Jammu & Kashmir High Court - Srinagar Bench
Apdes Pratap Singh vs State Of J&K on 12 September, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on : 23.05.2023
Pronounced on :12.09.2023
CRA No. 8/2007
Apdes Pratap Singh .....Appellant(s)/Petitioner(s)
Through: Mr. S.H. Thakur, Advocate.
Vs
State of J&K ..... Respondent(s)
Through: Mr. Faheem Nisar, GA
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. This appeal is directed against the judgment of conviction dated 03.04.2007 and order of sentence dated 10.04.2007 passed by the learned Sessions Judge, Budgam (hereinafter to be referred as "the trial court") in case titled "State vs. Apdesh Pratap Singh" in file No. 64/Sessions, whereby the learned trial court in charge sheet arising out of FIR No. 246 of 2001 of Police Station, Saddar under Sections 302, 307, 309 RPC, has convicted the appellant for commission of offences under Sections 304- II, 307 and 309 RPC. The appellant has been sentenced to seven years rigours imprisonment and a fine of Rs. 5,000/-under Section 304-II RPC, in default of payment of fine, he has been directed to undergo six months simple imprisonment. He has also been sentenced to seven years rigours imprisonment under Section 307 RPC. The appellant has been further 2 CRA No. 8/2007 sentenced to six months simple imprisonment and fine of Rs.500/- under Section 309 RPC, in default of payment of fine, he had been directed to undergo simple imprisonment for one month. All the sentences awarded were directed to be run concurrently.
2. This appeal has been filed by the appellant on the ground that the learned trial court has not rightly appreciated the evidence and further that the Doctor as well as the Investigating Officer were not examined by the prosecution, as such the appellant was required to be acquitted.
3. Learned Counsel for the appellant vehemently argued that the prosecution had miserably failed to prove its case but despite that the appellant has been convicted by the learned trial court. It was also argued that the learned trial court had put some facts as incriminating evidence to the appellant which never formed the part of evidence led by the prosecution and in fact, the allegations levelled in the charge-sheet were put to the appellant. The learned counsel further argued that no witness has deposed that he had seen the appellant firing, as it was quite dark when the occurrence took place. Much stress was laid by the learned counsel for the appellant that neither the Investigating Officer nor the Doctor, who conducted the post-mortem, were examined by the prosecution. He further submitted that there was no evidence that the appellant shot himself but still he was convicted for commission of offence under section 309 RPC.
4. Learned counsel for the respondents argued that the prosecution had proved the case by leading cogent evidence and the eyewitnesses have 3 CRA No. 8/2007 clearly deposed against the appellant. He further submitted that the prosecution case cannot be rejected on account of minor contradictions. Lastly, he submitted that there is no illegality in the judgment passed by the learned trial court that may warrant interference by this court.
5. Heard learned counsel for the parties and perused the record of the trial court.
6. The brief facts, as they emanate from the charge-sheet are that a written complaint was submitted by the Commanding Officer 71 Bn. of CRPF with the Police Station, Saddar stating therein that on 26.08.2001 at about 2300 hours, an information regarding movement of the militants in the nearby area was received from Commandant 98 Bn BSF by the Commandant. Accordingly, the entire camp of Sanat Nagar was put on alert. Ct./GD A. P. Singh of the Unit, who was rear Sentry of the headquarter line from 1250 hours to 0030 hours, was found slack on duty by the Adjutant of the Unit. After briefing the troops and pointing out normal short-comings, Shri, A. K. Jerari, AC OC -D/71 and Adjutant of the Unit ordered stand down. After five minutes of dispersal, Constable Ct/GD A. P. Singh, who was performing the duty of the rear Sentry of Headquarter line, after leaving his post, entered the room of ground floor of HC GD Sidh Nath Singh (BHM) of the Unit and opened fire on him, as a result of which HC/GD Sidh Nath Singh was killed on spot and HC GD Manager Singh CMH of HQ/Coy immediately came out from his room. He was also fired upon by the said Ct/GD A. P. Singh. As such, HC/GD Manager Singh sustained injuries by bullet shots. CT/DVR 4 CRA No. 8/2007 Virinder Singh rushed towards the firing side from D/71 lines with his weapon, he was also gunned down by the said CT/GD A. P. Singh. Further, CT A. P. Singh also attempted to commit suicide by firing from his weapon at himself and sustained serious bullet injuries. The dead and injured persons were taken to SMHS Hospital, wherefrom Ct/GD A. P. Singh was further referred to SKIMS, Soura.
