Jammu & Kashmir High Court
Amarjeet Singh Alias Kaka vs State Through Police Station Poonch on 5 June, 2024
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CRA No. 4/2015
c/w
CONF No. 2/2015
Reserved on: 07.05.2024
Pronounced on: 05.06.2024
Amarjeet Singh alias Kaka
S/o Ranbir Singh R/o Village Mangnar
Tehsil Haveli District Poonch
A/P lodged in Kotbhalwal Jail. ...Appellant
Through :- Mr. A. K. Shan, Advocate with
Mr. Rakesh Khajuria, Advocate
v.
State through Police Station Poonch .....Respondent
Through :- Mr. Ramesh Arora, Sr. AAG
Coram: HON‟BLE MR. JUSTICE ATUL SREEDHARAN JUDGE
HON‟BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
1. This appeal has been directed against judgment and order of conviction dated 19.01.2015 passed by learned Principal District and Sessions Judge, Poonch ["trial court"], vide which, appellant came to be convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs.10,000/- for commission of offence under Section 302 of Ranbir Penal Code, 1989 [RPC], five years and fine of Rs. 4,000/- for offence under Section 452 RPC and seven years and fine of Rs. 5,000/- for offence under Section 4 read with Section 25(1- 2 CRA No. 4/2015 A) of Arms Act and, in default of payment of fine, to further undergo imprisonment of like nature for six months.
2. Before a closer look at the grounds of challenge urged in the memo of appeal, it shall be expedient to have an overview of the background facts. FACTUAL MATRIX
3. On 20.06.2010, at about 7:30 a.m. Police Station, Poonch received a telephonic information from complainant-Naranjan Singh-PW-11 that appellant, armed with a Khokhri, on account of old animosity at about 7:15 a.m., trespassed into the house of Joginder Singh (the deceased), situate at Mangnar and attacked him, whose dead body is lying on the spot. It was also informed by the complainant that accused after the commission of occurrence had fled away and he had also received injuries, while rescuing the deceased. On the receipt of this information FIR No. 90 of 2010 for offences under Sections 302, 452, 323 RPC read with Sections 4/25 Arms Act came to be registered. During investigation, the appellant came to be arrested and he revealed that he had been informed by the wife of the deceased, co-accused, Sunita, that deceased had come to know about their illicit relationship and would regularly beat her, which he could not tolerate. The appellant further disclosed that he bought a "Khokhri" for Rs. 450/- from Amritsar, Punjab in furtherance of intention to kill the deceased. Appellant also disclosed that after killing the deceased, he had concealed the weapon of offence in the bushes behind the house of PW-11-Naranjan Singh and could lead to its recovery. Consequently, the weapon of offence came to be recovered and seized by the investigating agency at the instance of the appellant/accused. Disclosure memo and consequent memos of recovery and seizure of the weapon of offence were prepared. The investigating agency conducted other legal and 3 CRA No. 4/2015 statutory formalities. Dead body of the deceased after autopsy was handed over to the legal heirs for last rites. Statements of witnesses, conversant with the facts, were recorded under Section 161 Cr.P.C. the investigating officer also got statements of material witnesses recorded in terms of Section 164-A Cr.P.C. The investigation eventually culminated into final report in terms of Section 173 Cr.P.C. against the appellant under Sections 302, 452, 323 RPC read with Sections 4/25 of Arms Act and against the co-accused for offences under Section 302 & 109 RPC.
4. Both the accused came to be charged by the trial court for the aforesaid offences, whereby they pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. Prosecution has examined sixteen out of twenty witnesses.
5. On conclusion of the prosecution evidence, both the accused were examined under Section 342 Cr.P.C., whereby they denied the incriminating imputations arrogated to them by the prosecution witnesses and preferred to enter defence. Appellant examined one witness in his defence. On conclusion of the trial, learned trial court, having examined, analyzed and marshalled the prosecution evidence as also the defence evidence brought on record acquitted the co-accused for want of evidence, but convicted and sentenced the appellant as mentioned at the outset.
GROUNDS OF CHALLENGE
6. The appellant has questioned the impugned judgment primarily on the ground that learned trial court has failed to appreciate the evidence in its right perspective, as there are glaring infirmities, improvements and embellishments between statements of the prosecution witnesses recorded during the course of 4 CRA No. 4/2015 investigation and those recorded during the trial, which have been given a complete go-bye by the trial court without any plausible reason. 6.1. Appellant has also questioned the impugned judgment on the ground that learned trial court has erroneously relied upon the testimony of PW-14 Balwant Kour, blind sister of the deceased, because the said witness has narrated certain facts, which could only be seen through naked eyes and the reasons assigned by the trial court for placing reliance upon the testimony of the blind witness being unknown to law, has resulted in miscarriage of justice.
6.2. According to the appellant, the presence of PW-3-Dheeraj Singh and PW- 7-Iqbal Singh, brothers-in-law of the deceased and sisters of the deceased, PW-8- Surinder Kour wife of PW-3 and PW-15-Amrit Kour wife of PW-7, at the scene of occurrence is also highly doubtful because their claim to have witnessed the occurrence with their eyes, has been falsified by none other than PW-13-Surjit Kour, mother of the deceased and PW-14-Balwant Kour, blind sister of the deceased, who, in their statements, have clearly stated that at the time of the occurrence, besides them, none else was present in the house. It is also contention of the appellant that even presence of the informant, PW-11-Narnajan Singh at the scene of occurrence is doubtful, because of statement of PW-14- Balwant Kour that her uncle-Naranjan Singh and his wife, PW-12-Gurjeet Kour when came to the spot, they enquired from her about the occurrence. 6.3. Appellant has also assailed the impugned judgment on the ground of failure on the part of the prosecution to prove motive behind the alleged murder of the deceased and failure on the part of the prosecution to prove FIR. 6.4. Appellant has prayed for quashment of the impugned judgment and his consequent acquittal.
7. Heard arguments and perused the file.
5 CRA No. 4/2015ARGUMENTS ON BEHALF OF APPELLANT
8. Mr. A. K. Shan, learned counsel appearing for the appellant has reiterated the grounds urged in the memo of appeal and relied upon Javed Masood and another v. State of Rajasthan; A2010 SC 979, Saroj Sahu v. The State of Jharkhand; A (2014) Jha 596, Bijoy Singh v. State of Bihar; 2002 AIR (Criminal) 354, C. Maniappan and ors. v. State of Tamil Nadu; 2010 (9) SCC 567 and V.C. Shukla v. State of Delhi; AIR 1980 SC 1382.
ARGUMENTS OF SENIOR AAG FOR RESPONDENT
9. Ex adverso, Mr. Ramesh Arora, learned Senior AAG has urged that learned trial court has marshaled and appreciated the prosecution evidence in proper perspective and since prosecution witnesses, in one word, have deposed that appellant armed with a deadly weapon trespassed into the house of the deceased and inflicted two stab blows on vital part of the body of the deceased in their very presence, learned trial Court has rightly convicted the appellant by ignoring minor contradictions or infirmities.
10. Before adverting to the merits of the case, it shall be apt and expedient to give a concise resume of the testimonies of the prosecution witnesses which is as under:
PROSECUTION EVIDENCE
11. PW-1-Kuldeep Singh has stated that on 20.06.2010 there was "Path" in the house of Naranjan Singh, where hue and cry was raised. About 40/50 persons rushed to the spot. Dead body of deceased-Joginder Singh was lying in the lawn of Naranjan Singh. Accused was standing on the road and not on spot. There was nothing in the hands of the accused. He has been declared hostile by the prosecution. During cross-examination by the prosecution, he reflected his 6 CRA No. 4/2015 ignorance about the recovery of weapon of offence. Though he has admitted seizure memos of some formal objects recovered by the investigating agency during investigation, he has denied the disclosure statement by stating that accused did not make disclosure in his presence as he was in custody. He admitted his signatures on the disclosure statement. He has identified Khokhri and its cover in the open court. He is a matriculate and Lumbarder of the village. On cross examination by the defence, he has stated that police obtained his signatures in the police station on blank papers. He has also stated that he is not aware of the meaning of the disclosure statement. Accused was arrested on the spot on 20.06.2010.
