Jammu & Kashmir High Court
Baba Kali Dass Bharati S/O Kirpa Ram vs State Through Public Prosecutor on 23 August, 2023
Bench: Sanjeev Kumar, Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 49/2011
c/w
CONF No. 14/2011
Reserved on: 18.07. 2023
Pronounced on: 23.08.2023
1. Baba Kali Dass Bharati S/o Kirpa Ram. ... Appellant(s)
2. Rekha Kumari W/o Raj Kumar.
[
Through: - Sh. Ravi Abrol, Advocate.
Sh. Mohsin Bhat, Advocate
V/s
State through Public Prosecutor, ... Respondent(s)
Principal Session Court Jammu
Through: -Sh. Pawan Dev Singh Dy. AG
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per Mohan Lal-J
1. Appellants have assailed the judgment of conviction dated 15.11.2011 and order of sentence dated 18.11.2011 rendered by the court of Ld. Sessions Judge Jammu in case titled State v. Baba Kali Dass Bharati & Anr' bearing File No. 12/Sessions, whereby, they have been convicted in FIR No. 27/2003 of Police Station R.S. Pura (Jammu) for commission of offence punishable u/s 302/34 RPC and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10000/- each.
2. Aggrieved of and dissatisfied with the impugned Judgment of conviction, appellants have assailed it‟s legality, propriety and correctness and have sought it‟s setting aside on the following grounds:
(i) that the court below has passed the impugned judgment and sentence on the surmises and conjectures which is foreign to the principal of criminal law, the prosecution was under strict liability to prove guilty of beyond doubt, the court below was obliged to analyse and appreciate the evidence to reach to a conclusion that it is the accused only who has committed offence in question, but in the case in hand prosecution has failed to prove the offence against the appellants but despite that the trial court has rendered conviction against the accused/appellants;
(ii) that the trial Court has also not appreciated rightly the fact that firstly the eye witnesses have not supported the prosecution at all, secondly the recoveries and the seizure memos were not proved by any independent witnesses and lastly, the statement of the investigating officer is in contradiction to all the evidence which has come on record, there is complete 2 CRA 49/2011 misapplication of judicial mind by the court below whereby the appellants have been seriously prejudiced by the manner in which they have been held guilty and convicted;
(iii)that as per prosecution case the occurrence is of 14.02.2003 whereas statements of PWs Brij Nath Parihar, Khushwant Singh, Faquir Singh, Chhaju Ram, Kulbir Singh & Davinder Singh who are witnesses to alleged seizure memos have stated that the occurrence is of 15.02.2003, so their statements could not be believed at all;
(iv) that the statement of PW-7 Yash Pal (eyewitness) cannot be relied upon for the reasons that he is not aware of date, time and year of incident , as per his deposition accused No.2 Rekha Kumari hit the deceased with axe which is contrary to the prosecution story and the investigation conducted, the said witness has stated that he has not made any statement before the police and moreso he has stated that it was daylight when he went to shamshan ghat but the incident is of night time, so the evidence of PW-7 Yash Pal cannot be relied upon therefore there is no evidence to connect the appellants with commission of crime attributed to them;
(v) that the recoveries made during the investigations cannot be believed as PW-12 Doctor Balkar Choudhary (witness to post-
mortem report) has made statement in the court that the weapon shown in the court though resemble with the weapon shown to him during investigation, but it is not the same "spade" as the same does not bear his signature which he subscribed when the same was shown to him during investigation for opinion, moreover it has not been proved by the prosecution that which injury was specifically caused by particular accused and which injury specifically was sufficient to cause death in the ordinary course of nature;
3. Ld. Counsels for appellants have reiterated the same arguments which form the edifice of the memo of appeal, and have vehemently sought the reversal/setting aside the impugned judgment of conviction and sentence.
