Jammu & Kashmir High Court
State Of J&K vs Vijay Kumar And Others on 29 July, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
h475
S.No.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. 9900002/2009
Reserved on: 12.07.2021
Pronounced on: 29.07.2021
State of J&K ...Appellant(s)
Through:- Mr. Bhanu Jasrotia, GA
V/s
Vijay Kumar and others ...Respondent(s)
Through:- Mr. Dewakar Sharma, Advocate
Coram:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
1. The present Criminal Acquittal Appeal has been filed against the judgment dated 30.08.2008 passed by the learned Principal Sessions Judge, Rajouri in File No.2/Challan in case titled as State versus Vijay Kumar and ten others, whereby the respondents, who were facing trial in FIR No. 157 of 1995 for offences punishable under sections 307/436/452/147/323 RPC, have been acquitted.
2. It is stated that during the pendency of the appeal and trial, Ashok Kumar, Sham Lal Ss/o Nanak Chand and Gansham alias Shammi Kumar S/o Krishan Lal have died. The trial Court after holding that the prosecution has miserably failed to prove the allegations against the accused dismissed the challan and acquitted the accused. The order of acquittal recorded by the trial Court has been challenged in this appeal by 2 CRAA No. 9900002/2009 the State precisely on the ground that trial court has misappreciated the evidence on record and, thus, erred in acquitting the accused. The prosecution had established the commission of offences against the accused but the trial court without giving due weightage to the evidence passed the order of acquittal. The evidence produced before the trial court establishes charges against the accused/respondents beyond any reasonable doubt. The order of acquittal is, therefore, required to be reversed and accused convicted and sentenced for commission of offences for which they were charged.
3. Briefly stating the facts of the case are that an FIR No. 156 of 1995 for offences punishable under Sections 302/203 RPC was being investigated by Mr. Hem Raj, Sub Inspector (SI) Police Station, Rajouri while camping in the village Patrera, Panjgrain with regard to murder of a lady, namely, Kamla Devi W/o Vijay Kumar (accused). He recorded the statement of one Khoju Ram S/o Kala Ram R/o Patreara, Panjgrain on 14.05.1995 and found that Mst. Kamla Devi W/o Vijay Kumar-accused missing from her residence on which the police started its search operation. Her cloths were found at the bank of the rivulet and her dead body was also found in the said rivulet in the afternoon. At that time Vijay Kumar, Sanjay Kumar Ss/o Rajinder Kumar, Ajay Kumar S/o Badri Nath R/o Dangri, Ashok Kumar, Gulshan Kumar Ss/o Nanak Chand R/o Mubarakpur, Krishan Lal S/o Behari Lal R/o village Dassal, Om Prakash S/o Sant Ram R/o Dangri, Sham Lal S/o Nanak Chand R/o Mubarakpur, Kewel Krishan S/o Behari Lal R/o Dassal, Subash Chander S/o Om Parkash R/o Dangri, Vijay Kumar S/o Pritam Lal R/o Mubarakpur, Kewal Krishan S/o Khoju 3 CRAA No. 9900002/2009 Ram R/o Dangri, Bitu S/o Kewal Krishan R/o Dangri Gulshan Kumar S/o Rattan Lal and some other persons started crying and thereafter they entered into the house of Khoju Ram and his sons, namely, Vijay Kumar and Mukesh Kumar and set their houses on fire. Khoju Ram, Jyotsana D/o Tirath Ram and Priyanka Bala D/o Mukesh Kumar were locked inside the house when the house was set on fire. They were taken out by the Police. Khoju Ram got unconscious. Hem Raj-SI after recording the statement of Khoju Ram, regarding the incident in question, forwarded the same to Incharge Police Station Rajouri for registration of FIR and accordingly, FIR was registered for offences punishable under Sections 436/452/307/147/RPC and investigation was started. As per the police, the investigation was completed and the aforesaid offences were established against the accuses persons. The charge sheet regarding the same was filed in the court and charges for said offences were framed against the accused. The prosecution led the evidence. After the conclusion of the trial, the trial Court found that offences are not established against the accused and while acquitting them, dismissed the charge.
4. The case of the prosecution in appeal is that the evidence produced by the prosecution before the trial Court was sufficient to hold the accused guilty but the trial court had misappreciated the evidence and came to a wrong conclusion thereby acquitting them and that the evidence on record is sufficient and therefore order of acquittal is required to be reversed and accused convicted.