12. PW-2-Amrik Singh is cousin of the deceased. He has stated that on 20.06.2010, while he was going towards his land, he heard the cries of the deceased "Bachao, Bachao, Chacha Bachao". He reached the spot and saw injured-Joginder Singh running towards the lawns of Naranjan Singh, whereas accused-Amarjeet Singh was running after him and accused inflicted a blow of "Khokhri" on the deceased. He asked accused as to why he killed Joginder Singh, to which, accused said that it is his wish and he is not afraid of anybody. Police came to the spot within minutes and arrested the accused. After some time police again reached the spot along with accused and recovered the Kirch (Khokhri) from the bushes and his signatures were obtained. He has admitted the seizure memos of dead body EXPW-1-KS, blood EXPW-1-KS/1, clay EXPW-1- KS/2, clothes EXPW-1-KS/3, receipt of dead body EXPW-1-KS/6 and memo of arrest of accused EXPW-1-KS/7. He has also identified the weapon of offence and seized articles in the open Court. In cross examination, he has stated that police prepared the documents and he put his signatures in the Police Station. He has admitted that it is not mentioned in his statement under Section 161 Cr.P.C. 7 CRA No. 4/2015 that when he enquired from the accused that why he had killed the deceased and accused said him that it was his wish and he was not afraid of anybody. He further stated that "Khokhri" was recovered from the bushes, behind the house of Naranjan Singh in his presence and in the presence of sister of the deceased. Dheeraj Singh, brother-in-law of the deceased and one more person were on the spot. His signatures are not there on the recovery and seizure of Kirch.
13. PW-3-Dheeraj Singh is brother-in-law of the deceased. He has stated that in 2010, on Sunday, he had gone to the house of his in-laws. Accused crossed over the wall and came to the house of in-laws and enquired about the deceased. His mother-in-law told him that deceased was sleeping and asked him to come in the morning. Accused returned in the morning to enquire about the deceased. He was told by his in-laws that deceased was wearing turban. Accused was demanding Rs.1,000/- and a motor from the deceased. Both of them went to the Kitchen where they had exchange of hot words, on this, accused inflicted a blow of "Kirch" on the deceased. The deceased came out running and went towards the lawns of PW-Naranjan Singh where accused inflicted second "Kirch" injury upon the deceased. Accused fled to his house and Joginder Singh died on the spot. Police came to the spot and recorded his statement. In cross examination by counsel for accused No.1, he has stated that it takes about 15/20 minutes from the house of the deceased to the house of the accused as they were residing in the same Mohalla. There are 3/4 rooms in the house of the deceased. Besides him, 3/4 ladies including his mother-in-law and sister-in-law were present in the house of the deceased at the time of the occurrence. His mother-in-law had gone to the neighbouring house for participating in the Path, but his blind sister-in-law was present in the house. House of Naranjan Singh is situated near the house of the deceased, but away from the house where religious „Path‟ was held. He was first 8 CRA No. 4/2015 to reach the house of Naranjan Singh and rest followed him. In cross examination by counsel for accused No. 2, he has stated that occurrence took place in the house of the deceased at 7:15 a.m.
14. PW-4-Rakesh Chander is witness to the Superdnama of ring finger EXPW-6-PS. But in cross examination, he has stated that police took his signatures on a blank paper in the Police Station.
15. PW-5-Baldev Raj has stated that about an year ago, he heard hue and cry from the house of Naranjan Singh. He went to the spot, saw injured-Joginder Singh. Joginder Singh was not in a position to say anything. He was declared hostile and on cross examination by the prosecution, he has stated that he saw Naranjan Singh, Chowkidar and other villagers on spot. Nobody told him that accused had killed Joginder Singh. In cross examination by the Defence, he has stated that Police got his signatures on a blank paper.
16. PW-6-Paramjeet Singh is witness to Superdnama, EXPW6-PS. He has admitted the same, but stated that his signatures were obtained on a blank paper. However, he has admitted that finger ring was handed over to Rakesh Kumar in his presence.
17. PW-7-Iqbal Singh is brother-in-law of the deceased. He has stated that on 19.06.2010, he had gone to the house of his in-laws at Mangnar. Accused knocked at the door in the night and asked to open the door but he was told by the family members that deceased was sleeping and he was asked to come in the morning. Accused returned in the morning on 20th at about 7:00 or 7:15 a.m. and was demanding his motor. Deceased told him that his motor was lying in the Kitchen and asked him to go and take it. Both the deceased and accused went to the kitchen, where accused inflicted a blow of "Khokhri" upon the deceased. Deceased ran out, but he was chased and stabbed in the neck by the accused in 9 CRA No. 4/2015 the land of his uncle, as a result whereof, deceased died on the spot. He also stated that accused-Amarjeet Singh had illicit relation with co-accused-Sunita Kour (wife of the deceased). Co-accused hatched a conspiracy with the accused/appellant and got the deceased killed. Police recorded his statement. In cross examination by counsel for accused No. 1, he has stated that nine persons, including two males, were sleeping in the house of the deceased on the day of the occurrence. He went to the house of his in-laws on 19th and the occurrence took place on the next day. He has admitted that he was in his room when deceased, while crying ran away from his house. His wife was also with him in the room. Deceased, with his hands on his chest, was crying "Bachao Bachao". Deceased was running from his Veranda and was chased by accused. He told the Police that deceased, while running, was crying "Chacha Bachao, Chacha Bachao" but there is no such mention in his statement under Section 161 Cr.P.C. Police came to the spot 20 to 25 minutes after the occurrence and recorded his statement and those of Amreek Singh, Naranjan Singh and his wife. First of all, mother of the deceased came running out of the house, whereafter, they all followed but the deceased succumbed when they reached the lawn of Naranjan Singh. Many people had gathered at the scene of occurrence. He has denied the suggestion that he was telephonically told by Naranjan Singh that Joginder Singh has been killed by someone and was lying on the road. He has also denied the suggestion that he was present in his house during the night and went to Mangnar on receipt of said information. He had not seen the appellant and the deceased going towards the kitchen, but he saw them running. In cross examination by counsel for accused No. 2, he has stated that no conspiracy between accused and co-accused took place in his presence.
10 CRA No. 4/2015
18. PW-8-Surinder Kour is sister of the deceased and she has stated that on 20.06.2010, she along with her husband had gone to the house of her parents at Mangnar. At about 10:00 p.m., she heard knock at the door. Accused-Amarjeet Singh, after crossing over the wall, came to their house. He was asked to come in the morning. Accused returned in the morning at about 7:00 a.m. and demanded Rs.1,000/- and motor from the deceased. The deceased agreed and they went towards the Kitchen, where appellant/accused inflicted a blow of "Khokhri" on the deceased. Thereafter, he hatched conspiracy with co-accused and inflicted another blow of "Khokhri" on the deceased. Deceased died in the lawn of her uncle. Police recorded her statement 4/5 days after the day of occurrence. In cross examination by the defence, she has stated that accused knocked at the door of the room of her mother, where she, along with her parents, sister, husband and children, was sleeping. Deceased was sleeping in the middle room of their house along with his wife and children. In the morning, she was in the bath room and came out after hearing hue and cry and saw the deceased bleeding. The injured deceased ran towards the house of her uncle and thereafter accused had a discussion with co-accused-Sunita Kour. However, this fact is not mentioned in her statement under Section 161 Cr.P.C. Deceased had reached in the lawn of her uncle before she came out of the bath room and she saw blood oozing out from the neck of the deceased. There are about 25/30 houses in their Mohalla, including 6/7 shops and all the villagers and shopkeepers reached the spot. She was the first person who reached the deceased. On examination by the Court, she has stated that accused did not inflict first blow on the deceased, in her presence, but second blow was given by the accused to the deceased in her presence in the land of her uncle.
19. PW-9-Gulshan Kumar is hostile.
11 CRA No. 4/2015
20. PW-10-Ghulam Abass Shah is witness to the disclosure, recovery and seizure of the weapon of offence. He has stated that on 23.06.2010, while he was posted at Police Station, Poonch, accused-Amarjeet Singh made a disclosure in the police custody that he had concealed a "Khokhri", with which, he had killed the deceased, in the bushes behind the house of the deceased and he could recover the same. He has admitted the disclosure statement EXPW-11GA. Consequent upon the disclosure of accused, "Khokhri" was recovered at the instance of the accused. He has admitted the memos of recovery and seizure EXPW-11GA/1 and identified his signatures. He has identified the weapon of offence in the open Court. In cross examination by the defence counsel, he has stated that there were 5/6 civilians present in the Police Station and signatures of one Kuldeep Singh were obtained. SHO and accused also put their signatures on disclosure statement. Memos of recovery and seizure were prepared on the spot. 2/3 civilians, relatives of the complainant had accompanied the Police. Accused identified the place of recovery and "Khokhri" was recovered by the SHO on the identification of accused. "Khokhri" was not visible from a distance because it was lying right at the end of the bushes. It was blood stained and without any cover. "Khokhri" was sealed with a ring marked "A".
