Jammu & Kashmir High Court
Pritam Singh vs State on 23 May, 2022
Bench: Dhiraj Singh Thakur, Puneet Gupta
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 23.05.2022
CRA No. 23/2016
CrlM No. 36/2020
CrlM No. 196/2020
IA No. 01/2016
In
CONF No. 09/2016
Pritam Singh .....Appellant(s)
Through: Mr. S.C.Sharma, Advocate.
Vs
State ..... Respondent(s)
Through: Mr. Aseem Sawhney, AAG.
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
PER PUNEET GUPTA-J
1. The appeal is filed by the appellant against the judgment and order of the trial court, court of Sessions Judge, Kathua, whereby the appellant has been held guilty and convicted of committing offence under Section 302 RPC and awarded the term of life imprisonment and the fine of Rs.20,000/- and in default of payment of fine the further simple imprisonment for a period of three months. The court will refer to the appellant as accused for the purposes of discussion in the appeal. 2 CRA No.23/2016
2. The docket from ASI Police Station, Billawar coupled with the written report filed by Mst. Nichno Devi against Pritam Singh, appellant herein resulted into filing of FIR No. 139/2011 with Police Station, Billawar under Section 307 RPC as Hans Raj, victim, had suffered serious head injuries on his head due to the attack from the said Pritam Singh. As Hans Raj died later on in the hospital due to the injuries suffered by him, the offence under Section 302 RPC was also added against the appellant-accused during the course of investigation. As per the initial report filed with the police, Bodh Raj son of Beli Ram and daughter of Thakur Dass were undergoing medical training at Jammu and Bodh Raj had engineered kidnapping of the girl. The Panchayat came to be convened in the house of Thakur Dass at village Dall and the complainant, her husband Hans Raj and Beli Ram attended the Panchayat. It was also attended by Thakur Dass, Pritam Singh, Mansa Raj, Anchal Singh and Kasturi Lal. As the Panchayat concluded at about 8.45 PM and the participants were about to leave the Panchayat, the said Pritam Singh attacked Hans Raj on his head with a sharp edged weapon having intention to kill him. The injury received by victim Hans Raj was serious in nature. The victim was referred to Government Medical College, Jammu for treatment but he succumbed to injuries on 16.10.2011. The occurrence is of 14.10.2011. The accused-appellant was arrested during the course of 3 CRA No.23/2016 investigation and on 17.10.2011 on the disclosure statement of the accused, the alleged weapon of offence 'Darati' was also recovered. The usual investigation took place in the case and on completion of the investigation the challan was filed against the accused Pritam Singh under Section 302 RPC. The court framed charge against the accused under Section 302 RPC. The accused denied the charge and claimed trial. The prosecution was directed to produce evidence in support of its case. On the closure of prosecution evidence, the statement of accused under Section 342 Cr.P.C was recorded wherein he denied the incriminating evidence produced against him by the prosecution. The accused did not produce any evidence in defense. It is profitable to go through the statements of the prosecution witnesses at this stage.