7. On receipt of this information, FIR bearing No. 246 of 2001 was registered by the Police of Police Station, Saddar for commission of offences under Sections 302, 307 and 309 RPC on 27.08.2001 at 1.30 a.m. Investigation was entrusted to Mohd Iqbal, ASI. After completion of the investigation, charge sheet was laid by the Investigating Officer against the appellant for commission of offences under Sections 302, 307 and 309 RPC before the Court of learned Chief Judicial Magistrate, Budgam, who vide order dated 22.09.2001 committed the case to the learned trial court. The appellant was charged for commission of offence under sections 302, 307, 309 RPC vide order dated 22.09.2001. Since the appellant did not plead guilty, the prosecution was directed to lead evidence. Out of 16 witnesses, the prosecution examined 14 witnesses.
8. It was urged by the learned counsel for the appellant that the learned trial court has not rightly appreciated the evidence and has wrongly convicted the appellant. In order to consider the issues raised by the appellant and to examine as to whether the learned trial court has rightly determined the guilt of the appellant or not, it is necessary to have a brief resume of the evidence led by the prosecution.
5CRA No. 8/2007
9. PW, Anand Kumar stated that he knew the accused. On the date of occurrence, he was posted in 71 Bn. of CRPF and at 10 P.M, he received an information that there was movement of the militants in Sanat Nagar Area and BSF was taking precautionary measures. He informed all the Sentries. He reached headquarter, where the accused was posted as a Sentry. He called the Sentry on spot, but did not receive any reply. He then called the Sentry, who was on duty on the front side of the headquarter and asked all the persons in the camp to remain alert. When he reached his residence in the camp, he heard the sound of firing. He immediately came out and checked the Sentries and enquired from the Sentries about the place from where the firing took place. He also started moving towards the place from where the firing was being done. He went to get his bullet proof and he heard that someone was abusing him. One Driver-Varinder Singh came out of the Company's gate. He heard the sound of firing again and the firing continued for 1/2 minutes. Constable Harjeet Singh came and told him that accused had killed BHM Havaldar Sidh Nath Singh and Driver-Varinder Singh and then fired on his own person. Then he went on spot and lifted the injured to the hospital. He informed his officers and thereafter FIR was registered. Police came on spot. His statement was recorded on spot. Deceased Sidh Nath Singh died in his own room and Driver-Varinder Singh died on the left side of the road. Their post-mortem was conducted and dead bodies were handed over to him. He proved the receipts of dead bodies (EXPW 2/I & EXPW 2/II). The dead bodies were also seized vide seizure memo 6 CRA No. 8/2007 (EXP 2/III). He proved the seizure memo. The seizure memo of the weapon was also signed by him (EXPW2/IV). During cross-examination, he stated that he did not lodge the FIR. He and other witnesses reached the spot after the occurrence. Whatever, Harjeet Singh had heard, he narrated the same to him. He was at the residence when the firing took place initially but did not know how the firing took place. Naranjan Singh, who had lodged the report with the Police Station, did not come to his office. He expressed ignorance about the seizure of cartridges by the Police, which were fired upon the deceased. He also expressed ignorance as to whether the bullets were recovered from the bodies of the deceased or not.
