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Jammu & Kashmir High Court

State Of Jammu And Kashmir vs Sham Din And Others on 2 November, 2017

Bench: Alok Aradhe, Tashi Rabstan

                 HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU
                                ....

Cr. Acq. Appeal No.08/2009 Date of order: 02.11.2017 State of Jammu and Kashmir v.

Sham Din and others Coram:

Hon'ble Mr. Justice Alok Aradhe, Judge Hon'ble Mr. Justice Tashi Rabstan, Judge Appearance:

For appellant (s): Mr. Ravinder Gupta, AAG For respondent(s): None.

Whether approved for reporting? Yes/No Tashi Rabstan-J

01. This appeal under Section 417 Cr.P.C is directed against order dated 18.11.2008 passed by learned Principal Sessions Judge, Udhampur in case titled State v. Sham Din and others by virtue of which the respondents have been acquitted for commission of offences under Sections 456/302/34 RPC registered at Police Station Chenani by giving them a benefit of doubt.

02. Prosecution case in brief as emerging out from the perusal of the record is that one Alma Bibi was married to Ghulam Ali - brother of accused, and sister of accused, namely, Zaitoon Bibi with deceased. The relation between Ghulam Ali and Alma Bibi turned bitter after some time, which resulted in divorce of Alma, succeeded by acrimonious relation between two families. In settling of scores, deceased started maltreating his wife. The continuous maltreatment of sister of deceased at the hands of deceased made accused inimical towards him and at number of Cr.Acq. Appeal No.08/2009 Page 1 of 15 occasions they extended threats to the life of deceased. In the evening of 25.11.2006, deceased quarreled with his wife and also threatened her, whereupon along with her children went to the house of the accused. It was about 10.30 PM when the accused persons with intention to murder the deceased barged into his house and assaulted him with fists and blows. On account of internal injuries, the deceased died on spot. The occurrence was reported to Police Station Chenani, next day in the morning at 5 AM by ex-Sarpanch Sanjay Kumar on telephone, upon which FIR u/s 452/302/34 RPC was registered and investigation of the case assigned to PW-Ram Dass Sub Inspector, who went to spot and prepared the site plan. He found the I-card of accused Shams Din and right shoe of accused Mohd. Bashir near the dead body, which were seized by him in presence of PWs Bag Ali and Mohd. Babu. The dead body was shifted to Chenani Hospital for postmortem. As per postmortem report deceased died on account of injuries sustained to vital organs including spinal cord, testicles and rupture of spleen. On the same day accused were arrested and statement of PW-Jamal Din, father of deceased, who reiterated the prosecution version, narrated herein above and inter alia, stated that when accused entered his house, he was sitting in one room along with the deceased. There was none else present in the house as his wife had gone to house of her daughter. The house of PW-Mohd Babu is close to his house. The accused persons besides thrashing deceased with fists and legs, twisted his neck. When he raised hue and cries, PW-Mohd Babu came to spot along with his wife and mother PWs- Bano and Hussain Bibi. At that time accused were still assaulting deceased. Thereafter, PW-Bag Ali also came to spot. All the witnesses tried to rescue the deceased, but accused persisted in assaulting him, who succumbed to the internal injuries. Upon raising hue and cries, the villagers came to spot, whereupon Cr.Acq. Appeal No.08/2009 Page 2 of 15 accused ran away. I.O. also recorded statements of PWs-Mohd. Babu, Bagh Ali, Bano, Hussain Bibi, Sanjay Kumar, Lal Hussain, Shamsher Singh, Mirza Mohd. Atar Bibi Ali Hussain, Shanker, Manzoor Hussain, Nazir Ahmed Shan, Parvez Akhter, Mohd Latif, Mohd. Sharief, Zaitoon Bibi, Sher Ali, who supported prosecution case. After completing investigation, case was presented against accused in the court of learned Judicial Magistrate, Chenani, who committed it to learned Principal Sessions Judge, Udhampur. Charges under Sections 456/302/34 RPC were framed against accused, who pleaded not guilty and claimed to be tried.