4. Ld. Dy. AG has supported the impugned judgment and has sought it‟s confirmation by canvassing arguments, that the trial court has rightly appreciated the evidence putforth by the prosecution and has rightly come to the conclusion that the appellants are the author of the crime attributed against them for the murder of deceased Baldev Singh.
5. We have heard Ld. Counsel for appellants & Ld. Dy. AG for respondent. We have also perused the impugned judgment and record of the trial court. The case of prosecution has been tried to be proved by (i) Direct Evidence of eyewitnesses PW-7 Yash Pal & PW-9 Jagat Singh, (ii) Circumstantial Evidence of PW-1 Brij Nath Parihar (the then ASI, P/S R.S. Pura), PW-2 Khushwant Singh (policeman who seized the dead body of deceased and prepared 3 CRA 49/2011 seizure memos), PW-3 Faquir Singh (real b/o deceased Baldev Singh, witness to disclosure statement of accused and seizure of weapon of offence stick and pickaxe), PW-4 Chajju Ram (witness to seizure of plain dust, blood stained dust & scooter No. JK02K-5339), PW-5 Kulbir Singh (witness to receipt of dead body), PW-6 Davinder Singh (witness to receipt of dead body), PW-8 Om Parkash (hostile), PW-9 Jagat Singh (hostile eyewitness), PW-10 Sat Pal (Naib Tehsildar), PW-11 Bishambar Singh (Patwari Halqa), PW-13 Sunit Koul (Assistant Scientific Officer FSL Jammu) & PW-14 Raval Singh Choudhary (I/O) & (iii) Medical Evidence of PW-12 Dr. Balkar Choudhary.
6. Appellants preferred this criminal conviction appeal from jail which was registered as criminal appeal No. 49/2011, whereas, the Ld. Sessions Judge Jammu made reference to this court bearing No. 14/2011. In terms of order of this court dated 02.04.2012, the criminal appeal as well confirmation was admitted. Further vide order of this court dated 27.04.2017 appellants/convict who were already in custody for over 14 years, their sentence was suspended and they were granted bails. The appeal as well as the reference shall be disposed of by this judgment.
7. To prove the case against appellants/convict, prosecution has led oral as well as documentary evidence. Prosecution has examined all the 14 witnesses listed in the charge sheet. The prosecution examined oral witnesses as under:-
PW Name Role
1. Brij Nath Parihar (ASI) Witness received information in P/S R.S.Pura
2. Khushwant Singh Seized dead body of deceased and (Policeman) prepared seizure memos.
3. Faquir Singh (real b/o Witness to disclosure statement of deceased Baldev Singh) accused and recovery of weapon of offence stick and pickaxe.
4. Chajju Ram Witness to seizure of plain dust, blood stained dust & scooter No. JK02K-
5339.