10. PW Wajis Tabi stated that he knew the accused. On 24.08.2001, he was on duty with 71 BN CRPF at Sanat Nagar, Srinagar. On 26.08.2001, he was on duty from 9.30 to 12 P.M. at headquarter as Sentry. First Adjutant Anand Kumar came and asked for torch, as he wanted to see as to whether other Sentries were on duty or not. Others had gone to sleep when Anand Kumar came for checking. Briefing was done and the men were told that militants had entered in the area. Everybody was asked to remain alert. When all went to their respective places, they heard the noise of firing after sometime. He took the position behind the wall as there was no bunker for the Sentry. Shots were heard. It was dark, as such it was not possible to see as to who was moving here and there. Where he was on duty, neither anybody went outside nor anybody came inside. Everyone in the Unit took his weapon and came out of the lines 7 CRA No. 8/2007 and started shouting. Then Ambulance came and the Police also came there. The injured were taken to hospital. He remained in his place where, he was on duty. When his duty ended at 12.00 in the night, he came down. He did not know anything about the injured. He heard that the driver had died. After the injured were taken to hospital, he heard that there was firing inside the camp. Sidh Nath Singh was fired upon. He was told by the people, who were inside the camp and outside the camp. He did not see the injured. He told the Police about his position, where he was on duty. He did not know whether the accused was on duty. Then he again stated that the accused was on duty on the rear side of the lines. The people, who were hit by the bullets, had gone inside after firing. He could not see as to where the appellant had gone. During cross- examination, he stated that he could not say as to who fired and from where the firing came.
11. PW-Shatak Kumar turned hostile and during cross-examination nothing incriminatory could be extracted from his testimony.
12. PW Manager Singh, Head Constable stated that on 26th August 2001 he was posted in 71 Bn. CRPF at Sanat Nagar. The appellant was working in the CRPF and posted as the Line Guard. At about 11 to 11.15 PM, Adjutant conducted inspection of the Guard and the appellant-A.P. Singh was on duty. Thereafter, the Adjutant called Havaldar Singh and Sidh Nath Singh and told them that Sentry was not discharging his duty in a proper manner. Thereafter, the camp was alerted by a whistle. The Adjutant checked the guard as information was received from the BSF 8 CRA No. 8/2007 control room that there were two militants in the area and they were asked to remain alert on duty. Thereafter, all of us went to our places. He too went to his room and slept. After some time, he heard the sound of fire. All the persons, who were sleeping, woke up. He took his weapon and opened the door and went towards the place of firing. In the meantime, he was also fired upon. He shouted and asked the Sentry as to wherefrom the firing was taking place. In the meantime, some more firing took place. Some bullets hit the roof and walls and then hit his left arm. A. P. Singh kept shouting and asked us to come out of the room. He was injured and he went to his room. The appellant went towards the main gate of the camp and took position. He wrapped his injury with loincloth. He told the people, who were in his room and there was again firing. The firing continued for 2/4 minutes and then someone shouted that A. P. Singh had fired on himself and fell down. Constable-Driver Virinder Kumar had died on spot. There was commotion. The Ambulance arrived on spot and officers also came there. He was taken to hospital. When firing took place for the first time, he was sleeping. When firing took place second time, he was enquiring from Sentry about the origin of firing. The more bullets were fired upon him. The bullets were fired by the appellant. As a result of the firing, Sidh Nath Singh, BHM also died. Nobody other than him was injured. The appellant was also hit by bullet. In fact, Bn. Havaldar Major had told something to the appellant in respect of his duty as he found him to be non-serious about his duty. Major might have told him something harsh that prompted the appellant 9 CRA No. 8/2007 to fire. During the cross-examination, he stated that the appellant was a nice soldier and was not having any enmity with any colleague or officer. He also had no enmity with the deceased driver. They were apprehending suicide attack on the camp as information was received that certain militants were present there. He was not on duty at that time and as such, went to his room for sleeping. He had slept for 10 to 15 minutes when he heard the firing. He could not say who was firing as he was in the room. He went outside the door. The bullets came from behind his head and after ricocheting off the roof and walls hit him. Four-Five bullets hit his arm and he was injured. He immediately came to his room and wrapped the injuries with the loincloth. He had no knowledge what the Adjutant and BHM told the appellant. The Police had seized one AK 47 rifle and some empty cartridges but he did not know whether any paper was prepared in respect of that or not. He did not know when the appellant went towards the main gate. He also did not know where else the appellant went.