21. PW-11-Naranjan Singh is the informant and uncle of the deceased. He has stated that on 20.06.2010, on Sunday, at about 7:15 a.m., he heard "Chacha". His wife told him that something had happened to Joginder Singh, who came running and fell down. He and his wife reached the spot in front of his house. Both hands of the deceased were on his abdomen. He removed his hands and saw a deep wound on his abdomen and it was bleeding. Meanwhile, accused- Amarjeet Singh came there and inflicted a blow of "Khokhri" in the neck of the deceased. When he asked accused-Amarjeet Singh the reason for stabbing, the 12 CRA No. 4/2015 accused threatened that now it was his turn. Gurmeet Singh caught hold of accused from his back. He tried to snatch the Khokhri from the hands of the accused, due to which, he received a cut wound on his hand. His wife told him that accused would also stab him and asked him to leave. He fled from the spot, went to his house and telephonically informed the Police that his nephew had been killed by accused-Amarjeet Singh. People gathered on the spot. Police came and arrested the accused. He got dressing on his hand. His mobile number was 94196-72967. He has admitted the contents of the FIR. It does not bear his signatures. However, his signatures were obtained by the police on „Roznamcha‟ (daily diary). The statement of the witness was deferred for want of Roznamacha. On further examination, he has stated that Roznamcha does not bear his signatures. However, he has admitted that he telephonically lodged a report and he admitted the contents of the Roznamcha. On cross examination by counsel for accused No. 1, he has stated that he is an employee of Crime Branch. His signatures were obtained on the FIR and the Roznamcha. He again stated that he does not remember whether his signatures were obtained on the FIR or not, but contents of the FIR were read over to him. There is a motorable road at about 10/15 yards from the place where dead body was lying. None enquired from the deceased about the occurrence, because he was unconscious. Amreek Singh and others handed over accused to the Police. Someone, after snatching the knife from the accused, had thrown it in the bushes behind his house. He is witness to the disclosure statement of the accused, but not the recovery of the weapon of offence, though it was seized in his presence. Length of "Khokhri" was about 10 inches and its handle was about 6/7 inches. There was one wound on the chest of the deceased which he saw when he removed his hands. At the time of postmortem, two injuries were found on the person of the deceased; one on the 13 CRA No. 4/2015 chest and another on the neck. The injury on the neck of the deceased was caused by the accused in his presence. In cross examination by counsel for accused No.2 he has stated that co-accused Sunita Kour is his niece and is a charactered woman.
22. PW-12-Gurjeet Kour has stated that on 20.06.2010, she heard cries from the house of deceased. She saw through her window that deceased came running and fell in the lawn of her house. The deceased was crying "Chacha ji Bachao". Her husband was present in the house. She and her husband rushed to the spot and saw Joginder Singh in a pool of blood. When her husband tried to lift Joginder Singh, accused-Amarjeet Singh came and inflicted a blow of "Khokhri". Gurmeet Singh caught hold of accused-Amarjeet Singh from the back, due to which, „Khokhri" hit on the neck of the deceased. Her husband received cut injuries, when he tried to snatch "Khokhri" from the hands of accused-Amarjeet Singh. Thereafter, father of accused came to the spot and took the Khokhri from his hand. In cross examination by counsel for accused, she has stated that there is a thoroughfare in her mohalla, consisting of 5/6 houses. Deceased-Joginder Singh was not in a position to speak when she and her husband reached him. She and her husband had not seen injury being caused on the abdomen of the deceased, but accused inflicted second blow in the neck of the deceased in their presence. Her statement was recorded on 23.07.2010.
23. PW-13-Surjeet Kour is mother of the deceased. She has deposed that on 19.06.2010, Saturday, at about 10:00 p.m. accused Amarjeet Singh crossed over the wall and came to her house. She and her children came out. Accused asked the deceased to open the door, but she did not allow him to do so. Accused Amarjeet Singh said that he would come in the morning. Next morning, accused came at around 7:00 a.m. and demanded his motor from the deceased. Deceased 14 CRA No. 4/2015 went to Kacha Kitchen to bring the motor, but accused-Amarjeet Singh went to the wife of the deceased in the Pacca Kitchen. When deceased saw the accused in a compromising position with his wife-the co-accused, he could not tolerate. When deceased said that she was his wife, accused-Amarjeet Singh, who was armed with a "Khokhri", caught hold of the deceased, took him to Kacha Kitchen and stabbed in his chest. She asked her daughter-in-law, the co-accused, as to why it happened, to which, she replied that work has been accomplished. The deceased cried "Chacha Bachao, Bachao" and went to the lawn of his uncle- Naranjan Singh. Accused chased him and again stabbed him in his neck. When Naranjan Singh and his wife came to the rescue of the deceased, accused told them that now it was their turn. Her son died on the spot in her presence. Her statement was recorded in the Court. In cross examination by the defence, she has stated that she had stated in her statement under Section 164 Cr.PC. that accused had crossed over the wall of her house but it is not mentioned in her statement. It is also not mentioned in her statement under Section 164 Cr.P.C. that when deceased went to Kacha Kitchen, she saw that accused had not come to take his motor. It is also not mentioned in her statement recorded under Section 164 Cr.P.C. that when deceased saw accused and co-accused in compromising act the deceased told accused-Amarjeet Singh that she was his wife and on this, accused took the deceased from Pacca Kitchen to Kacha Kitchen. There is a road in front of her house. People gathered outside her house but they did not come in. Brother-in-law of the deceased was on the spot. She was changing her clothes, when accused took the deceased to Kacha Kitchen. She changed her clothes within seconds on hearing the cries of her son. When she came out after changing her clothes, she saw the deceased lying on the ground. Gurmeet Singh caught hold of the accused. She and her blind daughter, PW-14-Balwant Kour, were 15 CRA No. 4/2015 present in the house at the time of occurrence and, besides them, minor children of the deceased were also present in the house.
24. PW-14-Balwant Kour is sister of the deceased, who is blind by birth. She has deposed that on 19.06.2010 on Saturday at about 4:00 p.m. she went to the room of the deceased. There was a phone call, but when deceased picked the call, it was dropped. It again rang, but again call was dropped. The deceased checked the phone and came to know that it was call of accused-Amarjeet Singh. After ten minutes, when co-accused-Sunita Kour started preparing to move out, deceased dissuaded her from attending the „Path‟, because she had started preparing only after the call of accused-Amarjeet Singh. Co-accused got annoyed and went inside to cook the food. They had dinner and went to their respective rooms. At about 10:00 p.m. She heard a mobile call from outside. She and her mother came out and saw that accused Amarjeet Singh had crossed over the wall and came to their house because gate was closed. Accused started threatening the deceased and asked him to come out immediately. She asked the deceased not to open the door. Accused returned next morning on 20.06.2010 at about 7:00 a.m. and asked for his motor. She replied that deceased was wearing the turban. Deceased asked the accused to come and take his motor. Accused and deceased went to Kacha Kitchen, but accused-Amarjeet Singh went to co-accused, Sunita Kour, in the Pacca Kitchen. Deceased after waiting for some time, went to Pacca Kitchen and asked the accused as to what relation he had with his wife. At this, accused-Amarjeet Singh caught hold of the arm of the deceased, took him into Kacha Kitchen and stabbed him in his abdomen. Deceased started running outside crying "Chacha Ji Bachao, Chacha Ji Bachao" and fell down unconscious. Accused followed him and stabbed in his neck. She raised hue and cry. Her Aunt-Gurjeet Kour and Uncle-Naranjan Singh came out and asked 16 CRA No. 4/2015 accused Amarjeet Singh why he has killed, Joginder Singh, to which, accused said that, now it was their turn. Naranjan Singh gave telephonic information to the police, that his son had been killed. Police arrived within twenty minutes and commenced the proceedings. It has been alleged by the witness that accused conspired with co-accused and killed the deceased, because co-accused, Sunita Kour, had illicit relation with accused-Amarjeet Singh. Police got her statement recorded in the Court. In cross examination by the defence, she has stated that she is blind by birth. She is unable to cook food, but she can do rest of the household chores. It is not recorded in her statement under Section 164 Cr.P.C. that she was in the room of her brother, when there were phone calls, co-accused, Sunita Kour, got annoyed and went to cook the food. However, it is mentioned in the said statement that a phone call of accused-Amarjeet Singh came to her Bhabi. She heard the sound of jump and recognized it. There is mention of "Khokhri" in her statement under Section 164 Cr.P.C. It is also not mentioned in her statement under Section 164 Cr.P.C. that accused inflicted second stab wound in the neck of her brother in the lawn of Naranjan Singh, on hearing her hue and cry, her Aunt and Gurmeet Singh came to the spot, when Naranjan Singh and his wife reached the spot, brother-in-law of accused and Gurmeet caught hold of the accused and made him to lay on the ground. She was with the deceased when accused inflicted second stab blow upon him because she was running after the deceased and accused was running after her. The neighbourers came to the spot within 5/10 minutes after hearing her cries. Sunita Kour-co- accused and children had seen the accused inflicting second blow on the deceased. Accused was not present on the spot, when police came to the spot, but he was present in his house. In cross examination by counsel for accused No. 2, 17 CRA No. 4/2015 she has stated that deceased and co-accused were married for about 14/15 years and they had good terms.