3. PW-1 Nichno Devi is the wife of the deceased Hans Raj who is stated to have been assaulted on 14th by the accused. As per the statement of the witness, Bodh Raj had contracted court marriage with the daughter of Thakur Dass. She along with her husband and other six persons participated in the Panchayat held in the house of Thakur Dass. It was decided that as Bodh Raj could not be contacted on phone, he be informed on the next day or a case will be filed. The accused present did not say anything at that time. Thakru, Prabhu, Anchal and Palla went outside and Saroti and the accused remained present in the room 4 CRA No.23/2016 and later both of them left the room. Mansa Ram, Banti Devi and Bimla Devi stepped outside the door and the witness and her husband who was behind those persons also came out of the room. The accused attacked her husband on his head with a sharp edged darati as soon as her husband came out of the door of the room. As a result, the husband fell down and the brain of the husband came out and the accused fled from the spot. She came back after chasing the accused at some distance. Her husband was taken to hospital at Machadi and thereafter to Billawar and then to Hospital in Jammu. Her husband died on 16 th at 3.45 PM. The witness is witness to the seizure memo of dead body and the report filed by her which is exhibited as Ext-P1. In cross- examination she states that she was called by the police on number of occasion. Her clothes and that of Palla were blood stained when they tried to lift the victim. At the time of attack she could not see if the sharp edged weapon was darati or any other weapon. The witness speaks of the fact that there was no previous enmity between the accused and her husband nor any argument took place between the deceased and the family of Thakru. She did not submit the application Ext-P1 to the police. Beli Ram is her brother-in-law but Mansa Ram and Banti Devi are not related to her or the accused party. She had not mentioned before the police of previous enmity or of holding of Panchayat or her presence in the Panchayat. It was not only Beli Ram 5 CRA No.23/2016 who was present in Panchayat as mentioned in the statement under Section 161 Cr.P.C but six other persons were also present from her side. It was dark at night at the time of occurrence. No scuffle took place prior to occurrence and the accused caused the attack straightway.
4. PW-2 Beli Ram also mentions of his presence in the house of Thakur Dass along with other persons and the discussion that took place in the Panchayat. The witness states that the accused attacked Hans Raj with a sharp edged darati as soon as they were coming out of the house of Thakur Dass. The injured was referred to hospital but succumbed to injuries on 16.10.2011 at Jammu. He is witness to the seizure memos. He could not identify the weapon of offence due to darkness and, therefore, there is no mention of darati in his statement recorded by the police. There was no quarrel between deceased Hans Raj and the accused during the meeting nor had they any prior enmity. The only issue was that his son had eloped with the daughter of Thakur Dass. He was at the door when the accused attacked the victim and the other had crossed the door at that time and were just at a distance of 2 feet from one another. He had chased and tried to catch the accused but the same is not mentioned in the statement recorded before the police or the court. His clothes were blood stained when he took the deceased from the place. It is denied that the parties had quarreled with each 6 CRA No.23/2016 other and all of sudden someone inflicted injury upon the deceased or that the accused has been falsely implicated.
5. PW-3 Bimla Devi also speaks of the attack from the accused on Hans Raj on his head in her presence in the meeting called by Thakur Dass. She is not aware of the weapon used by the accused during the attack. It was not too dark at the place of occurrence. The witness further states that she could not identify the weapon of offence due to darkness. There was no argument with the accused nor was there any previous enmity with the accused. The daughter of Thakur Dass had run away with her son and not with the son of deceased. The deceased Hans Raj was the first to go out of the room and the others followed him. They were still near the door when the accused attacked the victim and for this reason Mansa Ram, Banti Devi, Beli Ram and Nichno Devi also saw the accused attacking the deceased. The accused taking advantage of darkness ran away from the spot and none of the present persons tried to catch the accused. She denied the suggestion that they had a quarrel in the house of Thakur Dass and during the quarrel the victim suffered injuries and further denied that the suggestion that the deceased was not killed by the accused. She also denied the suggestion of her being not present on the spot. The victim was brother-in-law of the witness.
6. PW-4 Thakur Dass where the Panchayat is alleged to have held 7 CRA No.23/2016 speaks of the presence of Beli Ram, Bimla, Hans Raj, Nichno Devi, Mansa Ram and Banti Devi at the place of meeting. The witness has denied having seen the occurrence though stating having seen Hans Raj lying in an injured condition. The witness was declared hostile and denied that he called any meeting but records that the persons came on their own. He also states of having meeting with the aforesaid persons for five-seven minutes and thereafter going to his room after he took the medicine.
7. PW-5 Mansa Ram speaks of his being witness to the seizure memo of plain clay and blood stained clay. He denies to have witnessed the murder of Hans Raj. He was also declared hostile and denies the suggestion of having witnessed the crime on being cross-examined by the prosecution. He denies having seen the accused at the place of occurrence.
