Jammu & Kashmir High Court
State Of J And K vs Ram Lal on 27 May, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRAA No.25/2007
c/w
CRR No.48/2007
Reserved on 15.05.2025
Pronounced on 27.05.2025
CRAA No. 25/2007
State of J and K
....Petitioner(s)/Appellant(s)
Through :- Mr. Raman Sharma, AAG.
Ms. Saleeqa Sheikh, Advocate.
Versus
1. Ram Lal,
S/o Prem Nath, Caste Thaker.
2. Bansi Lal
S/o Sham Lal.
3. Khem Raj,
S/o Chandu Caste Lohar,
R/o Bain, Tehsil Chenani.
4. Mulkh Raj
S/o Devi Ditta Caste Brahmin
R/o Mand, Tehsil Udhampur.
5. Krishan Lal alias Lali,
S/o Chuni Megh,
R/o Bain Tehsil Chenani. ....Respondent(s)
CRR No. 48/2007
State of J and K ....Petitioner(s)/Appellant(s)
Through :- Mr. Raman Sharma, AAG.
Ms. Saleeqa Sheikh, Advocate.
Versus
1. Rakesh Anthal,
S/o Khushal Chand Rajput,
R/o Bhain, Tehsil Chenani. ....Respondent
2 CRAA No.25/2007 c/w
CRR No.48/2007
2. Ram Lal,
S/o Prem Lal Thakur.
3. Bansi Lal,
S/o Sham Lal.
4. Khem Raj
S/o Chandu Lohar,
R/o Bhain, Tehsil Chenani.
5. Mulkh Raj,
S/o Devi Ditta
R/o Mand, Tehsil Udhampur..
6. Krishan Lal alias Lali,
S/o Jhamfi,
R/o Bhain Tehsil Chenani. 2 to 6
Proforma -Respondents
Through :- Mr. P.N Raina, Sr. Advocate with
Mr. J.A Hamal, Advocate.
HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
CORAM: HON'BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
JUDGMENT
Per: Shahzad Azeem, J INTRODUCTION
1. These two clubbed matters, one of which is the Criminal Acquittal Appeal and the other is the Criminal Revision, have been directed against the judgment and order dated, 07.03.07 and 30.05.07, respectively passed in File No. 35/Sessions, by learned Sessions Judge, Udhampur (hereinafter referred to as "the trial Court"), whereby respondent Nos.1 to 5 (arrayed in original challan as, A-2 Ram Lal, A-3 Bansi Lal, A-4 Khem Raj, A-5 Mulkh Raj and A-6 Krishan Lal @ Lali), were acquitted of the charges under Sections 302/109/120-B/34/176 RPC read with Section 7/27 Arms Act and respondent No.1 (arrayed in the original challan as, A-1 Rakesh Anthal) in the clubbed matter, was discharged from the offences under Sections 302 read with 120-B and 109, RPC.
3 CRAA No.25/2007 c/wCRR No.48/2007
2. Since both the matters have arisen from FIR No. 47/2003 and File No. 35/Sessions, therefore clubbed and taken up for adjudication. For the sake of brevity and better understanding, the parties before us shall be referred in the same manner, as the trial Court has recited in the impugned judgment and order, respectively, under challenge.
PROSECUTION CASE:-
3. For proper appreciation of matters under consideration, same needs recapitulation.
4. Somewhere in the month of January, 2002, a resident of village Bain namely, Dharam Chand found dead in his room, latched from the inside. The son of said late Dharam Chand was none other than late Kulbeer Chand (hereinafter referred to as "deceased"). The deceased was a police personnel. It is the version of the prosecution that since the death of Dharam Chand occurred under mysterious circumstances, when he was all alone in his house and deceased the only son was away in connection with his official duties at Jammu, when reached home in the evening, he inquired about the cause of death and started suspecting the accused to be the perpetrator of commission of murder of his father. The prosecution story further proceeds on the premise that the death of late Dharam Chand, was germane to the enmity between the deceased and the accused and in this regard, for conciliation Panchayats were also alleged to have been convened, more particularly last panchayat was convened immediately before the murder of deceased on 09.11.03, in which deceased openly exhorted that he would produce the evidence about the murder of his father, who had been killed at the instance of and in furtherance of conspiracy hatched by A-1 Rakesh Anthal. In said panchayat an altercation 4 CRAA No.25/2007 c/w CRR No.48/2007 alleged to have been ensued between deceased and A-1 Rakesh Anthal, thereafter, A-1 Rakesh Anthal left the Panchayat along with co-accused. A-1, Rakesh Anthal said to have grid up the lions and hatched the conspiracy to get rid of the decease, as consequence whereof, A-2 Ram Lal, A-3 Bansi Lal, A-4 Khem Raj, and A-6 Krishan Lal were supplied "Toka" and "Katta" by the A-1 Rakesh Anthal, and in the evening of 10.11.2003, accused, A-2, A-3, A-4 and A-6 have brutally assaulted the deceased with Toka, resultantly, the deceased succumbed to the injuries and bade goodbye to his life.
5. An information regarding occurrence came to be received in the Police Station Chenani on, 11.11.2003 from a reliable source that previous day at about 8.30 p.m, the accused, A-2 Ram Lal, A-3 Bansi Lal, A-4 Khem Raj and A-6 Krishan Lal have committed the murder of the deceased, Kulbeer Chand S/o Dharam Chand, resident of Bain, Tehsil Chenani. The informant further said to have informed the Police that the crime has been committed in furtherance of conspiracy hatched by A-1 Rakesh Anthal. This information led to the registration of formal case being FIR No. 47/2003 for the commission of offences under Sections 302, 109, 34 RPC read with 7/27 Arms Act and investigation taken up.
