Jammu & Kashmir High Court
State Of J&K vs . Joginder Singh And Ors. on 5 April, 2019
Bench: Chief Justice, Sindhu Sharma
Serial No. 51
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No.41/2008
Date on which case reserved: 26.03.2019.
Date of order: 05.04.2019
State of J&K vs. Joginder Singh and Ors.
Coram:
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
Appearance:
For the petitioner/appellant (s) : Mr. Amit Gupta, AAG.
For the Respondent(s) : Mr. R K Kotwal, Advocate.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Gita Mittal, CJ
1. By way of the instant appeal, the appellant has laid a challenge to the judgment dated 8th March, 2008, whereby the Trial Court has acquitted the respondents for commission of offences with which they were charged in a case arising out of an FIR No.98/2000 registered at Police Station Gharota.
2. The case of the prosecution briefly put was that on the 13 th of June, 2000, Police Station Gharota received information through some reliable sources that during the night intervening 12/13th of June, 2000, one Yash Pal, S/o, Tara Chand, a resident of Jandyal, had been injured seriously and that he had succumbed to his injuries in the house of Chuni Lal, another resident of village Jandyal. The police was also informed that, on the 13th of June, 2000, at about six in the morning, the dead body of Yash Pal was taken to CRAA No.41/2008 Page 1 of 8 the bank of river Chenab near the Shiv Temple for destroying the evidence of the murder.
3. FIR No.98/2000 was based on this information and was registered under sections 302/201 of the RPC. Investigation of the case was assigned to Satpal Sharma, SI (examined as PW 19).
4. As per the prosecution, during investigation, it was revealed that in the night intervening 12/13th of June, 2000, at about 1.30 a.m., a person was found having committing house break into the kitchen of the house of Chuni Lal in village Jandyal. Chuni Lal is alleged to have raised an alarm and caught the thief whereas the respondents in the present appeal, residents of the same village, reached the spot. The thief who was identified as Yash Pal was also the resident of the same Village Jandyal who was brought from the kitchen, tied with a rope in a verandah of Chuni Lal's house.
5. It is the prosecution case that ornaments and other articles seized from the possession of Yash Pal were recovered under Section 550 of the CrPC but the same were found to be the subject matter of another case being FIR No.99/2000.
6. As per the prosecution, the respondents Joginder Singh, Parsotam Singh, Ajay Kumar and Waryam Singh (arrayed as accused in the challan) allegedly beat up the burglar Yash Pal with sticks.
7. The prosecution has further submitted that it was also brought out in the investigation that Chuni Lal, the owner of the house, had requested the respondents not to beat Yash Pal and instead matter be referred to the police but his request had no effect on the respondents who continued to beat Yash Pal and subjected him to their own interrogation.
CRAA No.41/2008 Page 2 of 88. It is further in the investigation that Yash Pal repeatedly sought forgiveness from Joginder Singh-Kaku, respondent No.1 but it had no effect on him. Instead the respondents continued thrashing and beating Yash Pal resulting in his death in the early hours of 13th of June, 2000.
9. It is further alleged that after the death of Yash Pal, the respondents conspired to cause disappearance of the evidence thereof. Two vehicles being Tipper Nos.5755-JK02G and 0591-JK02G were sent for. In these two tippers, the dead body of Yash Pal along with fire wood was taken to the cremation ground on the river Chenab.
10. It was also revealed in the investigation that at the time of cremation of Yash Pal, his relatives who have been cited in the challan as PW 1 Satpal brother of the deceased, PW2 Ashok Kumar another brother, PW 3-Mst. Shobha Rani, his sister and PW4, Mst Krishana Devi, mother of the deceased also reached the spot. These relatives made requests to the respondents to not cremate the dead body but their request had no effect on the respondents.
According to the prosecution, the police reached the spot of cremation only after the dead body of Yash Pal had turned into ashes.
11. On completion of the investigation, a challan was presented on 29th of July, 2000 before the City Judge, JMIC, Jammu under Section 173 of the Cr.PC against the respondents, who committed the same to the court of the Principal Sessions Judge, Jammu. The case was transferred to the court of the 1st Additional Sessions Judge, Jammu for trial.
12. After consideration of the matter on record, the Trial Court framed charges on 21st of September, 2000 under Sections 302/148/149/342/201 RPC against the respondents. The respondents pleaded not guilty and claimed trial.
CRAA No.41/2008 Page 3 of 813. In support of its case, the prosecution examined 19 witnesses during trial.
14. One of the accused persons namely Ram Lal expired during the pendency of the trial.
15. After consideration of the evidence in its entirety, the learned Trial Judge found that there was not an iota of evidence on record to connect the accused persons with the commission of offence with which they stood charged. It was observed that all the witnesses at the place of occurrence who were produced as eye witnesses had turned hostile and that the prosecution could not make anything out of the evidence.
16. Consequently, by the impugned judgment dated 8th of March, 2008, the Trial Court acquitted the respondents from commission of the charges framed against them, setting them at liberty. Aggrieved by this judgment, the State has preferred the present appeal contending that the learned Trial Judge has failed to consider the evidence on record in its correct perspective; has ignored material evidence and that the judgment is not sustainable.
17. We have heard Mr. Amit Gupta, learned AAG appearing for the State and Mr. R K Kotwal, learned Advocate for the respondents at length. Learned counsels have also carefully taken us to the record of the case.