03. The prosecution in order to prove its case examined all listed prosecution witnesses, except PWs-Lal Hussain, Ali Hussain, Parvez Akhter, Sher Ali, who have been given up. The Sessions Court vide impugned judgment has acquitted respondents of offences alleged against them. Being aggrieved, instant appeal has been filed.

04. It is contended on behalf of the State that Sessions Court has ignored the important pieces of evidence. The judgment is based on conjectures and surmises. The occurrence is sufficiently proved by the ocular evidence corroborated by the medical opinion. The Sessions Court has not appreciated the prosecution evidence in true and proper perspective and reached to the conclusions which are against the weight of evidence. It is further contended that there was enough material available on record to connect the accused persons with the offences in question. It is further contended that the Sessions Court has failed to view the evidence on record in its correct perspective which has resulted in erroneous findings and consequent judgment.

05. When we have read over statements of prosecution witnesses it reveals that there was no reliable evidence to support the accusation against the accused and the order of acquittal recorded by the learned Sessions Cr.Acq. Appeal No.08/2009 Page 3 of 15 Court does not suffer from any infirmity. The prosecution evidence is full of glaring discrepancies and contradictions on material particulars. It also avers that there is doubt regarding registration of FIR in light of conflicting statement made by Sarpanch Sanjay Kumar. As per accused, FIR has been antedated and there was enough time for doing this as copy of FIR was sent to the Magistrate after two days. Accused has also submitted that evidence of star prosecution witnesses is contrary to the statement made by them to the Police during investigation and as such their evidence cannot be relied upon.

06. We have considered the submissions made by learned counsel for the appellant and have perused the record.

07. Before proceeding further it would be profitable to have glance and discussion of prosecution witnesses herein after.

08. PW: Mohd. Babu has deposed that deceased was his cousin brother and both the families used to live under the same roof. Some 15 years ago, Gh. Ali divorced Mst Alma Babi, the sister of the deceased. Since the day of divorce, she is putting up with her parents. Deceased often used to maltreat his wife Zaitoon, sister of the accused in revenge to the divorced given to her sisters by her husband Gh. Ali.On the day of occurrence, he was sleeping in his house, when at about 10:30 P.M. he heard the cries of deceased and he saw the accused beating him with fists and legs. Accused had twisted the neck of deceased. He was followed by his Bano, PW Bag Ali & Hussain Bibi. He had tried to intervene but that time deceased had cried. Lots of people had reached spot whereupon the accused ran away from spot. Police also seized right shoe of accused Bashir from Spot. In cross-examination he admitted that he has no personal knowledge about the skirmishes taking place between the accused and his wife, who was not present at the time of occurrence. She was however, present when her husband came back to this house at 6 P.M. He does not know the time by which the wife of the deceased went to house of parents. There were no utensils and other household boxes found in that Cr.Acq. Appeal No.08/2009 Page 4 of 15 room. The witness admitted that there is no mention-twisting of beard of deceased in his police statement.

09. PW: Bag Ali has deposed that he reached the spot after 4/5 minutes. By that time the occurrence was over. He reached the spot alongwith his wife and mother. Prior to the occurrence the deceased had beaten his wife, who had reported the matter to the police, which arrested and detained him in the lock up for 2/3 days. Police remained present on the spot for 1/1/2 hours and then took away the dead body. He has deposed that he was married with two sisters of deceased. The deceased in retaliation to the divorce of his sister, had expressed his desire of divorcing his wife. It was 10:30 P.M. when he came out of his house for urination. He heard the sound of noise coming from the house of the deceased, whereupon he went there. He saw the deceased in one room, who was lying on the ground and being beaten by accused with fists and legs. He further deposed that in his presence the deceased died. Police came on spot by 7:00 A.M. and seized I-card and right shoe of accused. In cross examination, the witness deposed that Mohd, Sharif had accompanied him to the house of deceased. The wife and mother of PW Mohd. Babu were verbally requesting the accused to let off the deceased. He had seen the father of deceased sitting in one corner of the room. One prior to the day of occurrence, deceased had beaten his wife whereupon he was arrested and detained in custody for two days by the police. After coming out of the room in which occurrence had taken place, he saw 7/6 persons including Numberdar, Mohd. Sharief sitting outside the room on a cot. He had signed the seizure memo in the village, where police had come second time.

