, PW-6 CRAA Nos. 30/2006 and 04/2008 Page 5 of 12 Hem Raj stated that he runs a radio mechanic shop at Kehmbal Danga bazaar. He stated that he knew the deceased but he does not know the accused persons. He stated that about 5/6 months ago 5/6 persons had attacked the deceased but he does know them. He stated that some police constables were already present at the place of occurrence on account of patrolling duty. He stated that police had not recorded his statement. He too was declared hostile. On his cross examination by prosecution he stated that he does not know as to whether the deceased was accompanied by his wife at the time of occurrence. He denied the narration of his statement recorded by police under Section 161 Cr.P.C. He further stated that at the time of occurrence a good number of people had gathered at the place of occurrence. On his cross examination by the defence, he stated that the place of occurrence is a road crossing and matadors ply for three different routes from there. One Pawa agent operates the matadors. He stated that even till date he does not know as to how the deceased Gani Ahmed had died. PW-7 Raj Kumar stated that he know the accused persons. On 19.08.2002 at about 7 p.m he was standing by his matador at Kehmbal Danga and heard noise coming from the shop of Sham Lal. He saw that 5/6 persons were beating the deceased but he does not know them. This witness was also declared hostile and on cross examination by the prosecution the witness stated that the police had neither recorded his statement nor visited the place of occurrence in his presence. He had heard the sound of a bang (cracker). He stated that he do not know as to which side those persons had escaped after the commission of the crime. He stated that he had seen the deceased lying in a pool of blood but he was not knowing as to whether he had died or was still alive. On cross examination by the defends he stated that the accused persons were not present there when he reached at the place of occurrence. He stated that Veeru was CRAA Nos. 30/2006 and 04/2008 Page 6 of 12 accompanying him and 25/30 persons were already present there. PW-8 Arif Hussain stated that he is the driver of Metador No. JK 02E 4259 which was seized by police. He stated that police had obtained his signatures on a blank paper-sheet. He stated that police had recorded his statement and he had deposed that 4/5 persons have escaped in his Metador and sped away Thathi, but none of the accused persons were amongst them. This witness was also declared hostile and on his cross examination he stated that he is making a true statement. On cross- examination by defends he stated that the accused persons were neither his vehicle at the time of occurrence nor had he seen them. PW-9 Kewal Krishan stated that Scooter bearing No. JK02N-2023 belongs to his cousin brother. On 19.08.2002 some boys had taken the scooter. This witness was also declared hostile on cross-examination and stated that the contends of his statement under Section 161 CrPC are incorrect. PW-10 Krishan Kumar stated that no vehicle was seized in his presence. PW-11 Nek Ram confirmed the contends of Superdnama of Metador No. JK0E-4259. PW-12 Naresh Kumar deposed that police had seized his scooter from Dharamshala. PW-13 Bansi Lal was the witness of Superdnama of Matador i.e, EXPWNR. PW-14 Ravi Kumar, PW-15 Oberi Singh, PW-16 Balwant Raj Sharma, PW-17 Rashpal Singh, Patwari, and PW-18 Maqsood Beigh are witnesses of procedure and seizure.
10. From bare perusal of relevant parts of material witnesses, it is evident that they have stated nothing against the accused persons.
11. Law is also clear that conviction can be based on solitary witness, provided it inspires confidence of court. As provided in Section 134 of the Evidence Act, no particular number of witnesses shall, in any case, be required for the proof of any fact. The testimony of a single witness, if believed, is sufficient to establish any fact. Evidence is to be weighed CRAA Nos. 30/2006 and 04/2008 Page 7 of 12 and not counted. .The rule, if any, is a rule of prudence and its adoption or not depends on the circumstances of each case. One credible witness may outweigh the testimony of a number of other witnesses of indifferent character. In order, however, to sustain an order of conviction on the basis of the testimony of a solitary witness, such evidence must be clear, cogent and convincing and should be of an unimpeachable character.
12. In present case the only important witness PW-19 Parveen Akhter, who happened to be the wife of the deceased Abdul Gani has stated that on August, 19, 2002, she had gone to her parents house with her husband and had gone for shopping at Udhampur. Her husband Gani Ahmed met her in the "Bazar" She accompanied him up to Garhi where they paid Rupees Fifteen Hundred to shopkeeper for cement which they had purchased for construction of their house and then went to Khembal Danga in a matador where her husband took her to a cloth shop and asked her to sit there. He himself went to fetch cold drinks etc. On his return, they waited there for boarding a bus for their village so much, so that her husband bought her a suit also. While they were sitting three, accused Billa, Goldy (Sardar) and Yash Pal came on a motor cycle. Her husband handed over the baby, whom he was holding, as he was crying. Billa, accused drew up a pistol. On seeing him, her husband asked the shopkeeper „Shah Ji, who are these people, whereupon the shopkeeper replied that he did not know them. Upon this, her husband told her that those persons had come to kill him. Accused Billa fired at the chest of her husband who pressed his chest and kneeled down inside the shop of Sham Lal. She started crying and raising hue and cry but nobody came for help. Her husband tried to close the shutter of the shop but could not succeed. In the mean time, accused Billa came there again and dragged her husband out of the shop, inflicted „Khokhri‟ blows on her husband CRAA Nos. 30/2006 and 04/2008 Page 8 of 12 and Billa, accused fired at her husband once again. The accused person had inflicted 11-12 „Khokhri‟ blows on the person of her husband and the occurrence took place for about twenty minutes. Accused Goldy (Sardar) was threatening the people by brandishing his pistol and scared them so that they could not help. He also threatened her that if she dared to go near them, she would also be killed. The accused persons left the place of occurrence but after a short while returned and inflicted more „Khokhri‟ blows on the back of deceased. Thereafter they ran away from the place of