6. During investigation, the Investigating Officer visited the spot and had taken the dead body of the deceased in custody and also prepared the Panchnamas of the seized articles and of the material which was to be sent for the expert opinion. At this stage, in order to avoid the repetition, we are skipping to take note of minute details of the codal formalities undertaken by the Investigating Officer and proposed to take note of the same hereinafter at appropriate stage.
5 CRAA No.25/2007 c/wCRR No.48/2007
7. During investigation, all the accused except, A-1 Rakesh Anthal, were arrested on, 19.11.2003 and on the alleged disclosure being made by A-2 Ram Lal, the weapon of offence i.e. blood stained "Toka" and one "Blood Stained T-Shirt" were recovered and Panchnamas thereof prepared, accordingly.
8. As per the prosecution story, A-1 Rakesh Anthal after hatching the conspiracy to commit the murder of the deceased, fled in his vehicle with the aid of A-5 Mulkh Raj, who happens to be his Personal Security Officer (PSO) and stayed in the Hotel India Pride, Jammu, therefore, the register of the said hotel was also seized and it was found that A-5 Mulkh Raj (PSO) despite having full knowledge of the conspiracy hatched by A-1 Rakesh Anthal to commit the murder of the deceased, omitted to inform the police party deployed on the Nakka at Mansar, rather misled the Nakka party by portraying A-1 Rakesh Anthal as, Dy. S.P, who at that time was steering the gypsy.
9. During investigation, other codal formalities were completed and on collection of material evidence, Final Police Report was laid before the Court of learned Chief Judicial Magistrate, Udhampur, who initiated the proceedings under Section 512 Cr.P.C against A-1 Rakesh Anthal.
10. On committal, formal charges were drawn up against A-2, A-3, A-4, A-5 and A-6, respectively, for the commission of offences under Sections 302, 120-B, 109, 34/176 RPC read with Section 7/27 Arms Act, who denied the charges and claimed to be tried.
11. At this stage, it is important to take note of the fact that during investigation, no eye witness of the alleged occurrence was found and thus, when A-6 Krishan Lal @ Lali was produced on, 29.12.2003 before the Court 6 CRAA No.25/2007 c/w CRR No.48/2007 for grant of remand, said accused made a request before the Court that he wanted to become approver and accordingly, he was provided sufficient time to introspect over it and thus, he was produced in the Court on 30.12.2003, when he tendered pardon by the learned Chief Judicial Magistrate, Udhampur under Sections 337 Cr.PC. While tendering pardon to the accused, the Court has specifically recorded that there is no sufficient direct evidence available in the case, therefore, in the interest of justice, the accused said to be the privy to the commission of alleged crime, therefore, is required to be made approver, as he has voluntarily filed an application to seek pardon and to disclose true facts within his knowledge.
12. Thus, after framing of the charges against the accused, the prosecution has examined the approver A-6 Krishan Lal as its first witness, but when he entered in the witness box he completely resiled from his previous statement and has deposed that he has no knowledge as to how the deceased died. This witness was declared hostile and on being cross-examined by the PP deposed that there was no enmity between the accused and the deceased, however, he was brutally tortured by the police and thus, compelled to give statement before the Court.
13. In the above backdrop, the approver A-6 Krishan Lal remanded to the judicial custody, his trial was segregated and thereafter supplementary challan was presented, leading to framing of formal charges under Section 302, 120-B, 34 RPC read with Section 4/27 and 3/25 Arms Act. In this way, the trial commenced.
14. However, during trial, the prosecution had examined, as many as, 36 witnesses out of listed 41 witnesses in the witness calendar, including PW-37, 7 CRAA No.25/2007 c/w CRR No.48/2007 Kuldeep Chand, who was summoned in pursuance of application moved by PP u/s 540 Cr.P.C at the fag end of trial.
15. When the accused were examined under Section 342 Cr.P.C, they had denied the veracity of the prosecution case, however, despite opportunity was granted, the accused did not choose to lead the evidence.
16. The learned trial Court after holding a detailed discussion and appreciation of evidence, vide impugned judgment dated 07.03.2007, acquitted the accused, A-2 Ram Lal, A-3 Bansi Lal, A-4 Khem Raj, A-5 Mulkh Raj and A-6 Krishan Lal, respectively, by giving them benefit of doubt.
17. As it has been noticed hereinbefore that on being declared absconder, the proceedings under Sections 512 Cr.PC were initiated against A-1 Rakesh Anthal, which remained in vogue till 01.05.2007, when said accused surrendered and was taken in custody, accordingly.
18. When the matter was taken up for argument on charge/discharge against A-1 Rakesh Anthal, the trial Court found that he did not participate in commission of crime but the accusation against the accused is only to the extent of hatching of conspiracy, therefore while taking into account the nature of accusation against A-1 Rakesh Anthal, he was discharged vide impugned order dated, 30.05.2007 by holding that once co-accused are acquitted on being found that the substantial charges are not proved, in that event, A-1 Rakesh Anthal, cannot be charged for abetment and conspiracy in isolation. SUBMISSIONS & GROUNDS OF CHALLENGE IN CRAA No.25/2007
19. The impugned judgment is challenged on the ground that the trial Court failed to appreciate the evidence led by the prosecution during trial and proceeded on the surmises and conjectures, in that the prosecution duly proved 8 CRAA No.25/2007 c/w CRR No.48/2007 the motive behind murder of the deceased and also the trial Court failed to appreciate that the weapon of offence i.e. "Toka" and "Blood Stained T-Shirt" of deceased were recovered in pursuance of the disclosure statement made by A-2 Ram Lal. The impugned judgment is further questioned on the ground that the trial Court did not appreciate in the right perspective the circumstances duly proved by the prosecution connected with the place of occurrence i.e. the accused were found armed with "Kata" and "Toka" and this fact is duly proved during the trial. In addition, Mr. Raman Sharma, learned AAG vehemently argued that the trial Court failed to appreciate that prosecution duly proved that accused bore enmity with the deceased and there was strong motive to eliminate him, coupled with the fact that immediately before the death of the deceased, the accused were found haunting for him. SUBMISSIONS AND GROUNDS OF CHALLENGE IN CRR No.48/2007
20. The impugned order of discharge dated 30.05.2007 is challenged on the ground that same suffers from material illegality and impropriety, in that, the trial Court relied upon the evidence led against A-2, A-6, without taking into consideration that they have faced the trial and thereafter were acquitted. It has been further submitted that at the stage of framing of charge, the reliance cannot be placed on the evidence which has been led against the co- accused during the trial, therefore, the impugned order of discharge being based on the appreciation of evidence and, thus, same is against the settled proposition of law, is liable to be set aside.