4 CRAA No. 9900002/2009
5. Now, in order to find out as to whether the trial court has failed to appreciate the evidence in proper manner or has wrongly misappreciated the same, the evidence produced before the trial court is required to be looked into and considered. To prove its case, the prosecution has produced and examined, PWs, Raj Rani, Hira Lal Panditta (SHO), Mohan Singh (SGC), Khoju Ram, Mukesh Kumar, Bajji Devi, Babli Devi, Padma Devi and Dr. Ghulam Ali Shah. There were about seventeen witnesses which were listed by the prosecution to support and establish its case against the accused. The witnesses, which have not been produced in this case, were eye witnesses and circumstantial witnesses.
6. The brief resume of the prosecution evidence produced before the trial Court is as under:
i) PW-Raj Rani states that on 14.05.1995 at about 1:00 p.m. she got information that her sister-in-law was missing from her house and at that time, she was in the house of her in-laws at Dassal. She immediately went to her parental abode where number of people had gathered near the rivulet. Chappal and shawal of the deceased was lying near the rivulet which was seized by the Police. Relatives of the deceased present on spot were extending threats to her relations and in the meantime she went to their house. While they were inside the house, the accused came there and set the house on fire. Mela Ram, Kewal Krishan, Krishan Lal, Sham Lal, Gulshan Kumar, Ashok Kumar, Subash Chander, Ajay Kumar, Vijay Kumar, Sanjay Kumar, Vijay Kumar, Mela Ram (ASI) and his brother Kewal Krishan had set their house on fire. She says that the Police 5 CRAA No. 9900002/2009 personnel Mela Ram (AI) and Kewal Krishan have been dropped by the Police from the investigation being the police personnel's. House of her father consisting of six rooms was burnt to ashes. According to her, the house was set on fire at 1:00 p.m. but the time recovery of dead body, she is ignored about the same. The information regarding missing of her sister-in-law was received by her at her matrimonial abode at 9:00 a.m. The deceased was issueless and was suffering from illness and at the time, when she reached near the river about 300 persons have gathered there. When the dead body was recovered, they extended threats and she and her family members went towards their house and when their house was set on fire they were still outside the house. However, her father was inside the house whose upper portion of his legs was burnt and hand of children were also burnt.
ii) PW-Hari Lal Panditta has said that on 15.04.1995, he was in village Patrera Panjgrain with regard to the investigation of the case FIR No. 156 of 1995 for commission of offences under Sections 302/201 RPC which was lodge in respect of murder of Mst Kamla Devi D/o Constable Rajinder Kumar. Chappal and Shawal of the deceased was lying near the Dobe Nallah situated at village Patrera Panjgrain. Her dead body was being fished out. Large number of people from the village Patrera Panjgrain were present on spot and at about 1:30 p.m. dead body was brought out of the river. Someone from the accused side gave a call to set on fire the house but he does not know who was that person and in the meanwhile, the accused 6 CRAA No. 9900002/2009 started running towards the house of the complainant. He also followed them but there was distance of about 200 mtrs between accused and the police party. It is observed by the trial Court that while the statement of this witness was being recorded, he pointed out towards the accused Vijay Kumar and Krishan Lal and stated that they declared that they would set on fire the house of the complainant, but he did not know their names. According to this witness, accused Vijay Kumar was carrying an oil gallon in his hands and he saw him standing in Verandah while setting the house of the complainant on fire. He further submits that he cannot identify the other accused by their faces. He also does not know the names of the accused. Other accused except Krishan Lal and Vijay Kumar were standing outside the house of the complainant. Complainant and two children, who were present inside the house, were brought out by him and the police personnel and at that time, fire flames were on the back side of his shirt. Additional police force was brought but by that time, the accused had fled away from the spot. The SHO, Head Constable-Sarver Hussain, Constable-Mohan Singh, SI-Hem Raj were also present on spot along with him. He neither knows the name of old man nor the kids. There were about 500 people who were gathered on spot and he does not know the names of everyone. He also does not know whether the burnt shirt of the old man was seized by IO or not. He returned back from the spot at 4:00 p.m. The old man and the kids were brought out of the house before the fire was extinguished. The husband of the deceased whose name is Vijay Kumar is an employee in ITBP. He did not arrest anybody as he was 7 CRAA No. 9900002/2009 not an investigating officer. He had not seen the accused, namely, Roshan Lal, Padma Devi, Babli Devi, Soma Devi and Mukesh Kumar on spot but saw them in the police station. Oil gallon was brought out by the accused from the house of the complainant. He did not try to arrest the accused because at that time, he was helping the old man and the children.