5. Kulbir Singh Witness to receipt of dead body.
6. Davinder Singh Witness to receipt of dead body.
4 CRA 49/20117. Yash Pal Eyewitness.
8. Om Parkash Circumstantial witness (Hostile).
9. Jagat Singh Hostile eyewitness.
10. Sat Pal Naib Tehsildar.
11. Bishambar Singh Patwari Halqa.
12. Dr. Balkar Choudhary Witness of post-mortem report.
13. Sunit Koul Asstt. Scientific Officer FSL Jammu.
14. Raval Singh Choudhary Investigating officer (I/O).
8. Before coming to the conclusion, whether prosecution has successfully substantiated charges against appellants/convict beyond hilt, we find it pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under:-
PW-1 Brij Nath Parihar (witness who received information in P/S R.S.Pura, witness to seizure of dead body of deceased) has deposed that in the month of February 2003 he was posted as ASI Police Station R.S. Pura. Accused present in the Court are known to him. On 15.03.2003 at 10 pm he received information that in Shamshan Ghat Sadian R.S. Pura one dead body of Baldev Singh is lying. On this SHO R.S. Pura alongwith other police constables reached on spot and found dead body lying in one cattle shed which was seized and seizure memo EXPW-BN was prepared on which he appended his signature. In cross examination has stated that Police Station is located at a distance of half kilometer away from the place of occurrence. He has no knowledge how investigating officer received information but somebody must have informed him. It was 10 pm they went on spot alongwith 4/5 persons in their Gypsy vehicle whose number is not known to him. They reached cremation ground at 10/10.30 pm. Other than police, 2/3 civilians were present there but he cannot tell their names. Where dead body was lying there 200/300 yards away houses and shops are located. Dead body was recovered from shed where accused were putting up. One cow was also fastened there near dead body. He cannot say what else was there from where dead body was recovered. Dead body was lying near door. He only heard that dead body was lying in a room. Injuries were sustained on the face but he cannot say of injuries on arm or legs. The blood was lying on the ground where the dead body was lying but he cannot say how much blood was there. He went inside the room alongwith SHO but cannot say on which side the door opens of that room. SHO opened the door. There are two rooms. On the place of occurrence no other room is located. He cannot say what proceedings were conducted on spot. When they went on spot accused Kali Dass was alongwith them because he was arrested from there. Seizure of the dead body was conducted in 5 CRA 49/2011 his presence. He signed two papers of the seizure memos and signed the same on 25th Feb. 2003. Again said on 15.2.2003 he signed those papers at 10.30 pm. He cannot say whether any civilian was called at that time or not. There was no boundary wall around the place of occurrence. It was pitch dark and could not see boundary wall. Dead body was evacuated from the place of occurrence on the same day and kept in the mortuary. They learnt from relatives firstly that dead body is of Baldev Singh. He does not remember whether the accused were arrested on the same day because he was in the hospital alongwith dead body. Police recorded his statement and he signed the document in English.
PW-2 Khushwant Singh (witness to seizure of dead body and preparation of seizure memo) has stated that in the year 2003 he was posted in Police Station R.S. Pura alongwith SHO Raval Choudhary. On 15.2.2003 at 10 pm they went to cremation ground Rangpur Sadian and seized dead body, prepared seizure memo ExPWBN. In cross-examination has stated that he signed the seizure memo on the day of occurrence at 11.45pm and reached police station thereafter, again stated that SHO Raval Choudhary SI and ASI were also accompany them. They seized the dead body. Number of other persons had assembled there. Dead body was recovered from cattle shed but he cannot say whether cattle were there or not. None was arrested on the day when documents were prepared.
PW-3 Faqir Singh (real b/o deceased Baldev Singh, witness to disclosure statements of accused, recovery and seizure of stick and pickaxe) has stated that accused present in the court are known to him only from the day of occurrence. Deceased Baldev Singh was his real brother. On 14.02.2003 at 10 police came to him and enquired about the scooter of the deceased. He narrated that scooter belongs to his younger brother. Thereafter they went to police station where dead body was present in the hospital and they identified the same. He was told that the dead body was recovered from cremation ground. He asked what has happened to the deceased. He saw there were cuts on the neck of the deceased and lot of other injuries. His post mortem was conducted in the hospital. Seizure memos EXPWCR, ExPWCR1 to ExPWCR/6 were prepared, he has heard contents of disclosure statement which are true and correct. The disclosure statement was made by the accused when they were being investigated. Accused had told that they can get the weapon recovered. Thereafter they went to the cremation ground and recovered stick and pickaxe. The contents of disclosure statement of accused ExPWFS, ExPWFS/1 have been heard by him. He identifies his signature. ExPWCR/7 is seizure memo and recovery of weapon of offence on which he has signed, the contents are true and correct, documents ExPWCR/1 to ExPWCR/9 are true and correct. He signed the same. In cross-examination, has stated that disclosure statement dated 15/18 has also been signed by Jaswant Singh inspector, again stated that on 15.2.2003 scooter aforesaid was seized. Chajju Ram had accompanied him to the police station and on spot at cremation 6 CRA 49/2011 ground also. Chajju Ram accompanied him up to the hospital.