13. PW Mohd Ishaq stated that on 26.08.2001 his duty was in 71 Bn at Sanat Nagar. While he was sleeping at around 11. PM, he heard the sound of a whistle by the Sentry and got alert. He also took position. Adjutant told them that there were two militants in the area so they should remain alert. Thereafter, everybody entered in their own rooms. Thereafter, he heard the firing. He was in the bathroom. He did not know who was firing. There was noise in the room adjacent to the room of Sentry that the accused died/got injured and an Ambulance be brought. 10 CRA No. 8/2007 Sidh Nath was bleeding and he was taken to hospital in an injured condition, where the doctors declared him brought dead. The Police came on spot and seized one A. K. 47 rifle and one magazine, 29 empty cartridges and live rounds. He identified the same in the Court. He proved the seizure memo also. During cross-examination, he stated that he had no knowledge as to where from the firing was taking place. He had seen only one seizure memo in respect of weapons. He did not know about another seizure memo. In his presence, no bullet was taken out from the body of any injured. During those days, all the persons in the camp were having good relations and there was no enmity with anybody. On the specific question, he replied that he cannot say that the weapon seized and shown to him was the same which was used for firing. He admitted that the seizure memo EXPW 2/4IV was signed in the Police Station. When he heard the sound of the firing, he was urinating, so he remained there and did not come out.
14. PW Head Constable Harjeet Singh stated that on the day of occurrence, he was posted in 71 Bn. CRPF, Sanant Nagar. He was sleeping at the time of occurrence. In the evening, Adjutant called all the inmates of the camp and told them that there was likelihood of suicide attack on the camp. He heard the noise when he was sleeping in the third floor. He took position there and in the morning they heard that two persons had died. He expressed ignorance about the location of the accused at that time. He proved the memo of seizure of the dead bodies but he did not know as to whom the dead bodies were handed over. 11 CRA No. 8/2007 During cross-examination he stated that accused was neither insulted by his officers in his presence nor the accused was careless in his duty. When the occurrence took place, they heard that there was an attack on the camp. He and other believed that the camp was really attacked by the militants as there was lot of firing. He did not know whether he signed EXPW 2/I and EXPW2/II. He saw the dead body of Virinder Singly only. He did not know as to how Manager Singh was injured.
15. PW Subedar Major Narinder Singh stated that on 26.08.2001, he was posted in Sanat Nagar CRPF Headquarter. At about 11.20 PM, he was sleeping and awakened by K. K. Singh. The Commandant informed that two militants were moving in the Sanat Nagar area and they should remain alert. He went out and told the Sentry at the gate that there was information. All assembled there. Sidh Nath Singh Havaldar told him that there were 44 men in the Camp. Then they went to their respective places. He also went. After 5/6 minutes, he heard sound of firing on the side of D/Coy. He thought that militants had attacked the Camp. He came out of his room to alert the Sentries and then proceeded towards the main gate. F-Coy was also alerted of the firing that was going on. He did not know as to who resorted to firing. They were apprehending that the firing was being done by the militants. Manager Singh injured told them that the firing was done by the own people and he named A. P. Singh appellant. Somebody was also saying in the darkness that appellant was firing. He could not identify that person. He was probably Havaldar Ram Varsi. The injured were taken in the Ambulance and the accused was 12 CRA No. 8/2007 also in the same vehicle. This witness was declared hostile. During cross- examination by the PP, he stated that he did not know as to whether the accused fired on own person.
16. PW M. K. Laha stated that in January 2001, he was posted in Sanat Nagar area and was putting up 1/2 Kms. away from the place of occurrence. He was living with his family at that place. At about 11/12 in the night, he heard some sound of firing. He came on the road at the place where he was putting up. He saw an Ambulance coming there. He did not know who was in the Ambulance. He went to Hqrs on foot and came to know that some people had been hit with bullets. Appellant was also hit by the bullet. He did not enquire as to who resorted to firing, how the firing took place and who was the target. He proved the seizure memos in respect of complaint, clothes and bed sheets. During cross- examination, he stated that he did not see the injured with his own eyes. He did not know about the description of the articles.