iii) PW Mohan Singh (SGC) has stated that a report was received by the Police through Chowkidar on 14.05.1995 about missing of Kamla Devi and Chowkidar narrated that a "Chappal and Chadder"
was lying on spot. They went on spot and father of the deceased was also there and dead body was being traced. There were heated exchange of words between the complainant and the Constable-
Rajinder Singh and other accused persons. Vijay Kumar husband of the deceased was taken to Police Station by the SHO while as Sub Inspector Hem Raj, Hira Lal Panditta, Mohd. Riaz and Sarver Hussain-Head Constable remained on spot. When the dead body was fished out relatives of the deceased said that they would set on fire the house. Effort was made to stop the relatives of the deceased but they did not stop them. Police followed them and the accused used bundles of mustard crop for setting the house of complainant on fire.
Noise of crying was heard from inside the house as small kids were weeping inside the house. Crying of old man was also heard and they were taken out from the room and saved. Firstly the old man was taken out of the room and thereafter children. The name of the said old man was Khoju Ram. House of the elder son of the Khoju Ram 8 CRAA No. 9900002/2009 is situated at a distance of 100 yards and the house which was set on fire is at a distance of 400/500 mtrs from the river. Vijay Kumar, Krishan Lal and others declared that they would set the house on fire and at the time, when he reached on spot the house was burning from all sides and there were flames. His statement was recorded on the day of occurrence and accused are known to him for the last 4/5 years but the dead body was recovered at 1:00 p.m. and they came back to Police Station at 5:00 p.m. after postmortem of the dead body was conducted. It has been mentioned by the trial court that this witness mentioned the name of accused Sanjay Kumar S/o Rajinder Kumar as Vijay Kumar when defence counsel pointed towards the said accused Sanjay Kumar and inquired from him his name.
iv) PW Khoju Ram has said that on 14.05.1995 his daughter-in-law jumped into river at 10:00 a.m. Information regarding which was given by him to her relatives. On getting the information, the relatives of her daughter-in-law and the accused came to his residence. Some of whom proceeded towards the river and some remained in the house and raised hue and cry. Wheat crop, which was harvested, was lying there outside and was brought inside the house and set it on fire. Ashok Kumar, Sanjay Kumar and Vijay Kumar set the house on fire with match stick. He was locked by them in the room along with two small female kids. Household articles valuing about Rs.5.00 lacs which were lying inside the house were also burnt in the fire. He does not know who saved him. The 9 CRAA No. 9900002/2009 Police reached the spot. Window was broken by the Police and they were taken out of the room. There were flames from the roof of the house due to which he suffered burn injuries in his head and arms.
Upper side of his eye lids were burnt due to fire and was got hospitalized by the Police in Rajouri where he remained under treatment for many days. He admitted his statement as EXPW-1/1 which was recorded by the police and he says that his statement was recorded twice. Marriage of deceased, Kamla Devi and his son, namely Vijay Kumar was performed about two years prior to the occurrence in the year 1993 and there was no issue born out of the said wedlock and the doctors declared that the deceased was not in a position to deliver a child. He, however, has denied the suggestion that he was interested in marrying his son again. He was not accompanying the deceased when she jumped into the river and none of the accused was present at that time. Accused came in vehicles to his house at 3:00 p.m. when he was lying on the bed in a room of his house. The accused came and set his house on fire. He admits that the police has registered a case against him, Vijay Kumar, Mukesh Kumar, Bajji Devi and his other daughters. Police arrested the Vijay Kumar (husband of the deceased) Mukesh Kumar and others at 11:00 a.m. His signatures on the seizure memo was taken by the Police in the Hospital and seizure memo with regard to the charcoal was also prepared in the Hospital. His statement EXPW-1/1 was written by Munshi of the police in the Police Station, but he did not read over its contents to him. The statement was recorded on 15.05.1995 and about the cutting made in the date, he has no 10 CRAA No. 9900002/2009 knowledge when the same has been made i.e. 15.05.1995 as 14.05.1995.