On 18.2.2003 he went to the police and lot of other persons were also accompanied them. He told the police that articles of the deceased lying there and other 5/7 civilian were also present there. He cannot say that at the time of preparing of memos of seizure, disclosure other civilians were present or not. He does not remember the time, month and date on which the memos were prepared and he signed the same. The contents of memos were read over to him and thereafter he signed. He saw the accused first time in the police station and has been seeing today in the court. Police had only told him that accused have committed murder of his brother but he has no personal knowledge of the same. He is studying in class 8th. There was no enmity of the accused with the deceased. He alongwith his brother Chajju Ram accompanied by other persons went on spot and police had told that murder has taken place. Scooter was also seized. He has no other knowledge of the same. Cremation ground is located near two rooms. He has no knowledge about the boundary wall. The accused had admitted that they have killed the deceased near cremation ground. There are houses and shops located near the place of cremation. On 18th he went to the police station alongwith 3/4 persons. Police recorded his statement. Thereafter no other statement was recorded; house of deceased is located adjacent to his house.
PW-4 Chajju Ram (witness to seizure of plain & blood stained dust & scooter No JK02K-5339) has deposed, that the accused present in Court are known to him. On 15.2.2003 police informed him and he reached on the cremation ground R.S. Pura. Police prepared seizure memo of plain dust and blood stained dust and seized scooter No. JK02K-5339 on 15.2.2003. Seizure memo regarding trouser dated 15.2.2003 was prepared. He has heard seizure memos Ex.PWCR, Ex.PWCR/1, ExPWCR/2, ExPWCR/3, ExPWCR/4, EXPWCR/5 and ExPWCR/6 dated 18.2.2003 which contain his signature and their contents are true and correct. Document ExPWCR/7, EXPWCR/8, ExPWCR/9 and ExPWCR/10 are also true and correct. He has signed the same and are true and correct. All the documents were prepared by police they were sealed and were taken away by the police. In cross- examination has deposed that his all brothers are putting up separately. Jagdev and Baldev are putting up together. Baldev Singh deceased was married 12 years before his death. Deceased had children also. He was not drunkard. Police called him on 15.2.2003 at 9 pm by Choudhary Inspector that one person is lying at cremation ground and is to be identified. He alongwith few persons went to cremation ground and identified his brother. Thereafter they went to hospital alongwith Balak Ram, Mohan Singh, Kulbir Singh. Police station is located at a distance of 4/5 kms away from their house. Police recorded his statement in the morning and enquired from him and after passing ten minutes in the police station they went to the hospital where lot of persons had assembled and saw the dead body of the deceased, remained there for half an hour and thereafter handed over dead body to 7 CRA 49/2011 them. The dead body was brought at home on 15.2.2003 and it‟s last rites were performed. At that time when police called them there were only 5/7 persons. From there they went to the cremation ground which is located at a distance of 1/1/½ km. There is no boundary wall erected therein around the cremation ground. Cremation ground is 4/5 kanals of land. Police seized plain dust as well as blood stained dust but he cannot say to whom ring was handed over. The shirt and jacket were recovered in his presence on 18.2.2003. Again said it was sealed on 18.2.2003. He does not remember that how many seizure memos he had signed. The accused made disclosure in his presence but he does not remember after how many days, but it may be one or two days after. At the time of disclosure statement by the accused, Faqir Singh was also accompanying him alongwith other persons. There were 10/20 persons were present in the police station when memos were prepared, but he does not remember the date and day when police obtained his signature. The memos were signed till Faqir Singh as well as Kulbir Singh signed them. On 15.2.2003 police inspector alongwith his brother went to the hospital. Accused were arrested there and then.