21. Since respondents No. 1 to 5 in CRAA No.25/2007 were made to face the trial for substantial and main offences, who have after full trial earned the acquittal, whereas, respondent No.1 in CRR No.48/2007, was discharged 9 CRAA No.25/2007 c/w CRR No.48/2007 for alleged abetment and conspiracy, which allegedly induced the commission of murder of deceased at the hands of co-accused, therefore, in this view of the matter, outcome of Criminal Revision No.48/2007 mainly hinges on the success of Criminal Acquittal Appeal, hence same is taken up at first instance. ANALYSIS
22. Before embarking upon the appreciation of evidence and examining the conclusions drawn by the trial Court, which is impugned before us, it is sine-qua-non to take note of two very important circumstances. A-6 Krishan Lal, was made approver, but he resiled from his condition of pardon.
23. The second aspect of the matter to be noticed is that at the fag end of the trial, the prosecution had come up with an application under Section 540 Cr.PC for summoning Kuldeep Chand as prosecution witness, because during trial, it has come in the statements of the prosecution witnesses, namely, Shamsher Singh, Parvez Akhter, Nanak Chand, Manzoor Ahmed that on the fateful day, they had seen the deceased and Kuldeep Chand together going towards the place of occurrence and accused were looking for them, therefore, after hearing both the sides, the trial Court had formed the opinion that prima- facie it is established that deceased and Kuldeep Chand were seen together at the time of occurrence, therefore, this being duty of the Court to summon the material witness for just decision of the case, as it appears that Kuldeep Chand was an eye witness of the alleged occurrence. Accordingly, application was allowed and statement of PW-37 Kuldeep Chand, was recorded.
24. Once the approver resiled, the success of prosecution story mainly hinges on the testimonies of indirect witnesses, except solitary testimony of 10 CRAA No.25/2007 c/w CRR No.48/2007 eye witness, PW-37 Kuldeep Chand, who was summoned on the request of prosecution in exercise of powers u/s 540 Cr.P.C.
25. Accordingly, before delving into veracity of originally listed prosecution witnesses, it would be advantageous to take note of the testimony of PW-37 Kuldeep Chand, who made lateral entry during the trial as a solitary eye witness to the alleged occurrence, so as to find out as to how he fared in the witness box.
26. PW-37 Kuldeep Chand, deposed that he was in the business of Walnut at Banihal, when on 10.11.2003, all of sudden he spotted his brother- in-law driving Tata Sumo with tourists traveling in it. He boarded in the Tata Sumo and reached at Chenani Morh on the national highway at about 6 p.m, and thought that he will also take deceased and his wife to Amritsar, because during those days he was thinking of his marriage at Amritsar, and discussion was going on in this regard. PW-37 further clarified that he never wanted to take his real brother and sister-in-law to Amritsar. In this backdrop, witness further deposed that when he reached Chenani Morh, he thought it better to go to Village Bain to which tourists in the Tata Sumo did not object, therefore, he alighted from the Tata Sumo at village Bishti although there was motorable road upto village Bain which was 4/5 kilometers from village Bishti. He did not ask his brother-in-law to drop him at village Bain, since it was going to be late for the tourists. When enroute he reached Taldsoo Bowli which was at a distance of 4/5 kilometers from village Bishti, it was quite dark, he took short halt there. It was about 7.30 p.m., when a bus arrived and deceased descended and told him that he get off the bus on seeing him, thereafter both stayed there for about 10/15 minutes, before starting onward journey. 11 CRAA No.25/2007 c/w CRR No.48/2007
27. It has been further deposed by PW-37 that he did not see the registration number of said bus, because it was dark that time. It is also the testimony of PW-37, that he had to go to the house of deceased as he wanted to take him to the Amritsar.