10. PW: Gh. Nabi Head Constable has deposed that he was posted as Monar in P/S Chenani. On 20.11.2006 in the morning, Sarpanch Sanjay Kumar informed by telephone that on account of past rivalry between the parties the deceased has been killed in the previous night. On cross examination he has deposed that he had registered FIR because SHO had received information about the occurrence on the telephone.

11. PW: Dr.S.D.Attri, Asstt.Surgeon has deposed he along with Dr. Vineet conducted postmortem of body of deceased and notice ten injuries. In his opinion deceased died due to multiple injuries to vital organs including spinal cord, spleen and testicles. He has also proved the opinion regarding possibilities of injuries due to fists and blows. In cross examination witness states that injuries on testicles, abdomen and spinal cord were fatal. Injury No2 and 7 could have caused instant death. He stated that the injury No.1,3,5&8 could be possible by fall and injury No.7 is not possible due to fall. If a person falls flat on the hard surface then rib injuries are possible. There can be no injuries to testicles due to fall.

12. PW: Jamaldin, father of deceased has deposed that relations of deceased with his wife were not cordial. At about 10:00 P.M. the accused started beating the deceased with fists whereupon PW Bano, Bano Hussain came to spot. At that time the accused were still beating the deceased who had been thrown on the ground. Accused Shamsdin was twisting the neck and Accused Altaf Din inclicted kicks on his private parts and died on spot. Sarpanch came on spot in the morning and informed the police about the occurrence. Accused had made confession before Sarpanch. In cross examination witness deposed that police came to spot after sun rise, along with ten handcuffs and remained on spot for half an hour. During this period, police recorded statements of witnesses but he does not remember their names. When accused came to spot he and deceased were sitting on cots. The accused did not enquire from them as to why they had beaten Zaitoon and directly attacked with fists, blows and sticks. When the people and police came to spot, the dead body was lying in the same condition on the ground. According to the witness when his statement was recorded by the police next day he had told the police that accused had tied both hands and legs of deceased, but this fact has not been recorded in his statement.

13. PW: Mohd. Sharief, Numberdar, has deposed that on 25.11.2006 someone informed him in telephone about the death of deceased. The relations Cr.Acq. Appeal No.08/2009 Page 6 of 15 between the deceased and his wife were cordial but they used to quarrel with each other in respect of some land. On cross examination witness deposed that PW Fareeq S/o Bashir, who is putting up at a distance of 3/2 jareeb from his house, had informed him on the telephone to come to the house of deceased as he had been killed by some persons. He then went to the house of Hafeeq alongwith his son where PWs Bag Ali, Mohd. Hussain and Babu were already present. The father of deceased had gifted 16 kanals of land to his divorced daughter Alma Bibi.

14. PW: Shamsher Singh has deposed that on 26.11.2006 he had gone to P/S Chenani, where he saw the accused in lock up. Thereafter police took the accused to the place where right shoe was concealed.On cross examination the witness has deposed that at the time of recovery of shoe, besides him, Sarpanch Kuldeep, Nazir ahmed, Shafi and Manzoor were only present. But except him, no one else put signatures on the recovery memo. Disclosure statement was only signed by him and Sarpanch Sanjay Kumar.

15. PW: Sanjay Kumar has deposed that on account of divorce of Alam Bibi the relations between the two families were strained.. On 26.11.2006 PWs Bag Ali and Babu came to his house and told him about the murder of deceased whereupon he went to the house of deceased and saw the dead body. On cross examination the witness has deposed that it was Munshi of police station who attended telephone call and he told him only that murder had taken place and send the police immediately.

16. PW: Aftab Bibi, sister of deceased, has deposed that at about 3 0' clock in the night she was informed on telephone about the murder of her brother, whereupon she went there with her husband and saw the dead body of her brother in a room.On cross examination the witness deposed that she had told the police that hands and legs of the deceased were tied with a rope but she cannot say as to why this fact has not been recorded in her police statement.