25. PW-15-Amrit Kour is also sister of the deceased. She has stated that accused-Amarjeet Singh is her cousin and co-accused, Sunita Kour, is her Bhabi. On 20.06.2010, she went to her parental house. A number of persons had already gathered in the house of her mother. Her sister, Balwant Kour, was crying. Meanwhile, she saw her brother Joginder Singh with his hands on his chest, running and he fell down in the lawn of her Uncle. He was crying "Chacha ji Mujhe Bacho". She followed him. She saw the accused armed with a "Khokhri" and his hand was blood stained. When deceased Joginder Singh fell down unconscious, accused inflicted a blow of "Khokhri" on the lower side of his neck and killed him. They started crying. She revealed on the spot that deceased was killed due to conspiracy between accused and co-accused. Her statement was recorded under Section 164 Cr.P.C. In cross examination by counsel for accused No. 1, she has stated that there are many houses around her parental house and there is a thoroughfare. There were around 10/15 persons present when she reached her parental house. She had seen the deceased running towards the house of her uncle from a distance of about 12/14 feet. It is not mentioned in her statement under Section 164 Cr.P.C. that accused was armed with "Khokhri" and his hand was blood stained. Accused led the recovery of "Khokhri" and was arrested from his house. Her mother came to the spot after her. Her sister Balwant Kour is blind. In cross examination by counsel for accused No. 2, she has denied the suggestion that co-accused was arrested only after the sanction of ex gratia relief of Rs. 6,25,000/-. Her statement was recorded in the Court after one month of the occurrence. She has admitted that she did not state anything against co-accused in her statement under Section 164 Cr.P.C. 18 CRA No. 4/2015
26. PW-16-Rakesh Verma, Physician Specialist, District Hospital, Poonch has stated that on 20.06.2010 he conducted postmortem of deceased-Joginder Singh at 11:45 a.m. and found following injuries on his person:
"External injuries i. There was one punctured would about 5 cm in width and 13 cm in depth over left side of chest over heart rupturing positing of left lung, heart and big vessels.
ii. Punctured would about 3 cm in width and 4 cm deep
over right side of the neck rupturing big vessels of neck
area.
Internal injuries
i. Scalp bones and brain substance normal, base of skull
normal.
ii. Punctured would about 3 cm in width and 4 cm deep
over right side of the neck piercing through the big
blood vessels of the neck area on right side.
iii. Pleural cavity was full of blood and left side.
iv. Left lung lower lobe lacerated with bleeding.
v. Pericardium was full of blood
vi. Lacerated left ventricle and aorta."
In his opinion, the deceased had died, due to cardio respiratory arrest, due to hemorrehagic shock, as a result of massive bleeding from heart, lung and big vessels of the neck. Time since death was less than six hours at the time of autopsy. He has admitted postmortem report, EXPW-17-RV. He has admitted that weapon of offence, produced before him by the Police, as per the sketch prepared by the IO, could cause the injuries mentioned in the postmortem report and the said injuries resulted in the death of the deceased. He has admitted the certificate regarding the weapon of offence, EXPW-17/RV/1. He has identified the weapon of offence "Khokhri" in the open court and it is marked as RV/A. In cross examination by counsel for accused No. 1, he has stated that he has not mentioned the name of weapon of offence "Khokhri" in his certificate, EXPW- 17-RV/1. The sketch of weapon of offence was prepared by the IO in his presence. He has not taken measurement of the weapon of offence. He has not 19 CRA No. 4/2015 mentioned the name of the police officer, who produced the dead body for postmortem. Any sharp weapon can cause injuries mentioned in the postmortem report. He has not mentioned in his report whether clothes of the deceased were torn and what was the colour of clothes. He conducted postmortem on the direction of Medical Superintendent, District Hospital, Poonch. 26.1. The witness has reiterated, in his cross examination, that the weapon of offence produced before him by the police, as per the sketch made by the IO, could cause injuries mentioned in the postmortem report of the deceased. He issued a certificate in this respect on the sketch. He has also emphasized that injuries caused by the weapon of offence, resulted in the death of the deceased. He has admitted the postmortem report and certificate regarding weapon of offence respectively EXPW-17-RV and EXPW-17RV/1 in his cross examination also. He has also admitted the weapon of offence in his cross examination again. 26.2. In view of the aforesaid, failure on the part of the prosecution to produce the medical officer who examined the informant, PW-11-Naranjan Singh, who stated to have received a cut injury while trying to save the deceased would not affect the main occurrence that it was the appellant who inflicted two fatal blows on the vital parts of the body of the deceased and killed him. Therefore, facts and circumstances of Saroj Sahu (supra) relied upon by learned counsel for the appellant are distinguishable from the facts of the present case.
27. This is the crux of the prosecution evidence and as already stated that accused persons denied the allegations and imputations arrogated to them in the testimonies of the prosecution witnesses in their statements under Section 342 Cr.P.C. and they examined sole witness DW-Gurmeet Singh.
28. DW-Gurmeet Singh has stated that deceased was a police official. There was a „Path‟ organized in the house of Mst Lajia Kour in their mohalla during the 20 CRA No. 4/2015 intervening night between 19th and 20th of June, 2010. He was present there. The deceased and his family members were also also present there, but accused- Amarjeet Singh was not present there. House of accused is situated at a distance of 30/40 yards from the said house and accused was present in his house. In the morning, when he went towards the Nallah, he saw the deceased between the Nallah and the road at a distance of about 100/150 yards. He heard hue and cry, went to the spot and saw that the deceased, while running, had put his hands on his chest and thereafter the deceased died without saying anything. He did not see accused Amarjeet Singh on the spot. In cross examination by the Prosecution, he has stated that he remained in the house where the path was being held. He does not know that accused stayed in whose house on the said night. He went to Nallah at 6:00 a.m. He was not present on the spot at the time of occurrence and had seen the deceased in injured condition.
APPRECIATION OF EVIDENCE
29. The prosecution case hinges on the testimonial potency of the eye witnesses and the medical evidence in support thereof. Learned trial Court besides relying upon the direct ocular evidence and the autopsy report, has relied upon disclosure statement made by the appellant and consequent recovery and seizure of the weapon of offence.
30. It is pertinent, at the outset, to note that all the eye witnesses examined by the prosecution in the present case are family members and close relatives of the deceased and they appear to be natural witnesses to the occurrence because occurrence, in the present case, is alleged to have taken place early morning in the house of the deceased and it was only hue and cry raised by the deceased and 21 CRA No. 4/2015 his family members, which attracted attention of the neighbourers and passersby on the spot.