PW-5 Kulbir Singh (witness to receipt of dead body) has stated that accused are known to him. Deceased was his uncle. On 15.2.2003 he died. He received message from somebody that dead body is lying in the hospital. He alongwith other persons went to the police station from there they went to hospital. Postmortem was conducted and dead body was handed over for last rites. Police prepared ExPWDS which he signed and seized articles. In cross-examination has stated that he has no knowledge of the occurrence. Seizure memo was signed by some other person but he has no knowledge who else has signed. He does not know Urdu. He received dead body and performed last rites. He was accompanied by 5/6 other persons also. He has no knowledge of the occurrence.
PW-6 Davinder Singh (witness to receipt of dead body) has stated that in the year 2003 he had come on annual leave at home. Accused present in the court are known to him. On 15.2.2003 they started searching deceased thereafter went to police station and SHO told them to go to hospital R.S. Pura where dead body of the deceased was lying there. They identified and post mortem of the deceased was conducted. Receipt of the dead body ExPWDS has been signed by him and police seized the dead body ExPWDS/1, both are signed by him. Police recorded his statement. His statement was recorded in the court and the same statement he is making today. In cross-examination has stated that they started from their house at 7.30 am and reached hospital. Seizure memo of clothes was prepared by police which he signed. Deceased Baldev Singh was his uncle and Jagdev also signed the same. He has no personal knowledge of the occurrence. PW-7 Yashpal (eye wintess) has deposed, that accused present in the Court are known to him whose names are Baba Kali Das & Rekha. Long-long back, in his presence accused 8 CRA 49/2011 Kali Dass had hit Baldev with iron Kaie, while accused Rekha had hit the deceased with axe. This incident had occurred near Nanke Rangpur cremation ground. At that time, he had gone to the Bawa i.e. accused Kali Dass for getting flour. After killing Baldev, accused kept him in the cremation ground. Bawa accused was trying to kill him, but he escaped towards Piranpind. In cross-examination has deposed, that he does not take any medicine. In his house his parents are living. He does not remember year and date of occurrence. Regarding the occurrence, Police had not recorded his statement. Long-long back he had narrated the occurrence to police. Of and on he used to visit Bawa for getting flour. Accused live in a village which is at for a of a distance from cremation ground. On the day of occurrence also he during noon time had gone at cremation ground to meet Bawa. There is one shop of karyana near cremation ground. He does not know the name of father of deceased Baldev. At the time of occurrence there was sunlight. Baldev did not do any work, however he used to visit there.
PW-8 Om Parkash (circumstantial witness) has stated that accused present in the court are known to him. Police had enquired from him. Baldev Singh was in the army. He was together with him in the army. Deceased retired last year. He is putting up 8/9 km away from his house. His house is located near the cremation ground at a distance of 3 km. He did not participate in the death of deceased. At the request of PP the witness was declared hostile and cross examined. In cross- examination has stated that his land is located near cremation ground in village Sidian. He does not remember the khasra number of his land orally. He has sown Barseen in his land. Deceased was in his Batalian whey they were serving together. He has no knowledge how deceased had died. SHO enquired from him but he did not tell police anything that he has land at Rangpur and he saw the deceased there and on hearing noise scuffle between them and hearing voice of lady came on spot. He has not made any such statement to the police. He has been extending visit to the house of deceased of and on, but he did not enquire from anybody how deceased had died. Deceased was his friend and he has nothing to take from the accused. PW-9 Jagat Singh (eye witness) has deposed, that accused present