8. PW-6 Banti Devi also turned hostile as she denied having seen the occurrence.
9. PW-7 Anchal Singh was also declared hostile as he also denied having seen the occurrence as he states that he left the place before the meeting concluded.
10. PW-8 Kasturi Lal admits of having attending the meeting in the house of Thakur Dass and presence of other witnesses in the meeting. The witness has stated that he saw the deceased having suffered 8 CRA No.23/2016 injuries on his head and further states that Hans Raj had fallen down on the pathway leading to the house. The witness has denied the statement recorded under Section 161 Cr.P.C wherein the witness is stated to have seen the accused attacking on the head of the victim with a darati. The accused is son-in-law of Thakur Dass.
11. PW-9 Krishan Singh who is witness to alleged disclosure statement of the accused and discovery of weapon of offence in pursuance to the same was declared hostile. His statement shall be referred to and discussed when this aspect is analysed by the court.
12. PW-10 Ashok Kumar is also witness to those circumstances as PW Krishan Singh is and his statement shall also be referred when the said facet is discussed by the court.
13. PW-11 Hans Raj Sharma was deputed by SHO to the Billawar Hospital for recording the statement of the injured after SHO had received telephonic information that one Hans Raj was lying in an injured condition in Billawar Hospital. He prepared the docket for Medical Officer who recorded that Hans Raj is not fit to make a statement. The victim was referred to GMC, Jammu and in the meantime, Nichno Devi wife of Hans Raj handed over written application to him which he took along with the docket to the police station and presented before the SHO. He has prepared the docket Ext-P11 and the application Ext-P1 was submitted by Nichno Devi. 9 CRA No.23/2016
14. PW-12 Bodh Raj is the witness to the seizure memos prepared during investigation.
15. PW-13 Prabu Ram has stated that Mansa Ram, Beli Ram, Nichno Devi, Jameetu, Banti Devi and Bimla visited the house of Thakur Dass for convening Panchayat and the same was also convened. He also participated in the Panchayat and left the same on its conclusion. The witness was declared hostile as he denied having witnessed the occurrence. He denies that accused was present in the Panchayat.
16. PW-15 Pawan Kumar has taken the photographs at the place of occurrence and the photographs are marked as 'A'. He is also witness to the superdnama of ring marked as Ext-P9.
17. PW-17 Kuldeep Chand has only deposited three packets with the FSL, Jammu on 03.11.2021 and obtained the receipt of the same.
18. PW-18 Mohinder Pal, Naib Tehsildar, has prepared the revenue documents of the place of occurrence marked as Ext-P18 and Ext- P18/1. As per the witness in Ext-P18 (Tatima) residential house of Thakur Dass has been shown.
19. PW-19 Balak Ram is Naib Tehsildar who has resealed four packets and issued the letter Ext-P19.
20. PW-20 Rashpal Singh was deputed to the GMC, Jammu where the post-mortem was conducted on his request and certain articles also came to be seized which he handed over to SHO. As per the witness, 10 CRA No.23/2016 the clothes of the deceased were torn and blood stained. In case the scuffle takes place between two persons, the possibility of clothes getting torn is there.
21. PW-21 Dr. Seva Singh has conducted post-mortem of the victim and issued the certificate. The statement of the doctor shall be referred to at the relevant stage of the discussion.
22. Learned counsel appearing for the appellant-convict has argued that the learned trial court has fallen in error by holding the appellant guilty of offence under Section 302 RPC as the prosecution had failed to prove its case against the accused beyond shadow of doubt. The reliance of the trial court upon the statements of three witnesses which are related to the deceased is faulty one as they could not be relied upon being closely related to the deceased. The evidence which has otherwise come on record does not prove that the appellant killed the victim.
23. Learned Additional Advocate General has argued that the trial court has held the appellant guilty of the offence and convicted him after taking into consideration all aspects of the case. The prosecution was able to prove its case beyond shadow of doubt against the accused.