31. PW-13 is mother of the deceased and PW-14 is sister of the deceased, who is blind by birth. Both these witnesses, giving a vivid account of the occurrence, have stated that on 19.06.2010, Saturday, the appellant at about 10:00 p.m. came to their house by crossing over the wall and asked the deceased to open the door but they did not allow the deceased. Appellant came back next morning at about 7:00 a.m. and demanded a motor from the deceased. Appellant and deceased went towards Kacha Kitchen of the house to bring the motor. However, the appellant-accused went to the wife of the deceased in a Pacca Kitchen. When deceased went to Pacca Kitchen and found the appellant and his wife, Sunita Kour-co-accused, in a compromising position, he objected to it and appellant took the deceased to Kacha Kitchen and stabbed him with a "Khokhri" in his chest. Deceased was seriously injured, he ran out of Kacha Kitchen and cried "Chacha Ji Bachao, Chacha Ji Bachao" and fell unconscious in the lawn of his Uncle-PW-11-Naranjan Singh. The appellant, who was chasing the deceased dealt another stab blow in his neck and killed him on the spot. Statements of mother and blind sister of the deceased have been duly corroborated by two sisters of the deceased, PWs-8 and 15, their husbands and brothers-in-law of the deceased PWs 3 and 7. All these closed relatives of the deceased viz. sisters and brothers-in-law of the deceased have deposed on the similar lines that appellant- accused, after crossing over the wall, came to the house of the deceased in the night, enquired about him and when he was informed by the mother of the deceased that he was sleeping, the appellant returned next morning and asked about the motor and Rs. 1,000/-. They went to the Kacha Kitchen where they had some altercation and exchange of hot words, upon which, appellant stabbed the 22 CRA No. 4/2015 deceased in the chest. The deceased, in order to save himself, ran out of the Kacha Kitchen and went to the lawn of his Uncle PW-11-Naranjan Singh, where he fell unconscious, however, appellant, who was following the deceased armed with "Khokhri", inflicted second stab on the neck of the deceased and killed him on the spot. Statements of these witnesses have also been corroborated by PW- 11-Naranjan Singh, the informant, who happens to be Uncle of the deceased. He has also stated that on 20.06.2010 on Sunday, at about 7:15 am, he heard the deceased crying "Chacha", his wife PW-12 told him that something had happened to deceased, unconscious in their lawn. The couple, PWs- 11 and 12 came to the spot and saw that deceased had kept both of his hands on his abdomen and when they remove his hands they saw a deep wound, which was bleeding, meanwhile, appellant-accused-Amarjeet Singh came running after him and gave another stab injury on the neck of the deceased and killed him on the spot. PW-11 has also stated that he tried to snatch the weapon of offence "Khokhri" from the hands of the appellant, due to which, he received a cut injury on his hand. His wife PW-12 has also stated that when her husband-PW-11 tried to snatched "Khokhri" from the hands of the accused, he received an injury and PW-11-Naranjan Singh was also threatened by the accused that now it was his turn. Statements of aforesaid prosecution witnesses including mother, three sisters, two brothers-in-laws, uncle and aunt of the deceased have also been supported by PW-2, Amrik Singh, cousin of the deceased, who has also made a similar statement.
31.1. On careful analysis of the statements of aforesaid prosecution witnesses, it is evident that since the occurrence took place in the house of the deceased, at the wee hours of the morning i.e. at about 7:00/7:15 am, therefore, aforesaid witnesses, being close relatives i.e. mother, sisters and brothers-in-law of the 23 CRA No. 4/2015 deceased, being present in the house, are most natural witnesses to the occurrence. It was cries and shrieks of these witnesses as also the cries of the deceased for help which attracted the attention of the neighbourers and passersby, who came to the spot after the occurrence only to see that deceased had been killed by the appellant.
BLIND WITNESS
32. Mr. Shan, learned counsel appearing for the appellant, at the foremost, has questioned the credibility of PW-14-Balwant Kour, who is blind by birth. Mr. Shan has argued that PW-14-Balwant Kour has stated about certain facts which could only be seen by a person with his naked eyes. Therefore, according to Mr. Shan, the testimony of PW-14-Balwant Kour, who is blind by birth, is sufficient to discredit the prosecution evidence, because it was only PW-14, according to Mr. Shan, who was present at the scene of occurrence as per the prosecution case at the time when appellant first stabbed the deceased in the Kacha Kitchen. 32.1. The argument of learned defence counsel, on first blush, appears to be attractive, but sans legal force, on careful examination of the statement of PW- 14-Balwant Kour, which is duly supported by rest of the prosecution witnesses, who not only heard the cries of the deceased for help, but witnessed the appellant following the deceased and inflicting second stab in his neck in the lawns of his uncle.
32.2. PW-14-Balwant Kour, admittedly, was residing in the house of the deceased from the very beginning. She has stated that but for cooking, she was doing all the household chores. It is also in the evidence that appellant was her neighbourer and was a regular visitor to their house. The co-accused-Sunita Kour, was her sister-in-law, wife of the deceased, and deceased was her real 24 CRA No. 4/2015 brother. No doubt, there appears to be some exaggerations in the testimony of PW-14-Balwant Kour, when she states that when she and her mother came out, they saw accused-Amarjeet Singh had come to their house by crossing over the wall, next day when appellant and deceased went towards Kachan Kitchen, appellant-Amarjeet Singh went to co-accused, Sunita Kour in the Pacca Kitchen and when the deceased found his wife with the appellant, he objected to it and appellant caught hold of the arm of the deceased and took him into the Kacha Kitchen and stabbed in his abdomen. PW-14 has also deposed that deceased came out running from the Kacha Kitchen crying "Chacha ji Bachao, Chacha Ji Bachao" and fell unconscious in the lawns of his uncle where appellant, who was following him, stabbed in the neck of the deceased. Admittedly, all these facts could be witnessed by a person with naked eyes only and not by a person who is blind by birth.
32.3. However, it is an oft repeated idea that blind people can compensate for their lack of sight with enhanced hearing and other abilities. That is why they are recognized as „specially abled‟ or „differently abled‟. It is assumed that the improvement in other abilities of blind people is a result of learning behaviour. Blind people, in the absence of vision, pay attention to auditory cues and learn how to visualize and use them more efficiently. A blind person certainly cannot describe the way things LOOKED, but they can certainly perceive and visualize, with their special abilities and describe the way things sounded, smelled etc. If a blind person can identify or recognize a person by his voice, and he is a responsible and a reliable adult, we see no reason to discredit his testimony as a whole.
32.4. If the present case is approached with this principle in mind, sight cannot be lost of the fact that appellant was a neighbourer of the deceased in whose 25 CRA No. 4/2015 house PW-14-Balwant Kour was residing by birth and appellant, being a neighbourer and a distant relation, was a regular visitor to their house. Appellant went to the house of the deceased to demand a motor and a sum of Rs. 1,000/-. It appears that appellant and deceased had some business transactions and, therefore, PW-14, who is residing with his brother, the deceased, in his house right from her childhood could easily recognise his voice. She could also identify the voice of other family members, relatives and nears and dear ones. The facts and circumstances surrounding the occurrence also helped the blind witness to visualize as to what was happening around, when there was altercation and exchange of hot words between the appellant and his brother-the deceased, the deceased running out of Kacha Kitchen after he was stabbed in the chest by the appellant crying "Chacha Ji Bachao, Chacha Ji Bachao", the appellant-accused stabbing again in the neck of the deceased and the subsequent altercation which took place between the appellant and the informant, PW-11-Naranjan Singh, who was not only threatened by the appellant, but when he tried to snatch "Khokhri"
from the hands of the appellant, he received a cut wound. PW-11-Naranjan Singh-the informant has also stated that when he asked the appellant why he has killed the deceased, the appellant threatened that, now it was his turn. The blind witness PW-14-Balwant Kour, could easily recognise these altercations, the hue and cries and exchange of words between the appellant and other prosecution witnesses and threats being extended by the appellant. Therefore, testimony of PW-14-Balwant Kour, appears to be natural and trustworthy, particularly, when her statement has been corroborated by rest of the prosecution witnesses, who have witnessed the appellant stabbing the deceased and killing him on the spot. The blind witnesses has given a vivid account of the occurrence, not by recognizing the altercations between the appellant and the deceased and appellant 26 CRA No. 4/2015 and other prosecution witnesses, but also by observing from the facts and circumstances surrounding the occurrence. In the circumstances, much importance cannot be attached to some exaggerations or improvements made here and there by the blind witness and if a testimony is read, as a whole, it inspires confidence. If the testimony of the blind witness, PW-14-Balwant Kour is carefully analysed as a whole, it is evident that though the witness lacks vision, but her version has vision and, therefore, her testimony inspires confidence. RELATED WITNESSES
33. Learned counsel for the appellant has also assailed the impugned judgment on the ground of proximity between deceased, the informant and all the prosecution witnesses. Mr. Shan, has submitted that it is the prosecution case and also the statements of prosecution witnesses that occurrence took place in a Mohalla, where there were several houses, a road and people were passing by, therefore, failure on the part of the prosecution to produce independent witnesses casts a serious doubt on the credibility of the prosecution case. 33.1. Admittedly, all the prosecution witnesses examined by the prosecution during the trial are close relatives of the deceased including his mother, real sisters, brothers-in-law, uncle, aunt and cousin sister. It is also in the record that there was a road near the house of the deceased and there were houses around. However, we have already discussed that occurrence, in the present case, took place in one of the rooms i.e. Kacha Kitchen of the house of the deceased, therefore, family members of the deceased are the most natural witnesses to the occurrence. Be it noted that, altercation between the appellant and the deceased first attracted the attention of two ladies, mother and blind sister of the deceased, who, then went to the spot and found the deceased coming out of the kitchen in 27 CRA No. 4/2015 injured condition, appellant followed the deceased, the deceased fell down crying for help in the lawn of his uncle, PW-11-Naranjan Singh, which attracted the attention of his uncle and aunt and his cousin sister, where the appellant inflicted second stab in the neck of the deceased and killed him then and there. The hue and cry of the prosecution witnesses, who happened to be close relatives of the deceased and cries of the deceased for help attracted the attention of the neighbourers and passers-by, who assembled on the spot after the deceased was done to death. There is nothing brought on the record by the defence to establish that neighbourers or passersby had assembled on the spot at the time accused made an attempt on the life of the deceased. Defence has not only failed to establish the presence of any other witness on the spot, but it failed to shake the credibility of the prosecution witnesses in the cross examination. Even the solitary defence witness examined by the appellant has not made any statement in this respect. Therefore, we find ourselves in agreement with the observation of learned trial Court that prosecution witnesses, being closely related to the deceased, by itself is not a reason to reject the prosecution evidence. It is otherwise well founded in law that close relatives of the deceased are interested to ensure that real culprit is punished and a close relation would be a last person to screen the offender and falsely implicate somebody else. We are fortified in our opinion by an observation of Hon‟ble Supreme Court captured in paragraph- 25 of Kuria and Anr. v. State of Rajasthan; AIR 2013 SC 1085. It reads thus:
"25. The testimony of an eye-witness, if found truthful, cannot be discarded merely because the eye-witness was a relative of the deceased. Where the witness is wholly unreliable, the Court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated."28 CRA No. 4/2015
33.2. In view of the above, we find the testimony of related witnesses, in the present case, consistent, credible and trustworthy and, therefore, reject the contention of learned counsel for the appellant that testimonies of eye witnesses must be disbelieved because they are close relatives of the deceased and hence interested witnesses.