18. A perusal of the Trial Court record would show that the prosecution has examined the six witnesses as eye witnesses to prove the commission of the murder. In this regard, the prosecution examined PW6-Atma Ram, PW1 Joginder Kumar, PW3-Sudershan Singh, PW-Chuni Lal, PW4-Devi Dutta and PW5-Sita Ram, as eye witnesses who are alleged to witness the occurrence which took place in the house of Chuni Lal. The Trial Judge has noted that the entire case of the prosecution hinges upon the statement of these witnesses whose presence was shown in the house of Chuni Lal CRAA No.41/2008 Page 4 of 8 where the victim Yash Pal was allegedly caught while committing theft and killed by the respondents there itself. Atma Ram PW 6 has completely denied that he went to the house of Chuni Lal on the date of occurrence and stands declared hostile. He denied the suggestion that he had ever given a statement to the police. PW 1-Joginder Kumar, also failed to make any statement in favour of the prosecution. Even Chuni Lal examined as PW2 in whose house the entire incident was alleged to have taken place, did not support the prosecution and has testified that he was not in his house on 12th of June, 2000 as he had gone to Nagrota. Other than proving that Chuni Lal knew the victim and the accused, the prosecution was unable to extract any evidence to support it in his testimony. Apart from admitting his signatures on the seizure memo, which was exhibited as EXPW-CL, this witness completely denied the contents thereof. Similarly, Sudershan Singh PW3, Devi Dutta PW4, Sita Ram PW5 did not support the prosecution at all denying the incident in which Yash Pal was killed.
19. So far as the fact of the dead body of Yash Pal and the fire wood being ferried to the cremation ground on the bank of river Chenab in the tippers is concerned, the prosecution examined two drivers, namely Gurdev Dutt examined as PW10 being driver of tipper bearing No.JK02G-5755 in which the dead body was taken and Surinder Kumar PW11 as driver of tipper bearing No.JK02G-0591 in which the fire wood was taken. Gurudev Dutt stated that while passing through the village Jandyal in his tipper, he had seen 500 people gathered and had been requested to carry the dead body to the cremation ground. The witness also stated that he had unloaded the dead body at the place of cremation. However, he did not support the prosecution in that the accused persons were present who had also boarded the tipper or that they were carrying the lathies in their hands. This witness failed to identify the respondents. Surinder Kumar examined as PW11 had stated that he was asked by an old person Tara Chand to carry the fire wood CRAA No.41/2008 Page 5 of 8 for cremation purposes and that he had carried the fire wood. This witness also denied that he had seen the accused persons amongst persons gathered in village Jandyal. Nothing could be extracted in the cross examination after these witnesses were declared hostile.
20. Buta Singh examined as PW8 to establish that on 13th of June, 2000, the respondents had forcibly taken the fire wood belonging to him, has testified that the fire wood had been collected by Tara Chand, the father of the victim. This witness was questioned even by the court but nothing material could be extracted from him. Similarly, Harbans Lal examined as PW9 to establish loading the dead body and fire wood on the tippers and Chaman Lal examined as PW7 who was working as Chowkidar of village Jandyal and was a witness to the seizure memo of bones and ashes of the deceased, did not support the prosecution at all.
Thus the prosecution case was not supported by any of its material witnesses.
21. In this background, an effort was made by the relatives of the deceased Yash Pal to support the prosecution witnesses by testifying that they had witnessed the murder. Unfortunately, the two brothers of the deceased Satpal examined as PW14 and Ashok Kumar examined as PW15, sister Shobha Rani examined as PW16 and mother Krishna Devi examined as PW17 had given prior statements to the police which were recorded under Section 161 of the Cr.PC. In the witness box they made completely contradictory statements. Appearing as PW14, Satpal shifted the entire occurrence to the bank of river Chenab. Ashok Kumar examined as PW15 also gave a similar statement. Similarly Shobha Rani examined as PW16 made material improvements while appearing in the witness box and projected herself as eye witness to the murder. When confronted with the statement under section 161 CrPC, she went to the extent of denying having CRAA No.41/2008 Page 6 of 8 made such statement. Krishna Devi examined as PW17 also made improvements in material particulars in her court testimony vis-à-vis the statement which was recorded by the police under Section 161 Cr.PC.
These material improvements and contradictions discredited the testimony of these witnesses.
22. In any case, Sat Pal PW 19 who was the investigating officer in the case had given a categorical statement that as per the investigation conducted by him, PWs 14 to 17 were not eye witnesses to the murder.
23. In this background, these witnesses were unable to establish even their presence in the house of Chuni Lal when the occurrence allegedly took place.
24. The learned Trial Judge has found that the prosecution had failed to establish even the presence of the accused at the place of occurrence. The learned Trial Judge has also observed that the investigating agency had got the forensic examination conducted on the bone pieces recovered from the cremation ground and obtained a Forensic report dated 22nd of July, 2000. This report though placed on record was not proved in accordance with law. The learned Trial Judge has noted that this Forensic report also supported the respondents, inasmuch as it reported that the original bone pieces could not be determined as they were completely in burnt condition.
25. In this background, nothing has been pointed to us, which would enable this court to take a view different from the view taken by the learned Trial Judge to the effect that prosecution had failed to establish commission of the offence by the respondents beyond reasonable doubt. We are also of the view that there is not an iota of evidence to support the commission of the offence or guilt of the respondents in any manner.
CRAA No.41/2008 Page 7 of 826. In view thereof, the appeal is completely without any legal merit and is hereby dismissed.
(Sindhu Sharma) (Gita Mittal)
Judge Chief Justice
Jammu
05.04.2019
Raj Kumar
RAJ KUMAR
2019.04.05 14:55
I attest to the accuracy and
integrity of this document
CRAA No.41/2008 Page 8 of 8