v) PW Mukesh Kumar has said that in May, 1005 in the morning he along with his wife Babli Devi, sister-in-law Padma Devi and niece Parveen Kumar were collecting the wheat crop. He was called by someone and he ran towards him and found that many people gather near the rivulet. Vijay Kumar who is his brother informed him that his wife Kamla Devi jumped into the river and died. People started searching Kamla Devi in the rivulet and Chowkidar of the village was present on spot asking for reporting the matter to the Police. He and Chowkidar thereafter went to Police Station and reported the matter there. Police came on spot in a truck and he was with them. Mela Ram, Sham Lal and Ashok Kumar also boarded the said truck. Police on reaching their residence conducted search. Mela Ram father of Kamla Devi who is an Inspector in Police said that Kamla Devi had been killed and asked him where they had concealed her. Mela Ram said that in case dead body is not found there will be ashes everywhere. Large number of people had gathered there in the house. His father, sister and niece were locked by Mela Ram in the room. Accused Ashok Kumar, Sham Lal, Ajay Kumar Kewal Krishan and Behari Lal brought dried mustard and wheat crop from the roof and put the same inside the house and thereafter set it on fire. Head Constable Mohd. Sarver and Constable Mohan Singh brought his father, sister and niece out of the room after removing iron rods of the window. Vijay Kumar attacked the police party with axe. They suffered damage of about Rs.3.00 lacs 11 CRAA No. 9900002/2009 due to burning of the house. Nothing was recovered from the house. Police registered the FIR and started investigation in the matter. He further stated that all the accused were involved in the occurrence. Jyoti Devi and his niece were locked by accused Mela Ram inside the room. Accused Vijay Kumar was married to deceased about two years back but there was no issue born out of the said wedlock. Her dead body was fished out from the rivulet at 2:30 p.m. Police registered a case against Vijay Kumar for commission of offence punishable under Section 302 RPC. He along with his brother, Sham Lal, Pada Devi, Babli Devi, Bajji Devi were also arrayed as accused in the said case. It is stated that he was arrested prior to 12'O clock by the police on that day. He further stated that he was arrested on that day on 10:00 a.m. and was released on 11:00 a.m. by the Police. His statement was recorded on the said date under section 161 Cr.P.C. between 10:00 a.m. and 11:00 a.m. Report was made to the Police by the Chowkidar but does not know what report was made by him. Report was lodged on 14.05.1995 and his statement was recorded on 23.05.1995 after his arrest. He has denied the suggestion that case has been framed to counter the murder case registered against them.
vi) PW-Bajji Devi has stated that she came to know that her daughter-in-law Kamla Devi is missing from the house and she thought that she might have gone for a bath but accused Vijay Kumar told her that she had not gone for the bath. They went towards the river and saw Chappal and Shawal lying on a stone and 12 CRAA No. 9900002/2009 number of persons had gathered on the spot. Mukesh Kumar went to Police for reporting the matter and dead body was recovered at 3/4 p.m. Accused and their other relatives set the house on fire. At that time, her husband and grand daughter Jyoti and Priyanka were kept inside the house and the house was locked from outside. They were brought out of the house by the Police and their house was completely burnt and injuries were suffered by her husband and grand daughters. House was set on fire at the instigation of SHO, Mela Ram and brother Kewal Krishan. At the time when their house was set on fire accused were accompanied by about 400/500 people. She and her family members are accused in the challan regarding the death of her daughter in law and they were arrested about 3/4 days of the occurrence. She had denied the suggestion that her sons Sham Lal, Vijay Kumar and Mukesh Kumar were arrested by the Police on the date of occurrence. She does not know under what circumstances her daughter-in-law died. The marriage of deceased and her son was solemnized about two years prior to the occurrence and she was issueless. She has denied the suggestion that they had decided to solemnized second marriage of their son. She has also denied the suggestion that the case was framed in order to counter the murder case registered against them.
vii) PW-Babli Devi has stated that on 14.05.1995 in the morning Vijay Kumar came to her and told that his wife Kamla Devi is missing. She and other family members started for her search but could not have traced her. Villagers and their community members also started 13 CRAA No. 9900002/2009 her search. Chappal and Shawal were found lying near the Nallah when they went after hearing noise. Relations of the deceased Kamla Devi also reached there on getting information and they started beating her and her family member. Ladies came back to the house and SHO of Police Station Rajouri took the male members of her family with him and were let free after about two hours and they also came back to her house. On 2:30 p.m. information was received by them that dead body has been recovered from the rivulet whereafter all the accused came to their house. Accused Mela Ram locked her father-in-law in room along with his daughter and daughter of her sister-in-law. Accused brought wheat crop from outside and put the same inside the house and thereafter set the house on fire. Her father-in-law and two female kids were saved by Police. Mela Ram has not been arrayed as an accused in this case. Kewal Krishan was also involved in the occurrence. She and her other family members fled away from the spot to save themselves and due to burning of the house they suffered loss of Rs.2/3 lacs and prior to the occurrence the police had not registered any case against her husband and her elder brother-in-law regarding death of Kamla Devi but case was registered after about ten days of the occurrence. She has denied the suggestion that on the date of occurrence her husband Mukesh Kumar, brother-in-law Vijay Kumar and Padma Devi were taken into custody by the Police at 10:00 a.m. Her father- in-law and other small kids suffered burn injuries and were medially treated. They were brought to Rajouri for Medical treatment. Houses of Poonchi Ram, Kuldeep Raj and Sham Lal are situated near their 14 CRAA No. 9900002/2009 house. They have also witnessed the occurrence. At the time of occurrence, Police was also present their and it was in their presence that their house was set on fire. Her statement was recorded after 10/12 days of the occurrence.