CONTRADICTIONS
34. Learned counsel for the appellant has also questioned the impugned judgment on the ground that there are serious contradictions and discrepancies in the prosecution evidence. According to Mr. Shan, there are serious contradictions between the statements made by the prosecution witnesses with respect to the occurrence in the Court and their statements recorded by the police during investigation under Sections 161 and 164-A Cr.P.C.
34.1. The basic principle of criminal jurisprudence is that prosecution is obliged to prove its case beyond reasonable shadow of doubt to sustain conviction of an accused and it is „core‟ of the prosecution case, which prosecution is called upon to establish in a trial. It shall be profitable to recall, though, at the cost of brevity, that the crux of the prosecution is that accused came to the house of the deceased to demand a motor and there was exchange of hot words between the appellant and the deceased. Appellant dragged the deceased to Kacha Kitchen of the house and stabbed him in his chest. It is pertinent to note that deceased was not spared by the appellant when he tried to escape after he was first stabbed by him in his chest. Deceased came out running crying for help and fell unconscious in the lawn of his uncle, where appellant, who was chasing the deceased, again stabbed him in his neck and killed him on the spot. We have already discussed that all the prosecution witnesses, who appear to be the most natural witnesses to the 29 CRA No. 4/2015 occurrence have given a photographic narration of the same, during their respective testimonies in the court. The testimonies of these prosecution witnesses are duly corroborated by medical evidence or the autopsy report. 34.2. A person whose near or dear is being killed before his eyes, the feelings run high and a witness tend to exaggerate here and there to ensure that real culprit does not escape the clutches of law and is punished. We need to understand that when an occurrence takes place all of a sudden, a witness is overwhelmed with an element of surprise, anguish and pain and therefore, mental faculties of witnesses are not attuned to absorb vivid details of the incident. In the circumstances, a witness is not expected to give a panoramic and graphic account of the occurrence and recall the sequence of events, regarding the exact time of incident which took place in a rapid succession before his eyes, duration of incident which took place in his presence as also the number of people who appeared on the spot. Power of observation differs from person to person. However, a truthful witness will be able to recall and provide a vivid account of the „actual occurrence‟. A similar view has been expressed by Hon‟ble Apex Court in State of Rajasthan v. Smt. Kalki and anr.; AIR 1981 SC 1390 that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful, the witnesses may be and these discrepancies are due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition, such as, shock and horror at the time of occurrence and the like.
34.3. Admittedly, PW-14-Balwant Kour has not stated in her statement under Section 164 Cr.P.C. that there were frequent phone calls, when deceased picked the calls those were dropped and when deceased checked the phone, he came to know that those were calls made by the appellant-accused, which has been stated 30 CRA No. 4/2015 by P-14 during her statement in the Court. But it is pertinent to mention that she has narrated the whole occurrence in her statement before the Magistrate. Similarly, PW-3 stated in the Court that deceased was wearing Turban at the time accused appeared on the spot, which is not mentioned in her statement under Section 164 Cr.P.C. PW-7 has stated that he told the police that deceased while running was saying "Chacha Bachao, Chacha Bachao", but it is missing in her statement under Section 161 Cr.P.C., PW-8 has stated that she told the police that there was conversation between the appellant and co-accused in the kitchen, but this fact is not mentioned in her statement under Section 161 Cr.P.C. Similarly, statement made by PW-13 that accused came to the spot after crossing over the wall of the house, is missing in his statement under Section 161 Cr.P.C. PW-13 has also stated that when deceased saw the appellant and co-accused in a compromising position in the Pacca Kitchen, deceased told the appellant that co- accused was is his wife and not his wife and on this, appellant took the deceased from Pacca Kitchen to Kacha Kitchen, but these facts are not mentioned in her statement under Section 164 Cr.P.C. However, all these peripheral statements made by the prosecution witnesses do not affect the core of the prosecution case that they witnessed the appellant stabbing the deceased twice in his chest and neck killing him on the spot.
34.4. The maxim of "falsus in uno falsus in omnibus", (false in one thing false in everything), has neither received general acceptance in India nor has come to occupy the status of rule of law. It may be a rule of caution, but certainly not a mandatory rule of evidence. It is duty of the courts in India to separate grain from the chaff to find out whether testimonies of prosecution witnesses with respect to the sum and substance of prosecution case inspires confidence or not. 31 CRA No. 4/2015 34.5. The improvements or variations in order to discredit the prosecution version, must essentially relate to material particulars of the case. We do not find any major contradiction in the statements of the prosecution witnesses. In the present case, pertinently, the defence has failed to elicit any material contradiction or embellishment regarding the core of the occurrence during cross examination of the eye witnesses. Minor variations, on trivial issues, will not tilt the balance in favour of the appellant in the totality of the facts and circumstances attending the present case.
34.6. Reliance placed by Mr. Shan, learned counsel appearing for appellant on Javed Masood, C. Maniappan and V. C. Shukla (supra) is of no avail, because even if some of the witnesses, who have not stated anything incriminating against the appellant, have not been declared hostile by the prosecution, prosecution has succeeded to establish guilt of accused on the basis of direct trustworthy evidence.
MEDICAL EVIDENCE
35. Statements of the prosecution witnesses that appellant first stabbed in the chest of the deceased and then in his neck, is duly supported by the autopsy report. PW-16-Dr. Rakesh Verma, conducted autopsy on the dead body of the deceased in District Hospital, Poonch. Before post-mortem, he found one punctured wound about 5 cm in width and 13 cm in depth over left side of chest over heart rupturing positing of left lung, heart and big vessels. He also found a punctured wound about 3 cm in width and 4 cm deep over right side of the neck rupturing big vessels of neck area on the dead body of the deceased. In his opinion, the deceased has died due to cardio respiratory arrest due to hemorrhagic shock, as a result of massive bleeding from heart, lung and big 32 CRA No. 4/2015 vessels of the neck and time since death was less than six hours at the time of autopsy, which is the time of occurrence. Pertinently, the weapon of offence was produced by the investigating agency before PW-16-Dr. Rakesh Verma and he has certified that said weapon of offence i.e. "Khokhri" could cause the injuries mentioned in the post-mortem report of the deceased. He has also issued certificate with respect to the sketch of the weapon of offence produced by the investigating officer and he has clearly stated that injuries caused by the weapon of offence shown to him, has resulted in the death of the deceased. He has identified the weapon of offence in the open Court. The aforesaid autopsy report and the statement of PW-16-Dr. Rakesh Verma that he found a punctured wound of about 05 cm in width and 13 cm in depth over left side of the chest, over heart and a punctured wound about 03 cm in width and 04 cm deep over right side of the neck, corroborates the testimonies of eye witnesses examined by the prosecution, during trial, who saw the appellant-Amarjeet Singh inflicting the aforesaid injuries upon the deceased in the lawn of PW-11-Naranjan Singh, the informant. The certificate given by PW-16-Dr. Rakesh Verma that aforesaid injuries were possible due to the weapon of offence i.e. "Khokhri" produced by the investigating agency before him, is also sufficient to prove that "Khokhri" seized by the investigating agency in the present case and which, according to the prosecution witnesses, appellant at the time of occurrence was armed with, has been used by the appellant to kill the deceased.