17. PW: Mirza, brother-in-law of the deceased had deposed that deceased used to beat his wife in revenge to the divorce given to his sister by the elder brother of the accused. Later on this witness came to be declared as hostile.

18. PW: Mohd. Latif, the sister's son of deceased has deposed that deceased used to harass his wife on account of divorce given to his sister. On cross examination the witness disowned the portion of his statement recorded by police u/s 161 Cr.P.C. ,wherein it is mentioned that he had gone to the house of Bashir on 25.11.2006. The deceased used to come to his house sometime after 15 days and sometime after one month. He further states that he has no knowledge, who has killed deceased.

19. PW: Dr. Vinit Gupta is the other doctor who has assisted Dr. Atri in conducting the post mortem of deceased. His evidence is similar to that of Dr. so far it relates to the nature of injuries.

20. PW: Sehan Bibi, sister of father of deceased has deposed that her house is close to the house of deceased and under common roof. She saw the accused assaulting the deceased. On cross examination the witness has deposed she had seen Zaitoon present in the house of deceased along with her children at 6:00 P.M. She does not know who caught the accused persons before locking them in the room.

21. PW: Ram Dass has deposed that on 26.11.2006 he was posted as Add.SHO, P/S Chenani. The accused was arrested from the place near to Panchayat Ghar. According to the witness accused was bearing enmity with deceased as she used to assault their sister and as such, they committed the murder of deceased.On cross examination the witness deposed that house of Sher Ali is at a distance of 150 feet from the house of deceased. When he went to spot he saw about 100 persons. It was further revealed that prior to occurrence deceased and his wife had quarreled with each other. The telephone call was attended by SHO and on his dictation he recorded the FIR.

22. PW: Anu Sharma, the then SHO, P/S Chenani has deposed that he was informed by Sarpanch Sanjay Kumar on telephone about the murder of the deceased, whereupon the FIR came to be registered. On cross examination the witness deposed that the reference to telephonic call by Sarpanch has not been made in the CD file. Sarpanch had also informed said Munshi on telephone about the occurrence. SHO had also attended the telephonic call. He denied a suggestion that after coming from place of occurrence FIR was registered.