viii) PW Padma Devi has stated that her sister-in-law died because of drowning in the river. Her family members and villagers started for her search in the morning. When she was not found, accused started beating them at the rivulet and thereafter they came back to their house where Police came and conducted search. After the Police completed the search, the police and the accused went to rivulet. Accused and some other 14/15 persons came to their house at 1:30 p.m. when she and daughter of her brother were sleeping inside the house. Her father was also put inside the room after he was lifted from the Verandah and thereafter the house was set on fire. On police reaching on spot they brought out her father and small female kids from the house after breaking the window. Accused reached the rivulet on 7/7:30 a.m. Number of villagers were accompanied them. She also knows about the finding of the Chappal and Shawal and does not know when dead body was recovered. Accused reached rivulet at 8/8:30 a.m. and started beating them. She, her sister-in-law Babli Devi and Raj Rani were present there when accused started beating them. She was also beaten by the people belonging to the village of the accused and on the day of occurrence case of murder was not registered against her, her sister-in-law Babli Devi and her brothers. Her borthers, Vijay Kumar and Mukesh Kumar were 15 CRAA No. 9900002/2009 arrested in murder case at 10:00 a.m. but were at 11:00 a.m. No one from the village was present on spot at the time of occurrence. Her father received burn injuries and kids did not receive any injury. 50 to 60 people helped in extinguishing the fire. Her statement was recorded after 7/8 days of the occurrence in the Police Station when she had gone there. Only accused and two police persons were present on spot at the time of occurrence and none else.
ix) PW-Dr. Gulam Ali Shah has stated that on 15.05.1995 when he was posted as Assistant Surgeon District Hospital Rajouri he examined Foju Ram S/o Kala Ram R/o Partrara Tehsil Rajouri who was brought before him by the Police and found the following injuries:
a. Superficial burn on right forearm extending from elbow to base of fingers with blebs, on Chorseo medical report.
b. Superficial burn on scalp in fronto parietal area with blebs.
In his opinion both the injuries were simple in nature. The certificate is in his hand writing and bears his signatures. It is correct and is exhibited as EXP-M. On cross-examination stated that the duration of injuries has not been recorded by him in the certificate. The patient was brought to him by the police which is mentioned in the certificate.
The burn injuries generally are not self inflicted because they are very painful in nature. The patient has not been seen by him today in the court. That these injuries in ordinary course are not sufficient to cause death.16 CRAA No. 9900002/2009
No further question is asked in re-examination."
7. On the basis of evidence reproduced here-in-above, which was recorded by the trial Court, the trial court after appreciating the same found material contradictions, exaggerations as well as improvements and held that prosecution has miserably failed to prove the allegations against the accused beyond doubt and accordingly dismissed the challan and acquitted the accused.
8. Mr. Bhanu Jasrotia, learned GA appearing for the appellant-State submits that trial Court had wrongly observed that there are contradictions, exaggerations and improvements in the evidence produced by the prosecution. The minor contradictions are bound to appear but such minor contradictions are not sufficient to throw out the case of the prosecution. It is submitted by him that the prosecution by producing the evidence have proved the involvement of the accused in the alleged occurrence of attacking the complainant and setting their house on fire. He submits that evidence produced on record would establish that the wife of accused-
Vijay Kumar committed suicide by jumping into the river and after her dead body was recovered accused along with others went to the house of the complainant-Khoju Ram and locked him along with two female kids inside the room and thereafter set their house on fire. It is stated by him that so far as setting the house on fire is concerned, all the witnesses have corroborated this statement. The evidence further established that Khoju Ram who was locked inside the room when the house was set on fire suffered burn injuries which injuries have also been proved by the medical evidence. It is urged that their being sufficient evidence simply because of 17 CRAA No. 9900002/2009 minor contradictions, same cannot be brushed aside and as such, the trial court, while acquitting the accused has committed wrong. On the basis of evidence the charges have been proved, as such, the order of the trial Court acquitting the accused is required to be set aside and the accused convicted for the offence for which they have been charged.