24. The Court will now take into consideration the various aspects of the case which have come on record.
25. The deceased Hans Raj is reported to have been attacked by the 11 CRA No.23/2016 accused in the house of Thakur Dass with a sharp edged weapon on his head after the Panchayat convened in the house of Thakur Dass in connection with the marriage which took place between the son of Beli Ram and daughter of Thakur Dass came to an end and the members in the meeting were leaving the place. The accused is son-in-law of said Thakur Dass. The occurrence which took place on 14.10.2011 resulting into the grievous injuries to the victim ultimately led to the death of the victim on 16.10.2011 at about 3.40 PM in the GMC Jammu. The prosecution relied upon the eye witnesses of the alleged occurrence and other circumstances of the case.
26. As the mainstay of the prosecution case is the deposition of the eye witnesses of the occurrence and the trial court has also indeed based the conviction of the appellant on the aforesaid basis. It is but natural that the court takes into consideration this aspect of the case in the first instance. The trial court has referred to the statements of PWs Nichno Devi, Beli Ram and Bimla Devi into consideration and on the basis of their statements have mainly held the accused guilty in the case. PW Nichno Devi is the wife of the deceased-Hans Raj and has vividly stated of having witnessed the occurrence after the meeting called in the house of Thakur Dass came to an end. She has deposed that of the attack having been made by the accused with a sharp edged 'Darati' on the head of the deceased when she along with others came out of 12 CRA No.23/2016 the door of the room. To the same effect is the statement of PW Beli Ram, brother of the deceased, as he has deposed that as he along with others was coming out of the house of Thakur Dass, the deceased was attacked with a sharp edged darat. He also mentions of his presence along with his family members in the house of Thakur Dass in connection with the Panchayat. The accused fled away from the spot after committing the crime. He has vividly stated that he was on the door and the others had just crossed the door when the accused had attacked the victim. The distance amongst the witnesses was notably very short one as per the witness. PW Bimla Devi, sister-in-law of the deceased has only seconded the version of PWs Nichno Devi and Beli Ram so far the attack made by the accused on the head of the victim is concerned while they were coming out of the house of Thakur Dass. Like the aforesaid two witnesses, she has also stated that while she along with others was on way out, Hans Raj was attacked by the accused on his head. The accused is alleged to have run away from the spot after attacking the victim. The statements of aforesaid three witnesses when viewed the Court finds no major discrepancy in their statements as the place where the occurrence took place and the manner in which the accused caused injury to the victim with sharp edged weapon is concerned. It is suffice to mention that the other witnesses who have been cited as eye witnesses to the occurrence have 13 CRA No.23/2016 not indeed stated that they witnessed the attack made by the accused on the victim though they record their presence in the house of Thakur Dass more or less when the accused made murderous attack upon the victim.
27. The learned counsel for the appellant has argued that the trial court has not appreciated the aspect of the other eye witnesses having not falling in line with the prosecution assertion yet it held that the statement of three prosecution witnesses who are closely related to the victim can be believed. It is evident from the statements of other eye witnesses including Thakur Dass and Prabhu Ram flatly refusing that they saw the accused causing attack upon the victim.