28. It has also come in the testimony that after resuming onward journey from Taldsoo Bowli, when at about 8 p.m, they reached near Mosque, PW-16 Pervaiz Akhter, met and they had a conversation for about 10 minutes. Again, as per PW-37, when deceased and he reached near Nallah, they spotted A-2 Ram Lal, A-3 Bansi Lal, A-4 Khem Raj and A-6 Krishan Lal, respectively. A-2 Ram Lal was wielding a "Toka", whereas, A-3 Bansi Lal was holding a Torch, A-4 Khem Raj was armed with VDC Rifle and A-6 Krishan Lal was bare-handed. A-2 Ram Lal inquired about their identity, on which, deceased replied that he is not supposed to inquire from him, meanwhile A-3 Bansi Lal, shined a flashlight on the face of the deceased and A-2 Ram Lal inflicted injury on the deceased from backside with a "Toka". As a result, deceased fell down. A-3 Bansi Lal and A-4 Khem Raj caught hold of legs and arms of deceased and A-2 Ram Lal inflicted injuries on the neck of the deceased with "Toka" and exhorted that they have warned him not to go against A-1 Rakesh Anthal and it is at the behest of A-1 Rakesh Anthal they are going to eliminate him. When he asked the accused why they are going to kill the deceased, A-3 Bansi Lal said to finish him also. On hearing this, he escaped from the spot and rushed towards the Mosque and spent night in a jungle. He did not raise any alarm near the Mosque regarding the occurrence, because he was terrified. In the morning, he straightway went to the Chenani Police Station and en- route through the villagers were present, but he did not meet anyone. He remained in the police station for about 2-3 minutes only and SHO asked him 12 CRAA No.25/2007 c/w CRR No.48/2007 to get the accused identified. He returned to village Bain, where 100/150 villagers were present on the spot, and he narrated the occurrence, however, some elderly people advised him that accused are searching for him, therefore, he should leave the place. On this, he straightway went to Chenani, from where via Udhampur-Jammu, he reached Amritsar, and, started working there as a Contractor for about 4-5 months. PW-37 further deposed that it is only when accused were arrested, he returned home and went to Police Station, but SHO concerned did not record his statement on the ground that the challan has been produced in the Court. According to witness, when he had come back to home from Amritsar, he did not tell his father or any other person about occurrence, because he was scared of accused.
29. It is important to note that PW-37 specifically deposed that his family has shifted from village Bain to Chopra Shop, Udhampur about 8/10 years back.
30. At this stage, it is important to note that PW-37 Kuldeep Chand was never summoned during investigation or his statement recorded under Section 161/164 Cr.PC, so much so, PW-37 was not figuring in the witnesses calendar. Therefore, regarding the presence of PW-37, on the day and time of alleged occurrence an in depth deliberation is required.
PRESENCE OF PW-37 AT THE TIME OF OCCURRENCE.
31. It has come in the testimony of PW-37 that on, 10.11.2003, he was at Banihal where he was doing the business of Walnuts, but all of sudden, he spotted his brother-in-law driving Tata Suma in which tourists were travelling, meanwhile, he also boarded and when reached Chenani took diversion to which tourists did not object and alighted at village Bishti, which was at a 13 CRAA No.25/2007 c/w CRR No.48/2007 distance of 4-5 kms from village Bain. It has also come in his testimony that en-route from village Bishti to village Bain, he reached at about 7.30 p.m on foot at Taldsoo Bowli, where he took short halt.
32. At first instance, it does not sound to the reason that all of sudden knowing well that village Bain is quite far off from Banihal, PW-37 Kuldeep Chand, still decided to travel in a Tata Sumo driven by his brother-in-law, who met accidently in which tourists were travelling and when reached Chenani took diversion from highway and reached village Bishti. Furthermore, it also does not sound to the logic that when Tata Sumo driver, who happens to be the brother-in-law of PW-37 had taken risk of taking diversion from highway to village Bishti, then what stopped him from covering a short distance of 4/5 kms so as to drop the PW-37 in the village Bain.
33. There are two very important aspects of the journey purportedly undertaken by PW-37 on, 10.11.2003, i.e., day when occurrence took place. Firstly; all of sudden a decision to travel from Banihal to the erstwhile village from where admittedly, the family of PW-37 had shifted to Chopra Shop about 10-18 years back and thus was no more residing there and secondly; it does not sound to the reason that the spotting of Tata Sumo and that too driven by his brother-in-law can be a co-incidence. Therefore, the initial journey from Banihal and dropping of PW-37 at village Bishti short of 4/5 kms of his destination from village Bain is itself marred by improbabilities.
34. It is reiterated that the conduct of PW-37 to take all of sudden a decision to travel from Banihal to his residential village does not inspire confidence and furthermore, the conduct of brother-in-law of PW-37 who happens to be the driver of Tata Sumo seems to be most improbable and 14 CRAA No.25/2007 c/w CRR No.48/2007 unnatural inasmuch as, it was not expected of him to drop PW-37 just short of 4-5 kms from the destination i.e. Village Bain that too in late evening in a rural area in absence of any possibility of presence of public or passerby.
35. On one hand, PW-37 stated that he has taken a short halt at Taldsoo Bowli en-route to village Bain when a bus stopped and on seeing him the deceased only alighted and in the same breath, he deposed that he could not see the bus number because it was dark. It is important to note at this stage that the bus in which deceased was travelling as per prosecution story other occupants, PW-9 Irshad Ahmed, PW-15 Manzoor Hussain PW-18 Shakti Singh and PW-19 Mohd Babu were also travelling, who deposed that the deceased was sitting behind them, but none of these witnesses have deposed regarding the presence of PW-37 Kuldeep Chand at the place where the deceased descended from the bus. Therefore, the testimony of PW-37 is mutually contradictory. PW-37 deposed that it was dark that is why, he could not see the bus number and in the same breath, he said that deceased when alighted at Taldsoo Bowli and told him that it is only when he saw him, he alighted from the bus, therefore, this aspect itself cast doubt on the presence of PW-37 at the time of occurrence.
36. PW-37 deposed that before occurrence when he alongwith deceased reached near Mosque they spotted PW-16 Pervaiz Akhter, who was washing hands and they had a conversation for about 10 minutes. It has also come in the testimony of PW-37 that they identified the accused at a distance of 10/12 feet as it was the moonlit night. Let us take a pause here and flashback when PW-37 deposed that deceased alighted from vehicle at Taldsoo Bowli, it was dark and he could not see the bus number. After short time, he says he 15 CRAA No.25/2007 c/w CRR No.48/2007 identified the accused from a distance of 10-12 feet because it was moonlit night. Both these versions of PW-37 are inherently and mutually contradictory which again cast doubt on the presence of PW-37 at the time and place of occurrence, so much so regarding the identification of the accused.