9. Mr. Dewakar Sharma, learned counsel appearing for the respondents submits that all the witnesses have given a different version as there are material contradictions with regard to the involvement of the accused. The presence of witnesses is also doubtful as it is from the evidence and the statements that in respect of the death of Kamla Devi, FIR was registered under Section 302 RPC against Vijay Kumar and other family members. Witnesses have themselves stated that they were arrested at 10:00 a.m. but were released at 11:00 a.m. Witnesses have also given varied version with regard to the presence of the accused and with regard to the time when dead body was recovered from the rivulet and when occurrence alleged to have been committed by the accused took place.
10. About the presence of the accused and the people a different version has been given by the prosecution. Regarding the setting the house on fire, witnesses have given a different version about how it was burnt. One of the witnesses say that gallon with kerosene oil was brought out of the house with which the house was set on fire. Some of the witnesses say that harvested dried mustard crop was brought from the roof of the house and then put inside and the house was set on fire and some of the witnesses say that it was collected from outside and then the house was put on fire. It is submitted by him that on overall considering the evidence on record, it is 18 CRAA No. 9900002/2009 manifestly clear that there are contradictions with regard to the material facts of the case as statements have been exaggerated and the witnesses have tried to improve their statements. It is urged by him that since the complainant party were involved in the death of Kamla Devi, who was killed by them, an FIR was registered against them under Section 302 RPC. They in order to counter have filed this false complaint against them.
11. I have considered the grounds submitted in the appeal, submissions made by the learned counsel for the parties and have also perused the record on the file and the judgment passed by the learned trial court.
12. Accused have been acquitted after the trial court appreciated the evidence. In respect of investigation of FIR No. 156 of 1995, which was registered against the complainant party for offences punishable under Section 302/201 RPC at the instance of accused party with regard to death of Kamla Devi wife of accused Vijay Kumar. The investigating officer of the said case was Hem Raj. The Police along with some people and the accused party were at the rivulet while the dead body of the Kamla Devi was fished out. When dead body was traced as per the prosecution case, persons started running towards the house of the complainant Khoju Ram and the Police tried to intervene but could not succeed. The statement of witnesses recorded in this case on scrutiny would show that there are contradictions, exaggerations and improvement while recording their statement during the course of the trial. As per the prosecution case, Police Officer, PW-Hira Lal Pandita was present on spot at the time of occurrence. This witness has while speaking about the occurrence said that 19 CRAA No. 9900002/2009 the accused, Vijay Kumar brought a gallon of oil from the house and set the house on fire. He saw him on the Verandah and witnessed him setting the house on fire with the said oil. He in his deposition has said that he saw flames coming out from the back side of the shirt of Khoju Ram. This statement that Khoju Ram suffered burn injuries at the time is not supported by medical evidence as there is nothing mentioned about the said injuries having been found on the back of said Khoju Ram. Had the shirt of Khoju Ram been burning on the back definitely he would have suffered burn injury on his back side but there is no such evidence produced.
13. As per medical report, the burn injuries which were found on his person were of superficial burn on right forearm extending from elbow to base of fingers and another superficial burn on scalp in fronto parietal area.
14. Before considering the appeal on merits, the scope and ambit of provisions of law and the interference of the High Court in an appeal against acquittal is required to be considered.
15. In the case of Babu v. State of Kerala, (2010) 9 SCC 189, Hon'ble the Supreme Court had reiterated the principles to be followed in an appeal against acquittal. In Paragraph 12 to 19, it is observed and held as under:
"12. This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be 20 CRAA No. 9900002/2009 more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219; Shambhoo Missir & Anr. v. State of Bihar (1990) 4 SCC 17; Shailendra Pratap v. State of U.P. (2003) 1 SCC 761; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh v. State of U.P. (2006) 9 SCC 731; State of U.P. v. Ram Veer Singh (2007) 13 SCC 102; S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535;
Arulvelu Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy v. State of A.P. (2009) 16 SCC 98; and Ram Singh v. State of Himachal Pradesh (2010) 2 SCC 445).
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."21 CRAA No. 9900002/2009
14. The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton v. State of Bihar (1970) 2 SCC 450; Sambasivan v. State of Kerala (1998) 5 SCC 412; Bhagwan Singh v. State of M.P. (2002) 4 SCC 85;
and State of Goa v. Sanjay Thakran (2007) 3 SCC 755).