28. As mentioned above, the occurrence itself has taken place in the house of PW Thakur Dass. PW Banti Devi, PW Anchal Singh even refused to acknowledge the presence of the accused in the house of Thakur Dass at the time of occurrence. PW-8 Kasturi Lal also speaks in the same manner as he states that he does not know as to who had killed Hans Raj. The argument of learned counsel for the appellant as two sets of eye witnesses have surfaced in the prosecution case the version put forth by the witnesses who are closely related to the victim cannot be believed by discarding the other eye witnesses of the case. Of course, it is also pleaded that the persons who have to some extent spoken in favour of the prosecution being related to the victim can be 14 CRA No.23/2016 safely termed as interested witnesses and, therefore, their statements are tainted one. The counsel for the respondent has argued that the submission of appellant does not hold water as the witnesses who are related to the victim and have deposed in favour of the prosecution cannot be said to be interested witnesses on aforesaid account only. The court is of the view that mere relation of the eye witnesses with the victim and who speak in favour of the prosecution cannot be a reason and ground to discard the testimony of the witnesses solely on the said basis. No presumption to that effect can be raised unless the overall circumstances do convince the Court to hold so. If this principle is to be accepted as general rule then in no case the relation of the victim is to be believed who will not normally try to implicate the person other than who has committed the crime. As far as the present case is concerned the appellant has not been able to convince this court that the statements of the witnesses including that of Nichno Devi and Beli Ram can be termed as tainted one they being the wife and brother of the victim respectively. The witness had no enmity with the accused as such when she deposes of the involvement of the accused in the occurrence. The trial court has taken care of this aspect of the case in detail and this court also finds no reason not to agree with what has been held by the trial court.
29. The trial court in its elaborate judgment has also discussed in detail the 15 CRA No.23/2016 impact of the statements of those eye witnesses who have otherwise turned hostile to the prosecution case and not supporting the factum of their having being not witness to the assault committed by the appellant. In the backdrop of the statements of other eye witnesses, the trial court has noted that those witnesses do record their presence on the spot though not supporting the case of the prosecution of their being actual witness to the occurrence. Those witnesses have noted in their deposition that they saw the victim injured in the house of Thakur Dass though stating that they do not know how the victim got killed or who had killed the victim. It has come in the statements of the PWs Nichno Devi, Beli Ram and Bimla Devi that they were in the process of stepping out of the door of the house of Thakur Dass when the occurrence took place. The court in totality of the circumstances of the case does not find any reason to disbelieve the statements of the three witnesses who belong to the family of the deceased or find their statements exaggerated ones and do not in any way get diluted in the face of the statements of other eye witnesses who failed to support the prosecution case.
30. It is submitted on behalf of the appellant that the appellant is entitled to benefit of doubt on the ground that there was darkness at the place of occurrence and, therefore, the identity of the accused cannot be said to have established when the alleged assault took place. Again the 16 CRA No.23/2016 court takes into consideration the aspect that the incident has taken place immediately after the meeting in the house of Thakur Dass came to an end. The persons present in the meeting were on their way out of the house of Thakur Dass where the victim and the deceased were also present. As the witnesses related to the victim were very nearby to the victim and the accused, and knew each other due to their presence in the Panchayat/meeting, the assertions of those witnesses having witnessed the crime cannot be doubted. It is relevant to mention that PW-3 Bimla Devi has deposed that it was not too dark at the place of occurrence though she states that she could not identify the weapon of offence due to darkness. It is not that the Panchayat/meeting which took place in the house of Thakur Dass was held in darkness and, therefore, it could be said that the persons present in the meeting could not be said to have recognized each other. It is evident from the statement of the witnesses produced by the prosecution that all the witnesses who were present in the meeting have deposed about the names of those persons who were present in the meeting. Though it is a different matter that all the witnesses may not have deposed in tune with each other of the names of the persons who were present in the meeting. There is no suggestion otherwise from the defense during the recording of the statements of the witnesses that due to darkness the witnesses, family members of the victim, could not see the accused 17 CRA No.23/2016 assaulting the victim Hans Raj. The argument of the appellant does not carry weight so far as this aspect of the matter is concerned.