37. The presence of PW-37 Kuldeep Chand at the time of occurrence is also belied by PW-36 Dr. Mohd Yaseen who conducted the post mortem on the dead body and issued report EXPW-MY. Regarding situs of injury, PW-36 Dr. Mohd Yaseen deposed that no injury was found on the back of the deceased, neither any injury was found on the chest. A-37, deposed that A-2 Ram Lal inflicted first injury on the back of the deceased and deceased fell down. If this ocular witness would have been present at the time of commission of alleged murder of the deceased then, definitely at least the expert opinion would have corroborated the situs of the injury on the dead body of the deceased. This is another instance which further negates the presence of PW-37 Kuldeep Chand at the time of the occurrence.
38. It has also come in the testimony of PW 24, Mohd. Shafi that on 10.11.2003 at 07:30 p.m., when he had been to Mosque for prayers, he spotted the deceased proceeding towards his house. This witness did not say anything about the presence of PW-37, deceased and PW-16 Parvez Akhter near the Mosque. On this point also there is contradiction between the testimonies of PW-16 Parvez Akhter, PW-24 Mohd Shafi and PW-37 Kuldeep Chand, which again casts serious doubt regarding presence of PW-37, PW-24 and PW-16 at the time of occurrence, more particularly that PW-37 was accompanying the deceased immediately before the occurrence.
16 CRAA No.25/2007 c/wCRR No.48/2007
39. The prosecution was expected to examine the brother-in-law of PW-37 Kuldeep Chand, who drove him in Tata Sumo on 10.11.2003, from Banihal to village Bishti and Mr. Kohli with whom PW-37 was doing business of Walnut at Banihal. If Mr. Kohli would have been examined, he would have proved as to whether or not PW-37 Kuldeep Chand was doing the business of Walnut at Banihal and further the brother-in-law of the accused would have proved that PW-37 Kuldeep Chand travelled in his Tata Sumo, on 10.11.2003 from Banihal to village Bishti, but these two very important witnesses have not been examined by the prosecution, which is an additional missing link in the prosecution story.
40. Now let us examine the conduct of PW-37 Kudeep Chand, a star witness in the given facts and circumstances of the case. CONDUCT OF PW-37
41. Since the belongingness and proximity of PW-37 Kudeep Chand with the deceased can be gauged from the fact that PW-37 had deposed that when consultation regarding his marriage at Amritsar was underway, he had to take the deceased and his wife along with him and not his real brother and sister-in-law, to Amritsar, so much so on the fateful day i.e. on 10.11.2003, PW-37 had to stay with the deceased. It has also come on record that the deceased was the cousin of PW-37.
42. From the testimony of PW-37 it appears that there was strong bounding and mutual understanding between PW-37 and deceased, however, when this comradery is pitted against the conduct of PW-37, same over shadows the presence of PW-37 at the place and time of occurrence. It has specifically deposed by PW-37 that at the time when accused were brutally 17 CRAA No.25/2007 c/w CRR No.48/2007 and mercilessly stabbing the deceased, he tried to intervene, but when accused threatened to eliminate him, immediately, he fled from the spot, and surprisingly did not raise any alarm although there was mosque and houses, and against ordinary course of human conduct quietly and stealthily hid himself in forest for whole of the night. This is totally unnatural conduct of PW-37, therefore, the credibility of this witness is itself eroded by his unnatural conduct.
43. Further, on evaluating the testimony of PW-37, one would find that the same is also marred by improbabilities, in that, he deposed that in the following morning of occurrence, he straightway went to the Police Station where SHO asked to get the accused identified, and when he reached on the spot, there were 100-150 persons present, though he shared the occurrence with some of them, but on the advice of some elderly people, he immediately fled from the spot and reached Amristar, where he stayed for about 4/5 months and worked as Contractor. When 100-150 villagers were present on the spot, including his kith and kins, then where does the question of threat to the life of PW-37 arise, rather in all human probabilities, he was expected to have raised hue and cry, while being in the protection of 100-150 odd people, so as to expose the alleged nefarious design of the accused.
44. It has also come in the statement of PW-37 that only after the arrest of the accused, he returned home from Amritsar, but surprisingly neither he shared about the occurrence with his father nor with any person, because he was allegedly under threat and was terrified. There is inherent and mutual contradiction in the testimony of PW-37 Kuldeep Chand when on one hand says that he returned from Amritsar only when accused were arrested, but to 18 CRAA No.25/2007 c/w CRR No.48/2007 the contrary he specifically deposed that he did not share regarding occurrence with his father or any other person because he was under threat and terrified. The question of threat was no more there in view of the fact that accused were behind the bars and this was the reason, why PW-37 mustered the courage to return home.
45. From the testimony of PW-37 Kuldeep Chand one would find that same is marred by inherent and mutual contradictions, so much so veracity of the testimony of PW-37 Kuldeep Chand is sufficiently eroded by his unnatural conduct, which was totally unexpected from the witness who was none other than the cousin of the deceased, besides, having strong bonding with each other.
46. Since the presence of the accused at the place of occurrence has been found doubtful and when same is tested in context to the timing of his lateral entry in the witness box that too at the instance of prosecution it goes to prove that PW-37 Kuldeep Chand has been planted by the prosecution to fix the accused.
47. The testimony of so called ocular witness is found to be unworthy of reliance, in that event, again the prosecution case falls back on the circumstantial evidence. In this regard, the next circumstance which prosecution has tried to prove against the accused is the recovery of weapon of offence at the instance of A2 Ram Lal and blood stained T-shirt of deceased. RECOVERY OF WEAPON OF OFFENCE.