occurrence. Her husband died on the spot. She was left all along with her minor child. Police reached thereafter about one hour of the occurrence. She does not know who had informed the police. She narrated the whole occurrence to the police on the spot. Police personnel took her to her parents house. Police had shown her „Khokhri‟ and she identified the same as weapon of offence used for killing her husband. Her husband had appeared as prosecution witness in Parveen Murder case and the accused persons have killed him for that reason only. On cross-examination by defence the witness stated that her husband had married three different ladies and had divorced two of them. Her husband had not asked her to meet him at Udhampur bus stand on the day of occurrence. When they reached at Khembal Danga, the accused had murdered her husband. At the time of occurrence, all the shops were opened. Two SPOs were also standing at the place of occurrence and they were having guns in their hand. The occurrence took place at 06.00 PM when there was sufficient light on the spot. At the time when accused Billa fired at her husband, both of them (she and her husband) were standing inside the shop. She was in front of her husband at the time of occurrence but accused Billa had fired at her husband by raising his hands. Child had fallen down, who was lifted by a „Halwai‟. The first shot was fired at her husband by Billa when her husband was inside CRAA Nos. 30/2006 and 04/2008 Page 9 of 12 the shop and rest of the fires was shot at her husband outside the shop. The fire had hit at the chest and made exit from the back. She knew accused Billa even prior to the occurrence although he had never come to her house. She had stated that she does not know as to whether her husband was tried for murder of Papi and was arrested in connection with murder of Dana as during those days she was not married to the deceased. She also stated that she had no knowledge about her husband‟s arrest in connection with a rape case.
13. The trial Court had while considering the evidence of star witness, Parveen Akhtar, has concluded that presence of Parveen Akhtar at the place of occurrence is doubtful because as the PW-15 Oberi Singh, who had taken the photographs of the occurrence, Parveen Akhtar had nowhere been shown in these photographs, whereas three colored photographs, which were not taken by PW-15 Oberi Singh, would show presence of Parveen Akhtar on the spot. PW-15 has denied having clicked these three photographs, as such, the trial Court in clear terms concluded that presence of Parveen Akhtar is not proved. Further this witness was not knowing accused, so ITP was required, which has not been conducted, she has identified accused after two year in court. With regard to the identification of the appellants, certain broad principles with regard to the appreciation of identification evidence may be borne in mind. The substantive evidence of a witness as regards identification is a statement made in the court. The evidence of mere identification of an accused person at the trial for the first time is, from its very nature, inherently of a weak character. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances, the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. The purpose of a test identification parade CRAA Nos. 30/2006 and 04/2008 Page 10 of 12 seems to be to test and strengthen the trustworthiness of the evidence given in the court. As a safe rule of prudence, it is considered necessary to generally look for corroboration of the sworn testimony of a witness in the court as regards the identity of an accused
14. It has also come in her statement that 5/6 persons attacked, but only three have involved. Other PWS Hem Raj, Raj Kumar and Arif Hussain have stated in one voice have stated the accused were not among those 5/6 persons. Similarly othere PWS Mohd. Ishaq , Puran Chand have stated nothing. PW Parveen has categorically stated that at the time when accused Billa fired at her husband, both of them (she and her husband) were standing inside the shop. She was in front of her husband at the time of occurrence but accused Billa had fired at her husband by raising his hands. The first shot was fired at her husband by Billa when her husband was inside the shop and rest of the fires was shot at her husband outside the shop. The fire had hit at the chest and made exit from the back.
15. PW Dr. Chander Parkash who conducted postmortem in his statement has stated that no fire injury was found on dead body. PW Dinesh Khajuria who examined X-RAY has also stated that no Radio 0paque foreign body was found. So statement of PW Parveen is not corroborated by medical evidence.
16. While acquitting the accused Naresh Kumar by order dated 15.10.2007, the trial Court has concluded that while as in the first challan, while appearing as an eye witness, Parveen Akhtar has deposed that neither her husband nor she was knowing the accused persons, however, while appearing as a prosecution witness in the supplementary challan, she deposed that all the accused persons were known to her husband. Therefore, there are contradictions in the statements of Parveen Akhtar.
CRAA Nos. 30/2006 and 04/2008 Page 11 of 12Even the evidence of the Doctor was contradictory in both the cases. In the earlier case the Doctor stated that there was no bullet injury on the body of the deceased whereas in the supplementary challan he stated that there was a small bullet injury on the neck of the deceased.
17. Considering the totality of the circumstances, the trial Court had in the absence of any clear cut evidence, acquitted the accused persons.
18. While convicting a person of heinous offences, there should be legally admissible evidence. There should not be moral conviction.
19. In the present cases, the learned State Counsel has not been able to point out any perversity in the trial Court judgment. In fact, the trial court had examined the entire evidence produced by the prosecution and on going through the same, we cannot come to the conclusion that the trial court decisions are un-reasonable or the findings returned are perverse. Therefore, we do not find any reason to interfere with the orders of the trial court acquitting the respondents.
20. Both the appeals are, accordingly, dismissed. The bail bonds, if any, shall stand discharged.
(Sanjay Kumar Gupta) ( Tashi Rabstan)
Judge Judge
Jammu
03.08.2018
Anil Raina, Secy
This judgment is pronounced by me in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999.
Jammu 03.08.2018 ( Sanjay Kumar Gupta ) Judge CRAA Nos. 30/2006 and 04/2008 Page 12 of 12