DISCLOSURE, RECOVERY AND SEIZURE OF THE WEAPON OF OFFENCE
36. Prosecution has next relied upon the disclosure statement made by the appellant, consequent whereupon, the weapon of offence, "Khokhri" came to be recovered and seized at the instance of the appellant. As per the prosecution 33 CRA No. 4/2015 story, the appellant-accused made a disclosure during investigation on 23.06.2010 that he had concealed the "Khokhri" in the bushes behind the house of PW-11-Naranjan Singh and only he was aware about it. The said disclosure statement, EXPW-11-GA, came to be recorded by the Investigating Officer. Pursuant to this statement, weapon of offence came to be recovered and seized by the Investigating officer on the same day at the instance of the appellant/accused vide EXPW-11-GA/1. PWs-1 and 10 have been cited as witnesses to the disclosure of the appellant as also recovery and seizure of the weapon of offence. Though PW-1 has turned hostile during the trial, but PW-10 has testified to the making of the disclosure statement of the appellant-Amarjeet Singh and recovery and seizure memos pursuant to the said statement made by the appellant.
36.1. Be that as it may, since the entire prosecution is based on direct evidence and the testimonies of the eye witnesses that it was the appellant, who inflicted two stab blows on the person of the deceased and killed him on the spot, therefore, non-recovery and seizure of weapon of offence is of no consequence. It is settled position of law that non-recovery of weapon of offence pales into insignificance, if prosecution case is otherwise established on the basis of cogent, trustworthy and reliable prosecution evidence. Hon‟ble Supreme Court in State of Rajasthan v. Arjun Singh and Ors. etc. reported as AIR 2011 (SC) 3380 has ruled as below:-
"Mere non recovery of pistol or cartridge does not detract the case of the prosecution where clinching and direct evidence is acceptable."
36.2. A similar view has been expressed by the Hon‟ble Supreme Court in Md. Jamiluddin Nasir v. State of West Bengal reported as AIR 2014 (SC) 2587. Relevant extract is as below:-
34 CRA No. 4/2015
"Non production of weapon of offence used in attack by accused - neither fatal to prosecution nor any adverse inference can be drawn on that score."
36.3. Similarly, Hon‟ble Supreme Court in Nankaunoo v. State of U.P. reported as AIR 2016 (SC) 447 also made a similar observation in following words:-
"Unimpeachable oral evidence coupled with the medical evidence that deceased met with homicidal death due to gunshot injuries and mere non recovery of weapon of offence viz., „countrymade pistol‟ does not materially affect prosecution case."
36.4. It is manifest from the afore quoted case law that non recovery of the weapon of offence pales into insignificance, if the prosecution case is otherwise proved on the basis of direct clinching evidence.
STATEMENT OF POLICE WITNESSES
37. Mr. Shan, learned counsel appearing for the appellant has argued that since statement of Police official, PW-10-Constable-Ghulam Abass Shah is not supported by independent witness PW-1-Kuldeep Singh, therefore, disclosure statement made by the appellant/accused being shrouded with suspicion and the consequent recovery and seizure of weapon of offence, being doubtful, appellant is liable to be acquitted.
37.1. It is by far a settled position of law that statement of a police official or a Government servant for that matter cannot be viewed with suspicion and discarded solely on the presumption that a police officer or a Government servant should be viewed with distrust. As a matter of fact, there is no absolute command of law that a police officer or a Government official cannot be cited as a witness and their testimonies should be viewed with suspicion, as held by Hon‟ble Supreme Court in Kashmiri Lal v. State of Haryana; AIR 2013 SC (Cri.) 1419. It was also observed by Hon‟ble Supreme Court that it is a matter of common experience that public at large show their disinclination to come 35 CRA No. 4/2015 forward and become witness. If the testimony of a police officer is found to creditworthy, the Court can definitely act upon the same. This is based on the principle that it is the quality of evidence which weighs over the quantity of evidence. Therefore, if the evidence of a police official is of sterling quality, there is nothing, in law, which prevents to act upon such evidence of a police officer. PW-10-constable-Ghulam Abass Shah has clearly stated that appellant made disclosure in his presence that he had concealed the weapon of offence in the bushes behind the house of PW-11-Naranjan Singh, the informant and it was only he who was aware about it and could recover the same. Consequent thereupon, he led the Investigating Officer to the place of recovery and recovered the weapon of offence from the bushes behind the house of PW-11-Naranjan Singh, the informant which came to be seized by the investigating officer. Pertinently, the defence has failed to discredit the testimony of the police official in his cross examination and he, being a police official by itself, cannot be a ground to discard his testimony. Although PW-1 has turned hostile and has denied the contents of the memos of disclosure, recovery and seizure, but he has identified his signatures on these documents. It is worthwhile to note that PW-1 is Lumberdar of the village for the last four years and he is matriculate and he has stated that he would make an enquiry before signing any document. In these circumstances, it is not expected of an educated person, holding an important position of Lumberdar in the village, to sign blank papers on the asking of a police officer. Therefore, we have no hesitation to hold that prosecution has succeeded to prove the disclosure statement made by the appellant and the consequent recovery and seizure of the weapon of offence at the instance of the appellant which, according to PW-16-Dr. Rakesh Verma was sufficient to cause death of the deceased.
36 CRA No. 4/2015HOSTILE WITNESS
38. Mr. Shan has next made an attempt to harp on the testimony of witnesses, who turned hostile, during the trial. PW-5 has stated that on hearing hue and cry from the house of the informant-PW-11, he went to the spot and saw the deceased, who was unable to speak. He also stated that police came to the spot and made an enquiry. Similarly, PW-9 has stated that he saw a number of persons gathered at the road near the house of the deceased where he came to know that deceased had died and he saw dead body of the deceased in the lawn of the PW-11-Naranjan Singh. It is trite in law that entire evidence of a hostile witness cannot be discarded in toto and treated as effaced from the record but testimony of a hostile witness can be accepted to the extent found reliable on careful appraisal of the evidence. We are fortified, in our opinion, by the following observation made by Hon‟ble Supreme Court in Khujji v. State of M.P.; AIR 1991 SC 1853:
"The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 : (AIR 1976 SC 202), Rabinder Kumar Dey v. State of Orissa, (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 : (AIR 1979 SC 1848), that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
38.1. Though both PWs-5 and 9 have turned hostile, but they have admitted that they heard hue and cry from the house of the informant-PW-11-Naranjan Singh and dead body of the deceased was lying in the lawns of the informant. 37 CRA No. 4/2015 Pertinently, lawn of PW-11 is the place of occurrence where deceased is alleged to have been killed by the appellant. Therefore, both PWs 5 and 7 though turned hostile, have supported the prosecution case to the extent that hue and cry emanated from the house of the informant and dead body of the deceased was found in the lawn of PW-11-Naranjan Singh- the informant.
FAILURE TO PROVE FIR
39. The impugned judgment has next been called into question on the ground of failure on the part of the prosecution to get the FIR exhibited during the trial. According to Mr. Shan, since prosecution has failed to prove the FIR, therefore, same is inadmissible in evidence and whole prosecution case is liable to be thrown out. We do not subscribe to the opinion of the Mr. A. K. Shan, learned counsel for the appellant for the following reasons.
39.1. PW-11-Naranjan Singh-the informant, when saw the appellant/accused stabbing the deceased in his neck and killing him on the spot, immediately informed the concerned Police Station through his mobile regarding the occurrence and named the appellant. It is pertinent to note that informant-PW-11- Naranjan Singh has admitted the contents of the FIR during his deposition before the trial court. Since there was telephonic information furnished by the informant to the concerned Police Station, it was entered in the daily diary, on the basis of which, FIR, in the present case, came to be registered. Obviously, the informant- PW-11-Naranjan Singh, at the time of lodgement of the report was not in the Police Station because telephonic information was flashed to the Police Station, therefore, his signatures could not be obtained on the FIR or „Roznamcha‟. We find that FIR has been duly signed by the SHO of the concerned Police Station. Since PW-11 has not only admitted contents of the FIR, but has made a 38 CRA No. 4/2015 deposition on the lines what was stated in the FIR, therefore, merely because FIR has not been formally „exhibited‟ does not mean that prosecuting agency has failed to prove FIR. The informant-PW-11 has stated in clear terms that he lodged the report with Munshi of the Police Station through his mobile No. 94196-72967, which fact is established from the contents of the „Roznamcha‟ and the „FIR‟. PW-11-Naranjan Singh has made a similar statement in the court. In this view of the matter, entire prosecution case cannot be thrown overboard due to negligence on the part of the investigating agency to produce the concerned SHO and get the FIR exhibited.