17. PW Apdesh Kumar stated that on 26th August 2001, he was posted in 71 Bn. CRPF. He was sleeping at the time of occurrence. All were told to remain alert as the militants had encircled BSF. They were told that even if they hear some firing, they should not resort to firing. After sometime, there was firing. Everybody took his weapon. After the firing, they came out. The arm of the accused was injured. He went to the hospital along with two injured. He did not know as to who had injured them. During cross-examination, he stated that he had no knowledge as to who fired and wherefrom the firing was coming. He cannot say as to whether the 13 CRA No. 8/2007 seized weapon AK 47 was the same weapon that was used for firing as all AK 47 rifles were similar.
18. PW Dr. Romal Khan stated that he was posted in the Police Hospital on 27.08.2001. The certificate dated 27.08.2001 on record was shown to him. The same related to the cause of death of one HC Sidh Nath Singh. After other Doctors recorded their findings about the examination of the death of the deceased, he recorded his opinion on the certificate. He proved the said certificate. As per the certificate, the cause of death was due to gunshot injury. Another certificate on record related to one Verinder Singh injured was also shown to him. He gave his opinion regarding cause of death of the deceased. He identified his signature on the certificate which was marked as EX.PW-M/12/2. As per the certificate, the cause of death was recorded as gunshot injury at the head. On cross examination, he stated that no fire arms were produced before him for opinion. In this particular case, no other injured person was brought before him. No bullets were produced before him for examination or opinion.
19. PW Hakim Nazir Ahmad, Scientific Assistant stated that he was posted as Scientific Assistant FSL Srinagar. On 01.09.2001 he received two sealed packets and five live cartridges from SDPO, Saddar through Insp. Ali Mohammad Dar. Packet-A on opening was found containing one AK 47 Rifle and a Magazine. Packet-B on opening was found containing one cartridge and 29 fired cartridges. On thorough examination, he framed the following opinion:
14CRA No. 8/2007
1. The AK 47 Rifle marked 227/2001 had been fired through;
2. The rifle was found in working condition;
3. The calibee of cartridge and 29 fire cartridge cases is the same as that of the AK 47 riffle.
The cartridge marked exhibit B-229/2001 was misfired cartridge and has been misfired through that AK 47 Riffle. Fired cartridge cases have been fired through same AK 47 Riffle. The swabs were taken out of the barrel of the riffle. The opinion/report issued by him was shown to him in the Court, which he proved to be correct. The Magazine which he saw in the Court was also the same. During cross-examination, stated that it is not possible that two riffles would create same marks on firing through. Only one AK 47 Riffle was referred to the Lab for examination. Many riffles were not available for comparison and it was not necessary also. The witness had not mentioned the duration of firing of bullets. He conducted the test fire himself and not in presence of any body. It was not necessary for them to ask a Magistrate or any higher officer to supervise the test firing.
20. Constable Hilal Ahmad stated that photographs were taken by him in the Sanant Nagar CRPF camp. There were two dead bodies and there were some blood stains also.
21. PW Dr. A. G. Ahanger stated that he was posted in SKIMS, Srinagar.
The certificate on record which was shown to him, was issued by the Sr. Resident of his department on 18.08.2001. He identified his signatures on the certificate. On cross-examination, during the course of Hospitalization of the patient, he examined all the records maintained in 15 CRA No. 8/2007 the department regarding Medico Legal cases. No fire arm was brought or produced before him for firm opinion.
22. PW Ali Mohd Dar, Investigating Officer stated that on 27.08.2001, he received the complaint and on the basis of that complaint, the FIR was registered. The application was bearing his signatures (EXPW 16/1). He also proved the FIR (EXPW 16/II). The investigation of the case initially was entrusted to ASI Mohd Akbar and thereafter it was handed over to him. He prepared the injury memo regarding Virinder Singh. He recorded the statements of the witnesses under section 161 Cr. P.C. He also sent the seized rifle for FSL examination and got the expert opinion. He also got the post-mortem report. He identified the A. K. 47 rifle seized during the investigation. In this investigation, offences under Section 302, 307, 309 RPC were established against the accused. During cross-examination, he stated that it can be ascertained from the post- mortem report as to whether the bullets were extracted from the bodies of the deceased or not. On the basis of the statements of the witnesses, he registered the case under section 302, 307, 309 RPC. In the post-mortem report, there was mention of bullets but he did not know whether the bullets were extracted from the dead bodies or not. He did not enquire it from the doctors. He did not extract finger prints from the weapon of offence. He recorded the statements of 9 witnesses. 8 witnesses were examined on 27.08.2001 and one witness was examined later. He had got the statements of witnesses recorded under section 161 Cr.P.C. The statements were having the date, when the same had been recorded and 16 CRA No. 8/2007 when the statements were shown to him, it was found that no day, year or month was mentioned in the statements. He had not filled any injury sheet. In the statement under section 161 Cr. P.C, the date was not mentioned but the same was mentioned in the CD file. There was serial number on the weapon of offence.