in the court are known to him. Deceased Baldev Singh is not known to him. He has knowledge that accused have been arrested in the murder of deceased. He alongwith police went on the cremation ground on the second day because his shop is located near cremation ground. From his house, place of occurrence is located. Accused were investigated in his presence. He was also standing there. Deceased Baldev Singh was going to have meal and told him that he will come back after having his meal. Thereafter he went to his shop. He has no knowledge when murder had taken place. He has no knowledge of the occurrence. At the request of PP the witness was declared hostile and cross examined. In cross- examination has stated that on the day murder had taken place he reached at his shop at 11:30/12pm. It is incorrect that he heard noise and reached on the cremation ground. He has not 9 CRA 49/2011 made such statement to the police. The fact is that he has no knowledge of the occurrence. His statement under Section 161 CrPC recorded by the police to the extent that he heard noise and went to the cremation ground and saw that Kali Dass was armed with Kehi and Rekha Kumari with stick and both were beating Baldev Singh, at the time when Baldev Singh was there on the cremation ground alongwith his cattle, on seeing him accused ran away from there, is incorrect. He has no knowledge where deceased Baldev Singh was putting up. He has no knowledge who is husband of accused Rekha Kumari. He had seen Rekha Kumari at the cremation ground 3/4 days prior to the occurrence and has learnt that she is looking after Bawa Kali Dass. He has no knowledge about it whether she was putting up with Bawa Kali Dass or not. This is also incorrect that accused had altercation with deceased. PW-10 Sat Pal (Naib Tehsildar, witness regarding re-sealing of packets) has stated that he was posted as Naib Tehsildar. On 20.3.2003 police produced packets A, B, C, E F, G, H and I which had resealed and issued certificate ExPWSP. In cross- examination has stated, that packets were separate which he resealed, but he did not see packets after opening the same, but he resealed the same. Seal was in the shape of ring which he has not seen in the court today. The articles were resealed without the order of the court. There is nothing mentioned in ExPWSP that one order of the Judicial Magistrate was produced before him for re-sealing the same dated 13.3.2003. There was nothing in the packet that what kind of seal was put by the police.
PW- 11 Bishamberdev Singh (Patwari Halqa) has stated that on 29.3.2003 he was posted as Patwari and prepared ExPWBS at the request of police.
PW-12 Dr. Balkar Choudhary has conducted the postmortem of deceased Baldev Singh and has deposed before the trial court in the following manner:-
"Stated that on 15.2.2003 he was posted as Field Demonstrator in SDH R.S. Pura and on that day at 11:15 am he conducted post mortem examination on the body of Baldev Singh S/o Sant Ram R/o Barsalpur Tehsil R S Pura. The dead body was identified by Jagdish Singh and Dalbir Singh (brother and nephew of the deceased). On conducting the post mortem examination he observed as under:
External:
1. Incised wound on right frontal region (ear portion) of head 4" x 1/3".
2. Incised wound on front of skull at hairy margin above forehead 3" x 1/3".
3. Incised wound on right temporal region 201/2" x 1/3".
4. Incised wound on right temporal region below 3rd 2" x 1/3".
5. Incised wound on right parietal region just above 3 rd and 4th injury.
6. Incised wound on right eye mideal aspect nasal border 1"
x ½".
7, Lacerated would left temporal region 4" x 1".
10 CRA 49/20118. Lacerated would occipital region left side 2" x 1"
9. Multiple small lacerated would on left leg frontal region four in number of 2‟ x 1", 1", 1" x 1", 1" x ½" and 1‟ x ½"
respectively.
10. Multiple bruises on front of right leg.
11. One abrasion at right knee.
12. Bruises right eye with swelling.
Internal:
1. Left temporal bone fractured.
2. Bleeding in left cerebral hemisphere and left temporal gyrus and sulcus.
Viscera of the dead body was taken and sent for chemical analysis to FSL, Jammu and as per the report of FSL no poison was detected.