48. There were three witnesses to the disclosure statement and consequent recovery of Toka, which was allegedly used in the commission of offence. In this regard, PW-2 Sanjay Kumar, PW-17 Shabir Ahmed and 19 CRAA No.25/2007 c/w CRR No.48/2007 PW-31 Pawan Khajuria (SHO and I.O) assume importance and are relevant. PW-31 Pawan Khajuria, is the Investigating Officer and was the person before whom alleged disclosure was made by A-2 Ram Lal and also subsequently the weapon of offence i.e Toka was recovered.
49. PW-31 deposed that A-2 Ram Lal while in custody made disclosure statement vide EXPW-SK-II which led to the recovery of weapon of offence vide EXPW-SK-III. According to PW-31 when disclosure statement was made by A-2 Ram Lal, at that time PW-2 Sajay Kumar and PW-17 Shabir Ahmed (constable) were also present there. It has also come in the testimony of PW-31 that PW-2 Sanjay Kumar was regularly visiting the Police Station during the investigation of this case. According to PW-17 Shabir Ahmed, on 21.11.2003 he was posted at Police Station Chenani and investigation of this case was being done by PW-31, Pawan Khajuria. While A-2 Ram Lal was in custody, he disclosed that he had concealed the Toka and Blood Stained T-shirt and he can recover the same. At that time only SHO of the time and bodyguards were present and no one else was present there including any civilian. It has also come in his testimony that at that time A-2 was not handcuffed and in his presence A-2 did not make any statement. When they reached on the spot at that time it was dark and Police party reached in advance at the house of A-2 Ram Lal. PW-17 specifically deposed that he did not see from which place the alleged recovery of weapon of offence and other articles were made as he did not go on the spot.
50. Be it noted that PW-17 is an official witness who attested the Panchnama, but he denied the presence of any civilian at that time, when the alleged disclosure statement was made by A-2 Ram Lal and for that matter 20 CRAA No.25/2007 c/w CRR No.48/2007 even the presence of PW-2 Sanjay Kumar at the place of recovery of alleged weapon of offence stand also negated. To the contrary it has come in the testimony of PW-2 Sanjay Kumar that, when A-2 Ram Lal had gone for making the recovery he was handcuffed. There is contradiction between the testimonies of PW-2 Sanjay Kumar and PW-17 because as per PW-17 at the time of disclosure statement no civilian was present. Furthermore, it has come in the testimony of PW-17 that A-2 was not handcuffed at that time. But to the contrary PW-2 deposed that A-2 was handcuffed at the time of recovery. When these contradictory circumstances are tested in view of the fact that PW-2 as per testimony of I.O-PW-31 was daily visiting the Police Station in the context of the investigation of the case it appears that he was interested in the outcome of the investigation, therefore, his testimony becomes most unreliable and the trial Court has also taken note of it.
51. Now we are left with the testimony of PW-17, this witness specifically deposed that he did not see the place from where the recovery is made. In addition PW-31 (I.O) deposed that the weapon of offence i.e Toka was not got identified from any person so as to verify that Toka was used in commission of offense.
52. In view of the inherent and mutual contradiction between the testimonies of the witnesses on the point of disclosure and recovery, the credibility of these witnesses is sufficiently impeached, so much so as per the version of I.O the alleged recovered Toka has not been got verified that same has been used in the commission of offence. The prosecution also failed to produced the alleged Blood Stained T-shirt of the deceased and same was not identified by any of the witnesses. Hence, in view of the discussion made 21 CRAA No.25/2007 c/w CRR No.48/2007 herein above we are of the opinion that the prosecution also failed to proved the recovery of weapon of offence, resultantly, this is another vital circumstance which is missing to bring home the charge against the accused. MOTIVE
53. The very fulcrum of the prosecution story is that the death of Dharam Chand, the father of the deceased had occurred under mysterious circumstances, when he was alone in the house in village Bain. The deceased, Kulbeer Chand suspected that A-2, A-3, A-4, A-6 have committed murder of his father at the behest of accused A-1 Rakesh Anthal. In this regard, on 09.11.2003 panchyat was also convened and when the deceased challenged in the said panchyat that he would come with the proof of murder of his father, Dharam Chand, immediately thereafter the deceased had been eliminated by accused A-2 to A-6 in furtherance of the conspiracy hatched by accused A-1 Rakesh Anthal. Precisely this was the alleged motive for commission of murder of the deceased.
54. There is another version as borne out from the statement of PW-4 Mohd. Sharif, which proceeds on the premise that deceased came to know that his father died because of prayers of A-4 Khem Raj before the Deity and on this altercation took place between the deceased and A-4 Khem Raj. A-1 Rakesh Anthal was the supporter of A-4 Khem Raj, this lead to the enmity between the accused and the deceased.
55. According to PW-2 Sanjay Kumar, the deceased challenged A-1 Rakesh Anthal and co-accused that his father was murdered by them and in this regard on, 09.11.2003, a Panchyat was convened. The respectables of the Panchyat asked the deceased not to level false allegations and further deposed 22 CRAA No.25/2007 c/w CRR No.48/2007 that this Panchayat was convened to iron out the differences between the accused and the deceased. However, this statement of PW-2 Sanjay Kumar was contradicted by PW-8 Nanak Chand, who deposed that the Panchayat meeting was convened in order to elect Chairman of Panchayat Adalat.
56. Although an abortive attempt was made by the prosecution to prove the motive which lead to the murder of the deceased but in this regard, PW-14 Sukh Raj, the servant of deceased who was the most suitable person to throw light on the relations between the deceased and the accused, when entered witness box deposed that he has no knowledge who committed the murder of deceased. He further deposed that the relations between the deceased and the accused were cordial. No conversation took place in his presence between A-1 Rakesh Anthal and the deceased. He further deposed that he did not meet Kulbeer Chand, A-1 Rakesh Anthal, A-5 Muklh Raj (PSO) on the way. A-1 Rakesh Anthal did not say anything to deceased about the compromise. The deceased never said in his presence that A-1 Rakesh Anthal committed the murder of his father.