23. After the conclusion of the evidence, the statement of the appellant was recorded. The appellant did not lead any evidence and vide judgment dated 03.04.2007 the appellant was convicted for commission of offences under Sections 304-II, 307 and 309 RPC and vide order dated 10.04.2007, he was sentenced to undergo imprisonment as aforesaid.
24. Now, first of all this Court would examine as to whether any eyewitness has deposed about the commission of offence by the appellant or not. A perusal of the statement PW-Anand Kumar reveals that he is not an eye witness. He has deposed what was told to him by PW Harjeet Singh as he was at his residence when firing took place for the first time. He has also stated that he himself had not lodged the FIR and he and other witnesses had reached on spot after the occurrence. A perusal of the statement of PW Harjeet Singh would reveal that he has expressed his ignorance as to who resorted to firing. He has also stated that when the firing took place he was sleeping and also expressed ignorance as to the location of the accused at the time of occurrence. Comparative perusal of both the statements of these witnesses would reveal that they are not eye witnesses. PW Wajis Tabi stated that there was briefing and they were told that some militants entered in the area and everybody was asked to 17 CRA No. 8/2007 remain alert. Thereafter, everybody went to his own place and after sometime they heard noise of firing. He took position behind the wall. There was unrest in the whole camp. Due to darkness, it was not possible to see as to who was proceeding where. The gate where he was on duty, no person came inside and went out. He also did not see any injured on spot. In cross examination, he categorically admitted that he could not say as to who had fired and from where firing came.
25. PW Shatak Kumar has also not supported the prosecution case. He was declared hostile but this Court does not find any incriminating statement made by him against the appellant and rather in cross-examination, he stated that during the commotion, he heard that the camp was attacked by the terrorists. PW Mohd. Ishak has stated that Adjutant told them that there were two terrorists roaming in the area and asked them to remain alert. Thereafter, everybody went to their respective rooms. He heard some firing. The firing was intermittent. He did not say as to who resorted to firing. Some people were shouting that the appellant died/injured. This witness has also not stated anything about the commission of offence by the appellant. PW Subedar Major Narinder Singh is also not an eye witness as he has specifically stated that he did not know as to who resorted the firing. He was apprehending that there was firing by the militants. He was declared hostile. PW M. K. Laha is also not an eye witness as he was residing 1 to 2 kms away from the place of occurrence and he was not present at the place of occurrence. PW Apdesh Kumar stated that he was sleeping at the time of occurrence 18 CRA No. 8/2007 and they were told that the militants had encircled BSF. There was a firing and everyone took his weapon. After hearing the fire, they came to know that the arm of the accused was injured. He specifically stated that he did not know as to who fired and from where the firing was coming.