15. In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
"(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double 22 CRAA No. 9900002/2009 presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that:
"20. ....an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."23 CRAA No. 9900002/2009
18. In State of U.P. v. Banne & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further 24 CRAA No. 9900002/2009 that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
16. When the findings of facts recorded by the court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Administration (1984) 4 SCC 635; Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE (1994) Supp.(3) SCC 665; Gaya Din v. Hanuman Prasad (2001) 1 SCC 501; Aruvelu v. State (2009) 10 SCC 206 and Gamini Bal Koteswara Rao V. State of A.P. (2009) 10 SCC 636."
17. In Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436, the Hon'ble Supreme Court had an occasion to consider the scope of section 378 Cr.P.C. and the interference by the trial court in an appeal against acquittal. Honb'le the Supreme Court considered catena of decisions right from 1952 onwards. In paragraph 31 it has been observed and held as under:
"31. An identical question came to be considered before this Court in the case of Umedbhai Jadavbhai (1978) 1 SCC 25 CRAA No. 9900002/2009
228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial Court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial Court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case."
31.1 In the case of Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial Court and held the accused guilty on re-appreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial Court, after satisfy that the order of acquittal passed by the learned trial Court was perverse and suffer from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While 26 CRAA No. 9900002/2009 confirming the order of conviction passed by the High Court, this Court observed in paragraph 8 as under:
"8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well -
considered judgment duly meeting all the contentions raised before it. But then will this non- compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of 27 CRAA No. 9900002/2009 acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case."
31.2 In K. Ramakrishnan Unnjithan v. State of Kerala (199) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to re-appreciate the evidence and record its own conclusion. This Court scrutinized the evidence of the eyewitnesses and opined that reasons adduced by the trial Court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court as manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3 In Atley v. State of U.P. AIR 1995 SC 807, in para 5, this Court observed and held as under:
28 CRAA No. 9900002/2009
"5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In Our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Cr.P.C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary 29 CRAA No. 9900002/2009 conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P., AIR 1953 SC 122. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.
31.4 In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
18. Having gone through the impugned judgment and the order passed by the learned trail court whereby the accused have been acquitted, I do not find that the trial court has committed any error in passing the order of acquittal in respect of the accused. The trial court has given due weightage to the evidence produced before it and had passed the order impugned.
19. The Guidelines which would warrant reversal of an acquittal order passed by the trial court, as enumerated hereinabove, would show that the trial court has dealt with the evidence produced before it and after having properly appreciated passed the order of acquittal. This Court after having considered the entire evidence on record is of the opinion that the finding of the trial court is not perverse. The trial Court has taken into consideration admissible evidence produced before it by the prosecution. 30 CRAA No. 9900002/2009
20. PW-Hira Lal Pandita had said that he did not see Roshan Lal, Padma Devi, Babli Devi, Soma Devi and Mukesh Kumar who are accused in the murder case present on the spot at the time of occurrence. He had deposed that he saw them in the Police Station in the evening. The statement of PW-Hira Lal Pandita makes the presence of PW Padma Devi, Babli Devi and Mukesh Kumar, who have been cited and produced as eye witnesses of the occurrence, doubtful. Had they been present on the spot and had these witnesses witnessed it, he would have definitely deposed about presence of these witnesses on the spot of occurrence. All the witnesses who have been cited in this case are accused in FIR No. 156 of 1995 in respect of murder of Kamla Devi registered at the instance of respondents. In the said case, the allegation is that they had killed Kamla Devi.
21. PW-Mohan Singh, who is a police personnel had again given a different version with regard to the prosecution case by deposing that house was set on fire by the accused with bundles of mustard crop which was lying in the house of the complainant-Khoju Ram at the time of occurrence and he heard cry of old man that there is flame on his back. Medical report does not support the said alleged burn injury on the back side of the complainant. Though having stated that the accused are known to him for the last 4/5 years, he could not identify them in court and he identified Sanjay Kumar as Vijay Kumar and could also not disclose name of accused Sham Lal when he was asked about the same during the trial by the counsel for defence. Having stated that the accused brought bundles of mustard 31 CRAA No. 9900002/2009 crop and then put the house on fire, he, however, on cross examination stated that when he reached the spot, the house was already burning, his statement that the bundles of mustard crop was brought and the house was set on fire, thus, becomes doubtful.