23. As per prosecution story when the accused entered house of deceased, he was sitting with his father Jamal Din in a room as such statement of PW-Jamal Din made to Police was of paramount importance. According to police, when he was sitting with deceased son, accused barged into room at about 10.30 PM, after throwing deceased on ground started beating him with fists and kicks. They also twisted the neck. Upon raising hue and cry by him, PW Babu his wife Bano and mother Hussain Bibi, came to spot and saw accused beating deceased. Thereafter PW Bag Ali came to spot. All these witnesses tried to intervene but of no avail and accused persisted in beating deceased and caused internal injuries to him who succumbed to such injuries. After deceased died, number of persons came to spot, whereupon accused ran away from the spot, leaving behind an I-Card by accused Shams Din and one shoe by another accused. It is clear when accused twisted neck of deceased only his father was present on spot. PWs Babu, Bano and Hussain Bibi were first to come on spot followed by PW Bag Ali who tried to save deceased but of no result and in the presence accused persisted in beating deceased for about 15 minutes till he died. These witnesses are closely related to deceased. However, PW Bani turned hostile. After going through the evidence of these four witnesses, it is noticed that same is at variance to each other and contrary to Cr.Acq. Appeal No.08/2009 Page 9 of 15 prosecution case. PW Jamal Din has excluded presence of PW Bag Ali from spot. As per his statement, PWs Babu, Bano and Hussain Bibi were present. Despite excluding the presence of PW Bag Ali, he has given out eye version account of occurrence, which cannot be relied upon. PW Jamal Din has also introduced one person, namely, Babu son of Irsail, VDC member, as eyewitness who is neither cited as witness nor examined. PW Jamal Din has deposed that accused Shamasdin twisted neck of deceased whereas accused Bashir was standing on the chest and accused Altaf Din kicked the testicles of deceased. This portion of his evidence has neither been supported by any other four witnesses nor does same find mention in his statement recorded under Section 161 Cr.P.C. except twisting of neck. Thus, this witness had made a glaring improvement in his evidence so as to fit in the story of injuries to testicles of deceased and fracture of rib of the deceased due to weight of accused Bashir. Even he has exaggerated occurrence to such an extent that it is difficult to believe him that he is speaking truth. If he is not to be blamed for exaggeration of occurrence then it can safely be said that he was not present on spot. If his evidence was taken as correct version of occurrence then there was no difficulty in holding that other four eyewitnesses were not speaking truth. Had all the eyewitnesses, including father of deceased, really witnessed occurrence, at least, there would have been some symmetry in their evidence on material particulars. The evidence of so called eyewitnesses was shattered after collectively reading their evidence along that of PW- Attar Bibi, sister of deceased about the participation of accused in the occurrence. PW Jamal Din has gone to the extent of making false statement that accused made confession before PW-Sanjay Kumar Sarpanch, which is not prosecution case nor has any witness, including Sarpanch, made such statement before police. PW Jamal Din has Cr.Acq. Appeal No.08/2009 Page 10 of 15 himself rendered his integrity doubtful by deposing that accused had used Danda in assaulting deceased which is not the prosecution case nor had he made such statement during investigation neither any other eyewitness made any such statement either before police or in the court. I.O. Ram Dass has also not supported him in this regard. One fact remains admitted by him that accused had escaped from spot after committing the crime. So far PW Babu examined by prosecution is concerned, his evidence is not trustworthy. He has given different version(s) of the occurrence. He has deposed accused Shamas Din was seen by him twisting the neck of deceased. So far reliability of PW Bag Ali is concerned that has already been discussed hereinabove. Though he was not present at the time of occurrence still he has tried to behave as an eyewitnesses, which is also demonstrated from the nature of evidence he made in the Court. So statement of Bag Ali cannot be relied upon. So far PW Hussain Bibi is concerned, her evidence pointed out that she has totally given different and contrary version which was not only in conflict with evidence of other eyewitnesses but prosecution case as well. She has not spoken about the presence of his son on spot. The conduct of father and other eye witnesses appeared not to be above board. None of them went to inform Sarpanch nor did they go to lodge the report. This is also in conflict with the prosecution evidence as to who received detailed information in the police station and recorded the FIR. It is also prosecution story that before occurrence, Zaitoon was beaten by deceased whereupon she went to house of accused, who in revenge decided to eliminate deceased. PW-Mohd Latif, sister's son of deceased was cited as a witness to prove that when he went to house of accused on 25.11.2006, he saw Zaitoon telling their brothers that she has been beaten by her husband whereupon they decided to eliminate deceased and went to house of deceased at 10 PM and came back after Cr.Acq. Appeal No.08/2009 Page 11 of 15 one hour and told that they had killed deceased, but PW Mohd Latif has not supported this story of prosecution and has been declared hostile.

24. Similarly PWs-Shanker Singh, Nazir Ahmed to prove that when they had seen accused persons at about 9.30 PM going towards Chenani they asked accused where they were going so late, to which accused said the witnesses that on account of torture of their sister they were going to teach lesson to the deceased but both witnesses have not proved this fact and have been declared hostile. PW Manzoor Hussain was to prove that accused had told him some 4/5 days prior to occurrence that they are going to eliminate deceased as he was harassing their sister Zaitoon and on the day of occurrence when he went to spot he saw accused running away but this witness also not proved this fact and declared hostile. PW Parvez Akhter, Lal Hussain, Mohd Sharif and Sher Ali had to prove that upon hearing noise coming from the house of deceased they went there and saw the accused running away from there and also heard them saying that they had killed the deceased but said witnesses have not been examined and turned hostile. In order to prove the disclosure statement of accused Bashir and recovery of his shoe from heap of grass PWs Shamsher Singh and Mirza Mohd have been examined. PW Mirza has categorically deposed that neither any disclosure statement was made in his presence by accused nor any shoes was recovered by police, though PW-Shamsher Singh has proved the disclosure statement and recovery memo of shoes but his evidence is not inspiring one, thus, the disclosure statement and recovery of shoe of accused Bashir Ahmed is doubtful and the evidence of PW Shamsher Singh along with that of I.O. is highly unreliable. PW-Mohd Babu and Bag Ali have been examined to prove recovery of I-Card of accused Shamshid and shoe of accused Bashir Ahmed from the place of occurrence.