26. The most important witness is PW Manager Singh, who also claimed to have been injured in the incident. He has stated that information was received from BSF Control Room that there were two militants in the area and they were asked to remain alert. He went to his room and slept. After sometime there was firing and he took his weapon in his hand and opened the door. He went towards the right side and in the meanwhile, there was firing upon him. He enquired from Sentry as to wherefrom the bullets were coming. He was fired upon and he laid down on the right side. Some bullets hit the roof and some hit the wall and some bullets after hitting the wall, hit him on his left arm. A. P. Singh shouted and asked to come outside. After, he was injured he went inside the room and thereafter, AP Singh went towards the main gate of the camp and took the position. He wrapped his wounds with his loincloth. He told the occurrence to the people in the room. Thereafter, he again heard the sound of firing. The firing continued for 2 to 4 minutes. Someone shouted that A. P. Singh had hit himself with the bullets. When the first time firing took place, he was sleeping and when the second time firing took place, he enquired from the Sentry as to from where the firing was coming and he was fired upon. The appellant had fired. In cross- examination, he stated that he had slept for only 15 minutes then he 19 CRA No. 8/2007 heard the sound of firing. He was in the room. As such, he could not say as to who was firing. When he came out of the gate, bullets came from behind and hit the roof and walls. After hitting the roof and wall, some 4- 5 bullets hit him at his arm. As he was injured, so he did not proceed further and came inside room. In cross examination, he stated that he did not know as to how BHM Singh and driver were hit with bullets and how they died.
27. It is settled law that the conviction can be sustained on the solitary statement of the injured eyewitnesses and his evidence cannot be brushed aside lightly, but equally true is that the evidence of such witness must inspire confidence. In this context, it would be apt to take note of the judgment of the Hon'ble Apex Court in Khema v. State of U.P., 2022 SCC OnLine SC 991 and the relevant paras are reproduced as under:
"16. That leaves us with the testimony of Inder (PW-2). No doubt that Inder (PW-2) is an injured witness and therefore, his testimony could not be brushed aside lightly. The reliance placed by Shri Singh on the judgments of this Court in the cases of Jarnail Singh (supra) and Abdul Sayeed (supra) is well merited. The fact that the witness received injuries establishes his presence at the scene of occurrence. The evidence of such a witness cannot be rejected unless there are strong grounds for such rejection. Inder (PW-2) has given detailed narration as to how the incident has occurred. He has stated that accused Deepi and Kanhaiya assaulted with farsa, accused Khema assaulted with lathi and accused Balveer, Mahaveer and Jasram assaulted with the butts of their guns. Accused Balveer, Mahaveer and Jasram fired simultaneously. He states that when Omwati lay on him to save him, accused persons assaulted Omwati with stones and danda.
21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras5, has observed thus:
".......Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned 20 CRA No. 8/2007 with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial........"
22. We find that the testimony of Inder (PW-2) would fall under the 3rd category i.e. his evidence can be said to be "neither wholly reliable nor wholly unreliable". As such, it will be necessary that there is some corroboration to his ocular testimony."
28. So far as present case is concerned, PW Manager Singh would fall in 3 rd category. A perusal of his statement would reveal that he had stated when he came out of the gate, bullets came from behind. Once he stated that the bullets came from behind, then how he could state that there was firing by the appellant. Though the doctor who had examined PW Manager Singh, was never examined but the perusal of the medical report of the said witness by Doctor Mohd Yousuf reveals that there was browse on his left arm and healed. This witness has stated that 4-5 bullets hit at his left arm, which is not in consonance with the medical opinion. 21 CRA No. 8/2007 If the statement of the said witness is read as a whole, then it is found that it was not known to him as to who was firing. The statement of this witness cannot be relied upon for convicting the appellant.
29. The prosecution has also placed reliance upon the seizure of the weapon seized vide memo Ex PW 2/IV. A perusal of the seizure memo would reveal that AK 47, magazine, 29 empty shells and live round were produced by PW Anand Kumar. PW Anand Kumar has not deposed as to from whom and from where this AK 47, the magazine, empty shells and live round were recovered and seized by him. PW Mohd Ishaq, who was one of the attesting witnesses to the seizure memo (ExPW-2/IV) stated that the Police had seized one AK 47, one Magazine and empty shells 29 in number and live rounds but at the same time during cross-examination he specifically stated that he cannot say whether the weapon seized and shown to him in the court was the same which was used for firing. In fact, the prosecution has not at all proved the fact that AK 47 along with cartridges presented by PW Anand Kumar to Police, was allotted to the appellant.
30. In view of the above, it cannot be said that this particular weapon was allotted to the appellant. No documentary evidence was led by the prosecution to prove allotment of the weapon of offence to the appellant.