22. PW-Khoju Ram has named Ajay Kumar, Sanjay Kumar and Vijay Kumar who set his house on fire. He has also given a contradictory version by stating that relations of deceased Kamla Devi remained in the house and only some of them went to the rivulet and the persons who remained in his residence, they raised hue and cry and set the house on fire after locking him inside the room. He has stated that his head, arms and upper side of eyelids were burnt, but the injury certificate issued by the doctor shows injury on the right forearm. No burn injury is shown on the eyelids. The time of occurrence as per him was 3:00 p.m. when the accused came boarded in vehicles and reached his residence which is contrary to the prosecution case. According to the prosecution, after fishing out the dead body, the accused ran towards the house of the complainant, they were followed by the Police, but they set the house of the complainant on fire. The prosecution has not made any reference to the accused having boarded the vehicle. He has also made the presence of Mukesh Kumar doubtful as according to him Vijay Kumar, Mukesh Kumar and others were arrested by the Police at 11:00 a.m. and were taken to the Police Station. He has also stated that the statement which was made by him to the Police vide EXPW- 1, on the basis of which, FIR was lodged, was not read over to him. There is cutting in the statement but he is not aware about the cutting made as to the date of recording of his statement. According to him, he made 32 CRAA No. 9900002/2009 statement on 15.05.1995 but as per the statement EXPW-1, it appears to have been recorded on 14.05.1995.
23. PW-Mukesh Kumar had also given a different statement. He has stated that Mela Ram-accused locked his father, sister and niece in a room and accused Ashok Kumar, Sham Lal, Ajay Kumar, Kewal Krishan and Behari Lal brought dried mustard and wheat crop from the roof of the house and by using the same, set their house on fire, in which, his daughter and niece suffered burn injuries. But as per the prosecution case, it is no where mentioned or alleged that daughter-in-law and niece had suffered injuries. He says that he was arrested at 10:00 a.m. but was released at 11:00 a.m. He had been arrested in a case of murder but it has not been shown by him that how he was released within one hour of his arrest. According to him accused-Vijay Kumar attacked Police party with an axe but the witnesses who are police personnel whose statements have been recorded have not stated that they were attacked. Neither Hira Lal Pandita nor SGC-Mohan Singh have deposed so. His brother, Vijay Kumar, Sham Lal, Padma Devi, Babli Devi, and Bajji Devi, according to him, were accused in murder case and being so, their presence on spot becomes doubtful.
24. As per PW Bajji Devi, the house was set on fire on the instigation of Mela Ram and Kewal Krishan. According to her, she and other family members were arrested by the Police after three days of the occurrence. PW-Babli Devi says that neighbourers Poonchi Ram, Kuldip Raj, Kali Dass, Jagat Ram and others came on the spot and witnessed occurrence, but 33 CRAA No. 9900002/2009 the said statement of Babli Devi is contradicted by her by stating that none from the neighborhood came on spot.
25. Witnesses who have been produced in this case mostly are related witnesses and these witnesses have given version which is contrary to each other on most of the material facts. A relative witness ordinarily cannot be discarded and can be relied upon if it inspires confidence. The statement of such witnesses is required to be weighed very carefully and discrepancies in the statements of such witnesses are required to be taken into consideration. The discrepancies or material contradictions in the statement of witnesses, who claim to have witnessed the occurrence and who are related and interested witnesses would definitely make their statements not trustworthy and will also make their presence doubtful on the spot of occurrence.
26. Had such witnesses been present on the spot there is no chance of such witnesses having contradicted on material facts. Discussion made hereinabove would show that the witnesses who are related to the complainant are/or accused in case of death of Kamla Devi have made contradictions on material facts. Their statements being contradictory on material facts make the presence of some of the witnesses doubtful on spot of occurrence. The witnesses as per their own showing were arrested in FIR registered with regard to the murder of Kamla Devi. If they were so, how they were present on spot at the time when the occurrence took place in this case. The conclusion of trial court is based upon proper evaluation and appreciation of evidence produced. On overall appreciation and 34 CRAA No. 9900002/2009 evaluation of the evidence produced, there can be no other conclusion except one that prosecution has failed to prove the charges against the accused beyond reasonable doubt. Nothing has been shown by the appellant, while arguing and referring to the material on record that any material evidence has been left or ignored or not appreciated or evidence not reliable has been relied upon. The law referred above by the Hon'ble Supreme Court wherein the scope of section 378 Cr.P.C. and the interference by the High Court in an appeal has been considered makes it clear that the order of acquittal in this case is not one which could be reversed or with which this Court can interfere.
27. For the reasons stated above, I do not find any reason or ground to hold that the order of acquittal is perverse and, as such, the order passed by the trial Court is upheld and the appeal is dismissed.
(Vinod Chatterji Koul) Judge Jammu 29.07.2021 Paramjeet.
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No