31. The trial court has also taken note of certain contradictions that have appeared in the statements of those eye witnesses on which the trial court has relied upon to hold the appellant guilty. Those contradictions include the statement of PW Nichno Devi having recorded in the statement before the court that she chased the accused after the accused attacked her husband and came back but the same does not find mention in the statement recorded under Section 161 Cr.P.C. PW Beli Ram in his statement before the court that he chased the accused for some distance but again that does not find mention in the statement recorded under Section 161 Cr.P.C. The statements of PW Nichno Devi and PW Beli Ram before the police do not record about the holding of Panchayat though it is mentioned in the statements recorded before the court. The trial court has rightly held that the contradictions are minor one and do not impact the case of the prosecution. It is not necessary that the act done by one witness is observed in detail by the other witness in a occurrence where the commotion is bound to take place immediately after the same. Each individual acts and reacts to a particular situation in his own way and it is not possible otherwise for one person to see the precise reaction of another person present on the spot and remember the same. 18 CRA No.23/2016
32. The other point which is raised by the appellant that the statements recorded under Section 161 Cr.P.C. and under Section 164-A Cr.P.C. of the witnesses, who are related to the victim do not spell out all the details which have been deposed by them in the witness box and therefore, the statements of these witnesses are required to be discarded. The court is not in agreement with the argument of the appellant. The trial Court has appreciated this aspect of the matter and has rightly held that the contradiction that surfaced in the statements of these witnesses do not create any dent in the case of the prosecution. It is trite preposition of law that every omission in the statement recorded before the police or before the magistrate under Section 164-A Cr.P.C., but revealed in the witness box cannot be by itself a reason to discredit the statement of the witnesses if those omissions do not otherwise impact the statements of the witnesses qua what has been deposed so far as actual occurrence is concerned. The court does not doubt the statements of the witnesses who have supported the prosecution version on account of aforesaid reason. The counsel for the appellant has not been able to otherwise make out that the discrepancy occurring in the statements before the police or before the Magistrate qua the statements recorded in the court are fatal for the prosecution. The court finds no reason to disagree with the reasoning given by the trial court in this regard.
19 CRA No.23/2016
33. The trial court has also dealt with the motive part in its judgment and held that there was motive for the appellant to assault the victim with a murderous intention. The animosity between the two factions started only after the daughter of Thakur Dass is stated to have married the son of Beli Ram and obviously did not end when in the Panchayat it was only decided that the parties should talk to the son of Beli Ram. It has come on record that no quarrel took place or any hot exchanges were made between the victim and the accused during the meeting. The marriage aspect and Panchayat failing to take any firm decision against the deceased Hans Raj appears to have angered the accused and which resulted into attack upon the victim. Even the accused in his statement under Section 342 Cr.P.C. has admitted that he harboured enmity against the victim. The trial court has noted this important admission of the accused. Even if the motive aspect is to be overlooked the same does not impact the case of the prosecution as the case of the prosecution mainly hinges upon the witnesses who witnessed the occurrence.
34. Disclosure statement and recovery of weapon of offence :
The prosecution has examined PW-9 Krishan Singh and PW-10 Ashok Kumar in respect of the alleged disclosure made by the accused during his custody and consequently the weapon of offence recovered by the police on the said disclosure statement. The trial court has held that the 20 CRA No.23/2016 prosecution failed to establish this aspect of the matter. PW Krishan Singh has deposed that he was summoned to the house of Thakur Dass where murder had taken place. He speaks of the presence of the accused there and that he was in custody. The witness has been declared hostile. PW Ashok Kumar posted as constable in Police Station, Billawar has deposed that the accused was taken out from lockup by SHO and was questioned in presence of Krishan Kumar. The accused disclosed that he had concealed darati in the bushes which can be recovered on his nishandehi. However, he also states that the memo Ext-P10 which bears his signatures and contents of the same are also true but the memo was prepared on the spot. So far as discovery of the weapon of offence is concerned, PW-Krishan Singh has stated that the photographs of darati were taken and the police handed over the darati to accused and again the photographs were taken. It may be noted that