NON-EXAMINATION OF IO
40. Impugned judgment of conviction of the appellant has also been called into question on the ground of failure of the prosecution to produce investigating officer in the Court.
41. Non examination of Investigating Officer per se does not vitiate a criminal trial. We have already noticed that prosecution has succeeded to establish its case on the basis of direct evidence provided by eye witnesses to the occurrence, which is duly supported by the medical evidence. Learned counsel for the appellant has made an attempt to highlight some exaggerations made by the eye witnesses in their depositions made during the trial and it has already been observed that those discrepancies in the statements of eye witnesses are minor in nature and do not relate to material particulars of the prosecution case that it is appellant who twice stabbed the deceased and killed him on the spot. In these circumstances, learned counsel for the appellant has failed to highlight the prejudice which has been caused to the accused with non examination of the Investigating Officer. If prosecution has succeeded to make out a case for 39 CRA No. 4/2015 conviction on the basis of eye witnesses account, which is duly supported by the autopsy report and the recovery and seizure of the weapon of offence consequent upon the disclosure of the accused, failure on the part of the prosecution to produce the IO, cannot be fatal to the entire prosecution case, unless a serious prejudice is caused to the accused, which, learned counsel for the appellant, in the present case, has failed to highlight.
42. Apposite in this context shall be a reference to the following observation of Hon‟ble Apex Court in Bahadur Naik v. State of Bihar; AIR 2000 SC 1582:
"The appellant has not been able to shake the credibility of the eye- witness. No material contradiction in the case of the prosecution has been shown to us. Under the facts and circumstances, the non- examination of the Investigating Officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination."
DELAY IN SENDING FIR TO THE MAGISTRATE
43. Learned counsel for the appellant also seeks to assail the impugned judgment on the ground of delay in forwarding copy of the FIR to the Magistrate empowered to take cognizance of the offence.
43.1. No doubt, an officer incharge of the Police Station, in terms of section 157 Cr.P.C. having reason to suspect the commission of offence, which he is empowered to investigate under Section 156 Cr.P.C., is obliged to send a report to the Magistrate who is empowered to take cognizance of such offence without undue delay. However, it cannot laid down as a rule of universal application that whenever there is delay in sending the report to the Magistrate, the prosecution version becomes unworthy of credence and trial stands vitiated. The legal position in this respect is that if positive evidence is available on the record that information was given to the officer incharge of the Police Station without delay and FIR was also recorded without unreasonable delay and investigation started 40 CRA No. 4/2015 on the basis of said FIR and there is no other infirmity brought to the notice of the Court, then, in the absence of any prejudice to the accused, it cannot be held that investigation was tainted and prosecution version is unreliable. We may gainfully refer in this respect to Palla Singh v. State of Punjab; (1972) 2 SCC 640, Sandeep v. State of U.P.; 2012 (6) SCC 107 and Anil Rai v. State of Bihar; (2001) 7 SCC 318.
43.2. In this view of the matter, Bijoy Singh (supra) relied by learned counsel for the appellant is not attracted in the present case to help the appellant in any way.
DEFENCE EVIDENCE
44. In so far as defence of the appellant is concerned, appellant in his statement under Section 342 Cr.P.C. has stated that informant-PW-11-Naranjan Singh has involved him in a false case due to old animosity as he is a police official. However, solitary witness examined by the appellant DW-Gurmeet Singh has not stated anything regarding enmity between the appellant and the informant. All what DW-Gurmeet Singh has stated, is that he was present in the religious „Path‟ in the house of one Lajia Kour in their Mohalla during the intervening night of 19th and 20th of June, 2010. The deceased and his family members were also present there. The defence witness goes on to state that appellant was not present there and he did not know where was he during the night. Pertinently, DW-Gurmeet Singh further goes on to state that in the morning at about 6:00 am he saw the deceased in between a Nallah and the road. Surprisingly, he also stated that he heard hue and cry, went to the spot and saw the deceased running while keeping his hand on his chest and when villagers assembled on the spot, deceased died without saying anything. 41 CRA No. 4/2015 44.1. The testimony of solitary defence witness DW-Gurmeet Singh on the face of it does not inspire confidence because of self contradictions. On the one hand, he states that he found dead body of the deceased in between Nallah and a road and in the same breath, he states that he heard hue and cry, went to the spot and saw the deceased running while keeping his hand on his chest and when villagers assembled on the spot, deceased died without saying anything. Particularly, the sole defence witness has not stated anything about any previous animosity between the appellant and the informant or that appellant has been implicated in a false case.
CONCLUSION
45. From the aforesaid analysis, it is evident that appellant had a pre-plan to kill the deceased, because he appeared in the house of the deceased, armed with a sharp edged weapon. He came to the house of the deceased on the pretext of demanding a motor and an amount of Rs.1,000/- and after brief altercation, he took the deceased to Kacha Kitchen of the house and stabbed him in his chest without any provocation on his part. Not only this, when deceased came out of Kacha Kitchen crying for help and went towards the house of his Uncle, accused chased him and inflicted another stab blow in his neck and killed him on the spot. All the prosecution witnesses have given a vivid and graphic account of the occurrence, which took place in their presence. The clear and unambiguous testimonial potency of the prosecution witnesses is duly supported by the medical evidence and the autopsy report, that two external injuries on the chest and the neck of the deceased were found at the time of post-mortem. The medical officer has also certified that injuries found on the person of the deceased were possible with the weapon of offence i.e. "Khokhri" produced before him by the investigating officer and, according to him, injuries caused to the deceased were 42 CRA No. 4/2015 sufficient, in the ordinary course, to cause death of the deceased. Recovery and seizure of the weapon of offence consequent upon the disclosure statement of the accused provides ample support to the prosecution case. Though prosecuting agency has failed to get the FIR exhibited, however, in our considered view, since the informant has admitted the contents of the FIR and those of the Roznamcha in his deposition before the trial Court, prosecution case, on this count alone, cannot be thrown overboard. Appellant has failed to show any prejudice caused to him by non-examination of the Investigating Officer in the present case, in particular, in view of meticulous and immaculate version of the eye witnesses to the occurrence.
46. On the analysis of the aforesaid evidence, we have no doubt in our mind that appellant stabbed the deceased twice, on vital parts of his body, with a sharp edged weapon in furtherance of criminal intention of causing such bodily injury as he knew it to be likely to cause death of the deceased, which act of the appellant does not fall within the exceptions contained in Section 300 RPC. Since appellant trespassed into the house of the deceased, having made preparation for committing his murder, he has been rightly held guilty of the offence punishable under Section 452 RPC. As per SRO 175 dated 23.04.1974 issued by the Government of J&K in exercise of power conferred under Section 4 of the Arms Act 1959, read with Government of India, Ministry of Home Affairs Notification No. F-18/2/62/(1) PLV dated 01.10.1962 applicable to the State of J&K, acquisition, possession and carrying of a sharp edged weapon with a blade of more than 06 inches long or 02 inches wide is prohibited. As per the sketch of the weapon of offence, EXPW-17-RV/1, it was measuring 14 inches and 6 cms, out of which, 05 inches 06 cms is the handle and 09 inches is the blunt and sharp part of the blade and its breadth is 02 inches in the middle. Therefore, the weapon of 43 CRA No. 4/2015 offence used by the appellant in the commission of offence, in the present case, being a prohibited weapon, hence, he has been rightly convicted by the trial Court for having in his possession prohibited weapon under Section 25(1-A) of the Arms Act.
47. Having regard to what has been observed and discussed above, we do not find any illegality much less perversity in the impugned judgment. Findings recorded by the trial court are lucid, well reasoned, well analysed and do not call for interference.
48. Hence the present appeal, being devoid of merit, is dismissed and impugned judgment of conviction and order of sentence are upheld. Appellant, who is already in custody, shall serve the remainder part of his sentence as directed by the trial court.
49. Reference made by learned trial court is accordingly confirmed.
50. Record of the trial court be returned forthwith.
(RAJESH SEKHRI) (ATUL SREEDHARAN)
JUDGE JUDGE
Jammu:
05.06.2024
Paramjeet
Whether the Judgment is Speaking? Yes.
Whether the Judgment is Reportable? Yes.
Paramjeet Singh
2024.06.05 15:33
I attest to the accuracy and
integrity of this document