25. It has come on record that there was delay in lodging FIR. It has also come on record that accused with their father had joined the funeral procession of deceased which appears to be highly improbable. Had the accused really murdered deceased, they would have been last person to come to house of deceased and joined his funeral. Another factor, which makes prosecution case weak about involvement of accused is turning hostile of PW Bano, related by blood with accused. Though she has been declared hostile but her evidence does not appear to be doubtful. It is admitted on the part of prosecution that there are certain discrepancies and inconsistencies in the prosecution evidence but the same are minor in nature. Therefore, it is not safe to rely upon the prosecution evidence as the same suffers from glaring discrepancies and contradictions on material particulars. Every eyewitness has given his own account of version of occurrence. As already observed in fact, the eyewitnesses were not present on pot. Their evidence coupled with the evidence of other witnesses has made the prosecution case doubtful. While assessing and evaluating the evidence of eyewitnesses, the Court must adhere to two principles, namely, whether in the circumstances of the case it was possible for the eyewitnesses to be present at the scène; and whether there is anything inherently improbable or unreliable. Creditability of a witness has to be decided by referring to his evidence and finding out how he has fared in cross-examination and what impression is created by his evidence taken in manner and context of the case and not by entering into realm of conjecture and speculation. On scrutinizing the evidence of witnesses, it is found that their evidence is inconsistent with each other. In appreciating the evidence against the accused prime duty of the Court is firstly to ensure that evidence is legally admissible; that witnesses are credible and have no interest in implicating the accused or have an ulterior motive. Where the Cr.Acq. Appeal No.08/2009 Page 13 of 15 prosecution does not come out with the whole unvarnished truth, the Court can only try to guess or conjecture to decipher the truth and determination of the credibility of the witness(es). The real tests are how consistent the story is with itself; how it stands the test of cross examination; and how far it fits in with the rest of the evidence and the circumstances of the case. Cross examination is not the only method of discrediting a witness. The veracity of a witness is judged not solely from his individual statement but from his testimony taken a conjunction with all other facts brought out in the course of the testimony. Where improvements in earlier version are made at the trial, the court should sift the evidence with extraordinary caution and accept those portions which appear dully trustworthy either intrinsically or by corroboration from the other trustworthy evidence. Where the witness is found to be untruthful on material facts that is an end of the matter because it demolishes his testimony in entirety. In the instant case, the inconsistencies and improbabilities found in the testimony of the related eyewitnesses and other circumstances pertained to the significant vital and material aspect of the case and thus, demolish the prosecution case like pack of cards. The evidence rendered by the related eyewitnesses is partisan studded with improbabilities as the best independent evidence has been withheld by the prosecution for the reasons best known to them. The witnesses examined are related and interested and their evidence is tainted and smack of partisan and therefore, cannot be relied upon without corroboration from independent evidence. It is well settled proposition of law that unless there is absolute assurance of the guilt of accused on the basis of evidence on record, the order of acquittal is not liable to be interfered with in an appeal. The general principle of presumption of innocence of the accused and the benefit of reasonable doubt given by the trial court to accused should be kept in Cr.Acq. Appeal No.08/2009 Page 14 of 15 mind by appellate court while dealing with such an appeal, is the view expressed by the Supreme Court in Patel Hiralal Joitaram, appellant v. State of Gujarat, respondent, 2002 SCC (Cri) 1.

26. The Sessions Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court, while hearing an acquittal appeal, can re- appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the Sessions Court is also a reasonable view of the evidence on record and the findings recorded by the Sessions Court are not manifestly erroneous, contrary to the evidence on record or perverse. [See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124]

27. In view of the facts and circumstances of the case-in-hand coupled with the infirmities crept in the prosecution case, we are of the considered view that there is no illegality or infirmity in the impugned judgment as the findings recorded by the Sessions Court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.

                                  (Tashi Rabstan )      ( Alok Aradhe )
                                         Judge                Judge
Jammu
02.11.2017
Madan




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