the witness was declared hostile as stated above. PW Ashok Kumar has during the course of examination deposed that after the disclosure was made by the accused the police party went on spot where some respectable citizens were also called. The accused entered inside the bushes and after giving nishandehi got recovered the darat from the bushes. Photographs were also taken on spot. The recovery memo Ext-P10/1 bears his signatures and contents are correct. The place of recovery is at a distance of 30 ft. from the 21 CRA No.23/2016 house of Thakur Dass. The place had 4/5 ft tall bushes but had no large trees on spot and further that one could not see the darati inside the bushes. But then the witness has again states that if someone is to visit the field he could see the darati. The witness also records that PW-Krishan Singh had accompanied the police party to the place of recovery. The trial court, as stated above, was not satisfied with the aspect of disclosure statement of the accused and consequently recovery of weapon of offence on the ground that it was stated by the PW Krishan Singh that the place of recovery of darati was visible to everybody and the place could be assessed by one and all and PW Ashok Kumar also stating at one point that if one is to visit the field then the darat is clearly visible to that person. The court is of the view that the trial court has erred in holding that the prosecution could not establish the factum of disclosure statement of accused and recovery of weapon of offence in consequence to the same. The court is not in agreement with the little blemish that may have occurred on this part of the prosecution story. No doubt, PW-Krishan Singh did not support the prosecution case but that does not knock out the prosecution version on the whole when the statement of PW-Ashok Kumar is also analyzed. The trial court disbelieving the prosecution case on the ground that the PW-Ashok Kumar stated that he signed the disclosure statement on the spot and not at the time of disclosure statement is a 22 CRA No.23/2016 minor aberration and does not dent the point under discussion. So far as the recovery part is concerned, this witness has categorically stated that the darati was lying in the bushes and could not be seen. Later on merely stating that the darati could be visible if one could go to the field is not sufficient to hold that the place where the darati was kept could be easily accessed by everyone. The prosecution has been able to satisfy the requirement of Section 27 of the Evidence Act. It is essentially proved by the prosecution that the accused was in custody when he made the disclosure statement and the information as mandated under Section 27 of the Evidence Act was revealed by the accused. The discovery of the fact by the accused that he had kept the darati in the field of Thakur Dass and he is in the knowledge of the same and can get it recovered on nishandehi is proved by the document of disclosure statement exhibited as Ext-P10 and recovery made in pursuance to the same vide recovery memo Ext-P10/1.
35. The victim had received the injuries and the same is stated by the prosecution witnesses who are believed by the court. The prosecution witnesses who otherwise did not support the prosecution case did depose of their seeing the victim in an injured condition on the spot itself. PW-Dr. Sewa Singh has conducted the post-mortem of the deceased on 17.10.2011 and has found the following external and internal injuries on the body of the deceased:
(1) Stitched wound, present over left temporo-parietal region of head 23 CRA No.23/2016 extending up to occiput measuring 15 cms in length.
(2) Abrasion reddish brown in colour measuring 1.5 cm x 1 cm present over right side of the forehead 2 cm above the lateral 1/3 rd of right eye-brow.
(3) The internal injury was bruise under scalp with extravasation of blood in left temporo-parietal and occipital regions. Fracture of left temporal and parietal bones present. Membranes cut, brain substance, oedematous and oozing out of fractured site. Intra cranial hemorrhage with sub-durial hemorrhage, sub-arachnoid hemorrhage and intra cerebral hemorrhage present.
36. The post-mortem report is exhibited as Ex-PM. As per the opinion of the doctor the deceased had died due to craneo cerebral damage due to trauma head caused by heavy sharp edged weapon. As per the post- mortem report two external injuries were found on the body of the deceased. The Injury No.2 could have been caused by a fall or by a blunt object. As per the witness, heavy sharp edged weapon would mean axe, chopper, sickle etc. The witness was not shown the weapon of offence or produced before him for examination. It is evident that the death of the victim has taken place due to the injuries caused to him on his head. No doubt the weapon of offence has not been shown to the doctor so as to make out on the basis of his statement that the injury was caused by the darati. However, the fact that the victim had received fatal injury due to sharp edged weapon does not lose sheen only for the reason that the weapon of offence was not shown to the 24 CRA No.23/2016 doctor when the same is viewed in the light of the statements of the eye witnesses supporting the prosecution case.