57. It is to be noted that as has been all along an attempt is made by the prosecution to prove that the deceased Kulbeer Chand was openly challenging that his father Dharam Chand was murdered by the accused and in this regard Panchayat was convened in which he said that he will produce the proof. If this version of the prosecution is believed for a moment in that event it is unbelievable and un imaginable that PW-14 Sukh Raj would not have the knowledge of such suspicion entertained by the deceased regarding murder of his father and never talked about it within the four corners of his house and with the family members or for that matter went un-noticed to PW-14 Sukh 23 CRAA No.25/2007 c/w CRR No.48/2007 Raj, who by all means expected to be present in the house of deceased being his servant. In any case this witness was declared hostile, therefore, do not carry much weight.
58. There is another circumstance in this regard which in brief be taken note of that it has come in the testimony of PW-7 Uttam Chand that when the dead body of the father of the deceased (Dharam Chand) found lying in his house, the police came over there but A-1 Rakesh Anthal said that father of deceased suffered attack, thus in the following day deceased was cremated. According to PW-7 Uttam Chand, the deceased Kulbeer Chand told him that A-1 Rakesh Anthal wanted to grab his land and that is why he bore enmity with him and got eliminated him (his father) through Gundas, that is why he did not allow the Police to investigate the case and sent the Police back. This version of PW-7 is contradicted by PW-8 Nanak Chand, who deposed that at the time of death of father of the deceased, all the respectables of the village were present in the house of Dharam Chand and found dead body of Dharam Chand lying there. Police was called there and, all the respectables said that late Dharam Chand had died because he suffered attack, thus SHO concerned prepared a Panchnama in this regard which was written by Gopal Sharma and signed by the people present there. Gopal Sharma was not cited as witness. Therefore to say that the deceased had entertained a doubt that the investigation regarding death of his father, was not done because of A-1 Rakesh Anthal, same flies in face of statement of PW-8 Nanak Chand. LAST SEEN THEORY
59. As per prosecution story the accused were seen armed with Toka, rifle and Kata immediately before the occurrence and they were searching for 24 CRAA No.25/2007 c/w CRR No.48/2007 the deceased. The prosecution has examined PW-9 Irshad Ahmed, PW-15 Manzoor Hussain and PW-19 Mohd. Babu. These witnesses have deposed that they boarded in a bus from Chenani and the deceased Kulbeer Chand was also in the same bus, but they alighted from the said bus near the shop of PW-11 Jeevan Kumar, where they met accused, who enquired about the deceased. Although there are so many inherent contradictions between the testimonies of these witnesses but prominently that needs to be noticed is that when PW-11 Jeewan Kumar entered in witness box, he did not support the prosecution case and was declared hostile. But it is noteworthy that this witness specifically deposed that PW-15 Manzoor Hussain, PW-19 Mohd. Babu and PW-9 Irshad Ahmed did not alight from the bus in front of his shop neither the accused were seen near his shop, therefore, last seen theory is sufficiently corroded. On the point of last seen, the deceased and PW-37 Kuldeep Chand together is also contradicted by PW-24 Mohd Shafi, who deposed that on 10.11.2003 at about 7:30 p.m., he went to offer Namaz in the Mosque and saw deceased Kulbeer Chand proceeding towards his home, therefore, again this witness has negated the presence of any other person with the deceased. Therefore, the last seen theory is also unworthy of reliance.
60. Since the prosecution case on the points of recovery, motive, the last seen theory and presence of the star witness PW-37 Kuldeep Chand suffers from inherent contradictions, improbabilities and the credibility of prosecution witnesses is sufficiently impeached, therefore, we do not think to further examine the testimonies of rest of the witnesses in the wake of above made discussion.
25 CRAA No.25/2007 c/wCRR No.48/2007
61. The material facts are sufficiently taken note hereinbefore, therefore, we will be only discussing in brief the testimonies of other witnesses, so as to examine their credibility.
62. Before heading further it is important to note that out of listed prosecution witnesses, PW-1 Krishan Lal @ Lali (Approver), PW-5 Mujaid Hussain, PW-6 Ashok Kumar, PW-11 Jeevan Kumar, PW-12 Dev Raj and PW-14 Sukh Ram, turned hostile and did not support the prosecution case.
63. As it has been taken note of that PW-37 Kuldeep Chand was summoned pursuant to the application moved u/s 540 Cr.P.C on the ground that his name surfaced in the testimonies of PW-8, PW-9, PW-15, PW-16 and PW-20 respectively, however, on close scrutiny one would find that though the statement of these prosecution witnesses were recorded during investigation under section 161 Cr.P.C, but they did not mention that PW-37 is an eye witness and for the first time deposed in the Court, therefore, there are material improvements insofar, as testimonies of these witnesses are concerned, which further renders them unworthy of reliance.