31. A perusal of the judgment passed by the leaned trial court reveals that the learned trial court has consumed 21 pages out of total 27 pages for reproducing the evidence led by the prosecution and the learned trial court without discussing the statement of any of the witnesses has simply 22 CRA No. 8/2007 convicted the appellant on the basis of the statement of the appellant recorded under section 342 Cr.P.C. One question put to the appellant was that he was allotted one AK 47, one Magazine and live rounds. This fact was not deposed by any witness. It appears that the learned trial court has put that allegation levelled in the charge sheet to the appellant during the course of recording the statement of the appellant under section 342 Cr.P.C.
32. It would be advantageous to take note of ten principles culled out by the Hon'ble Apex court qua the scope and relevance of section 313 Cr.P.C (342 J&K Cr.P.C) in Premchand v. State of Maharashtra, (2023) 5 SCC 522, which are extracted as under:
"15.1. Section 313CrPC [clause (b) of sub-section (1)] is a valuable safeguard in the trial process for the accused to establish his innocence.
15.2. Section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him. 15.3. When questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court. 15.4. The accused may even admit or own incriminating circumstances adduced against him to adopt legally recognised defences.
15.5. An accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him.
15.6. The explanations that an accused may furnish cannot be considered in isolation but have to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 statement(s).
15.7. Statements of the accused in course of examination under Section 313, since not on oath, do not constitute evidence under 23 CRA No. 8/2007 Section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case.
15.8. Statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission. 15.9. If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyse and consider his statements.
15.10. Any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of Section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him.... "
33. Once the prosecution was not able to prove its case beyond reasonable doubt, the trial court could not have banked upon the statement made by the appellant under section 342 Cr.P.C, which too was recorded in slipshod manner.
34. Moreso, this Court also finds that there is absolutely no evidence at all that the appellant in order to commit suicide fired upon himself. PW AG Ahanger though proved the injury certificate in respect of the appellant but no medical opinion was sought to prove as to whether the injury suffered by the appellant was self inflicted or not. It assumes significance as no eye witness has deposed that the appellant shot at himself with his weapon. In absence of any evidence to establish that the appellant tried to commit suicide, he could not have been convicted for commission of offence under section 309 RPC.
24CRA No. 8/2007
35. Just in two pages, the learned trial court has recorded its finding to record the commission of offence by the appellant without discussing any evidence with regard to commission of offences under section 302, 307 and 309 RPC by the appellant. Solely, on the basis of the statement of the appellant recorded under section 342 Cr.P.C, by putting the allegations levelled in the charge sheet, the learned trial court convicted the appellant for commission of offences under section 304-II, 307 and 309 RPC.
36. It is settled law that in order to convict any accused, the prosecution must prove its case beyond reasonable doubt. In the instant case, no witness has deposed that he had seen the appellant firing the bullets upon the deceased causing their death, as the occurrence took place when there was total darkness in the area and all the witnesses as well as the appellant were apprehending attack by the militants, who had entered the area, as per the information provided by the BSF control room. The learned trial court has not at all appreciated the evidence and there are material infirmities in the prosecution case as noted above by this Court, but ignored by the learned trial court.
37. In light of the evidence brought on record, it cannot be said that the prosecution has succeeded in proving its case beyond reasonable doubt. It is settled law that the suspicion, how strong may be, cannot substitute the proof. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. In "Ram Niwas v. State of Haryana, 2022 SCC OnLine SC 1007", the Hon'ble Supreme Court has held that the 25 CRA No. 8/2007 suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
38. For all what has been said and discussed above, judgment of conviction dated 03.04.2007 and order of sentence dated 10.04.2007 passed by the learned trial court in case titled State vs. Apdesh Pratap Singh in file No. 64/Sessions arising out of FIR No. 246 of 2001 of Police Station, Saddar, are set aside. The appellant is acquitted and the challan is dismissed. The appellant is on bail, his bail and personal bonds are discharged.
39. The trial court record be sent back forthwith along with copy of this judgment for information.
(RAJNESH OSWAL) JUDGE Jammu 12.09.2023 Karam Chand Whether the order is speaking: Yes Whether the order is reportable: Yes