37. The learned counsel appearing for the accused has laid much stress on the point that even if it is held to be proved that the accused was instrumental in attacking the victim with darati or some other sharp edged weapon which resulted into the death of the victim yet the appellant is not required to be held guilty of offence under Section 302 RPC and at the most Section 304 Part I or Part II gets attracted in the present case as there was no premeditation on the part of the accused to eliminate the victim and the accused did not intend to cause fatal injury to the victim as the victim was not repeatedly attacked by the accused. The learned counsel has cited 1983 SCC (Cri) 612 and 1997 (2) Crimes, 71 in support of his contention.
38. Undisputedly, each case has its own peculiar circumstances and has to be dealt with taking into consideration all facts that emerge from the record. What has been held by the Hon'ble Courts in the light of the facts of those cases cannot be disputed. The part of body where the injury is inflicted and the weapon which has been used by the accused upon the victim are the key circumstances which figure out as to whether Section 302 RPC gets attracted in a given case or not. It is also argued on behalf of the appellant that there was no enmity between the accused and the victim and that what happened was at the 25 CRA No.23/2016 spur of moment. In the present case, the animosity of the accused against the victim appears to have developed when the elopement/marriage of the children of two factions took place and got cemented when at the end of the meeting which took place in the house of PW-Thakur Dass no decision against the son of Beli Ram was taken. The hard blow by the accused-appellant upon the very vital part of the body of the victim with the sharp edged weapon shows that the accused intended to eliminate the victim. The court can conveniently take into consideration the report of medical officer on the docket Ext-P11 prepared by PW-Hans Raj Sharma who was deputed by SHO to the hospital. In the report, the medical officer has noted that the patient is not fit to make a statement. PW-Hans Raj has also deposed about the said note having been written by the medical officer on the docket Ext-P11. The report of the doctor itself shows the impact of the injury upon the victim and the critical state of the victim who was not even fit to make the statement in the hospital on 15.10.2011 the day after the occurrence took place. The court does not find merit in the argument of the learned counsel for the accused that the accused could not be held guilty of offence under section 302 RPC. Another argument raised by the accused is that the victim was only son-in-law of Beli Ram and there was no reason for the accused to kill him. One cannot read as to what is going on in the mind of the 26 CRA No.23/2016 person at a given moment. May be the accused found the victim to be an easy target and therefore committed the crime.
39. The Investigating Officer has not been examined by the prosecution in the case. Needless to mention that mere absence of the Investigating Officer from the witness box does not ipso facto result into the failure of the prosecution case though the presence of the Investigating Officer clarifies certain discrepancies which may have occurred in the evidence that is brought on record by the prosecution. The prosecution case does not suffer due to absence of the Investigating Officer from the witness box as the prosecution has been otherwise able to prove its case beyond shadow of doubt against the accused-appellant particularly on the strength of the statements of the eye witnesses upon which the court has relied upon.
40. The other evidence on the record is more or less formal in nature as the same relates to preparation of seizure memos of articles and other things.
41. In the facts and circumstances of the case, the Court is of the considered view that the trial court has not erred in holding the appellant guilty of offence under Section 302 RPC, convicting and awarding the sentence of life imprisonment and the fine of Rs.20,000/- and in default of payment of fine the further simple imprisonment for a period of three months.
27 CRA No.23/2016
42. The Court finds no reason to interfere in the judgment and order impugned in the appeal. The appeal is, accordingly, dismissed. The reference sent for confirmation of sentence is accepted and accordingly disposed of. Record of the trial court be sent back.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu :
23.05.2022
Pawan Chopra
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
PAWAN CHOPRA
2022.06.01 14:33
I attest to the accuracy and
integrity of this document