64. The prosecution also banked upon the testimony of PW-13 Narinder Singh and PW-20 Shamsher Singh to prove the circumstance against A-1 Rakesh Anthal, who hatched conspiracy with co-accused to commit the murder of the deceased. Admittedly, PW-13 is no more resident of the village where accused were residing and left said village before 15/16 years and settled in Chenani, therefore, when he has been examined no justification is coming forth as to the presence of this witness, immediately before occurrence in the house of A-1 Rakesh Anthal. Similarly, PW-20 is stated to be a contractor and after finishing his work in the evening he alleged to have 26 CRAA No.25/2007 c/w CRR No.48/2007 spotted A-1 Rakesh Anthal and co-accused enroute and heard to finish the job assigned to them. In the statement of PW-13 also, it has come that he spotted A-1 Rakesh Anthal and co-accused in the evening, saying finish the given job within one or two days. Since these two versions of PW-13 and PW-20 that they spotted A-1 Rakesh Anthal and co-accused together, saying finish the assigned job is totally unbelievable, because PW-13 deposed that he reached near the house of accused immediately after 7.00 p.m., whereas little bit later it has come in the testimony that he went to the house of A-1 Rakesh Anthal at 10.30 p.m. So there is considerable variation of time and if there is variation in time, then the question of hearing one statement, made at two different time does not arise. Both PW-13 and PW-20 appears to be chance witnesses, rather their presence itself is shrewded in mystery and they did not withstand with scrutiny of their presence at the time and place when they alleged to have seen A-1 Rakesh Anthal and co-accused together saying to finish the job. Further no explanation is coming forth what was that job.
65. The PW-11 Jeevan Kumar was very important witness who was expected to prove the presence of accused, PW-37, some of the prosecution witnesses (while travelling in bus) and deceased immediately before the occurrence but, this witness did not support the prosecution story and declared hostile.
66. Under these circumstances, even the conspiracy theory and abetment by A-1 Rakesh Anthal becomes full of doubt, in that the trial Court also deliberated upon the alleged circumstance which is pitted against A-1 Rakesh Anthal and his PSO A-5 Mulkh Raj. Suffice to say that as per prosecution story when A-1 Rakesh Anthal along with his PSO A-5 Mulkh Raj allegedly 27 CRAA No.25/2007 c/w CRR No.48/2007 fled towards Jammu enroute at National Highway Naka at Mansar they were intercepted by the Police party, and when questioned, A-5 portrayed A-1 Rakesh Anthal as Dy.SP and thus omitted to give the true information. In this regard, we fail to understand when there was prior information then how could Naka Party was misled about the mis-identity of their officer, a Dy.SP rank without identification. Again the alleged accusation of escape after hatching conspiracy by A-1 and A-5 becomes highly doubtful and improbable. The trial Court delve upon this point at length and rightly came to the conclusion that prosecution failed to prove the circumstance of conspiracy, abetment etc., against A-1 and A-5, respectively.
67. Now, we will proceed to deal with the revision petition, in this regard, it is sufficient to note that admittedly A-1 Rakesh Anthal had surrendered on 01.05.2007 before the trial Court and on hearing him on charge/discharge, opinion was formed that accusation against him is of abetment of commission of murder by hatching conspiracy. Therefore, the trial Court held that since the co-accused have been acquitted of the substantial charges, thus in isolation in view of the fact that already there is a finding of the trial Court recorded in para 56 of the judgment dated 07.03.2007, whereby co-accused have been acquitted by observing that the prosecution failed to prove that the co-accused Rakesh Anthal entered into criminal conspiracy to commit the murder of the deceased. Furthermore, the trial Court was of the view that the trial of accused A-1 Rakesh Anthal for the charges of conspiracy and abetment has to be conducted along with the acquitted accused, but same is not permissible under law since they have already been tried and acquitted. 28 CRAA No.25/2007 c/w CRR No.48/2007
68. It has been sufficiently discussed herein before that prosecution failed to prove all the relevant circumstances against the accused and also the trial Court taken note of the evidence lead by the prosecution to prove the alleged conspiracy and abetment for which A-1 Rakesh Anthal was to be put to trial.
69. The legality of impugned order whereby A-1 Rakesh Anthal was discharged is not questioned on the ground that there was sufficient evidence against A-1, that he abetted the crime by hatching conspiracy but only grouse raised is that at the time of framing of charge, the trial Court was not required to take into consideration the acquittal earned by the co-accused.
70. In this regard, be it noted that the trial Court has at length dealt with same set of prosecution witnesses, who were to depose against A-1 Rakesh Anthal, so as to prove the abetment and conspiracy allegedly hatched by A-1 Rakesh Anthal. Therefore, we do not find any illegality or impropriety has been committed by the trial Court, more so on thorough examination and appreciation of evidence, this Court has also come to the same conclusion that prosecution failed to prove the accusation against the co-accused, in that circumstance, even if, A-1 Rakesh Anthal, would be put to trial no different results are expected, as the same set of witnesses have already entered the witness box, but the prosecution failed to prove the circumstance of abetment and conspiracy against A-1 Rakesh Anthal.
71. In this view of the matter, we do not find any illegality, impropriety or jurisdictional error committed by the trial Court in discharging the accused A-1 Rakesh Anthal.
29 CRAA No.25/2007 c/wCRR No.48/2007
72. In the final analysis, we find that the prosecution failed to establish, a complete chain of circumstantial evidence linking the accused with the alleged commission of crime, prosecution also failed to prove the motive, the recovery of weapon of offence and also the last seen theory. The evidence lead by the prosecution is full of discrepancies, contradictions, so much so, there are material improvements in the testimony of the prosecution witnesses rendering them unworthy of reliance. The alleged accusation of abetment and conspiracy is also not proved by the prosecution, therefore, we do not find any illegality, impropriety or perversity in the findings of the trial Court that calls for interference.
73. Accordingly, the Criminal Acquittal Appeal and Criminal Revision are dismissed. The judgment of acquittal dated 07.03.2007 and order of discharge dated 30.05.2007 passed by the trial Court are upheld.
74. Registry is directed to send down the original record of the trial Court, against proper receipt.
( (Shahzad Azeem) ) (Sindhu Sharma)
Jammu: Judge Judge
27.05.2025
Surinder
Whether the order is speaking? Yes
Whether the order is reportable? Yes
Mihul Singh
2025.05.27 14:45
I attest to the accuracy and
integrity of this document