Opinion:
In my opinion the deceased Baldev Singh S/o Sant Ram had died due to cardio pulmonary arrest which was caused due to extensive hemorrhage. The post mortem report on the file is in my handwriting, bears my seal and signature and is correct. It is marked as EXPW-BC. On 20.3.2003 SHO Police Station R.S. Pura produced two weapons of offence "spade" and "lathi" for my opinion with regard to the injuries sustained by the deceased; my opinion is also on the file, which is in my handwriting bears my signatures. It is marked as EXPW- BC/1. Lathi and spade are shown to me in the court today. Lathi bears my signatures and is same which was produced before me by the SHO P/S R.S. Pura for my opinion; spade shown to me in the court resembles the spade which was produced before me by the SHO, though I had put my signatures on the spade, but today those signatures are not visible anywhere on the spade. On 9.4.2003 certain quarries were made by the SHO Police Station R.S. Pura, I replied those quarries; my reply to the quarries is on the file; it is in my handwriting and bears my signatures; it is correct and is marked as EXPW-BC/2. In cross-examination he has stated that post mortem was conducted on 15.02.2003 whereas the post mortem report was issued by him on 9.4.2003; he do not remember whether the weapon of offence were produced before him in sealed condition or otherwise; the weapons were produced by the SHO R.S. Pura before him in presence of Naib Tehsildar Satpal; there was no other person present except the persons mentioned by him, no permission was required for examination of the weapon of offence; he has not mentioned in his certificate whether the weapon of offence were stained with blood or not, at the time of examination by him".
PW-13 Sunit Koul (Asstt. Scientific Officer, FSL Jammu) has stated that in April 2000 he was posted as Incharge Scientific Assistant Forensic Science Lab oratory Jammu. Viscera in connection with case of Baldev Singh son of Sant Singh R/o Baralpur Tehsil R.S. Pura Distt. Jammu was received in the FSL Jammu vide letter No. BMO/R/1857 dated 17.2.2003 through SGCT Kasturi Lal of P.S R S Purs, the exhibit was found sealed with four seals intact, one sealed packet enclosed 11 CRA 49/2011 within cloth bearing four intact seals; on opening, it was found to contain two packet marked as „A‟ and „B‟ by him. Packet marked „A‟ was said to contain stomach and its contents, which were collectively given as exhibit no. S-57/2003 by him. Packet „B‟ was found to contain small glass vial said to contain blood, which has given as exhibit no. S-58/2003 by him. The exhibits were subjected to various chemical and chromatographic examination and the following result was arrived at as under:
"No poison was detected in the said exhibits."
The certificate lying on the file has been issued by him and has been countersigned by Dr. Jagdish Singh, Assistant Director, FSL, Jammu whose signatures has also identified. (Note the certificate is marked as exhibit P-SK).
PW-14 Raval Singh Choudhary (Investigating Officer, I/O) has deposed, that accused present in the court are known to him. He had investigated the case FIR No. 27/2003 under sections 302/34 RPC when he was posted as SHO R S Pura. He registered the case, prepared site plan, recorded statements of various prosecution witnesses, seized dead body of deceased lying in a room, prepared documents Ext.P-M/1, seized vehicle No. JK02K-5339 of the deceased, prepared seizure memos ExPWCR, ExPWCR/1, ExPWCR/2, ExPWCR/3, ExPWCR/4, ExPWDS/1, ExPWDS/1, ExPWF/8, ExPWCR/7, ExPWCR/8 and ExPWCR/9; he re-sealed packets and produced before Executive Magistrate and thereafter sent it for FSL examination. From his investigation it is emanated that the deceased Baldev Singh was killed at cremation ground and in a room. Deceased was resident of R S Pura. He had an evil eye over accused no.2 and the occurrence took place in the cremation ground. Deceased was showing currency notes to Rekha Devi which got infuriated the accused. Both the accused attacked on him and killed him. Finally case was proved against both the accused under Section 302 RPC. In cross- examination has deposed, that he received information from reliable source at 10.20 pm. He does not remember whether the information was received by him by telephone or not. He registered case thereafter and went to cremation ground from where he received information. He opened the door of the room where the room of accused is located adjacent to it. Accused have cattle shed and the dead body was lying there. He does not remember whether any cattle were inside the shed or not. Accused were present there at that time. Marginal witnesses were also present there. He prepared all the documents including disclosure statement and had cited civil witnesses who had seen the accused making disclosure statement, they are Faqir Singh and Chajju Ram and they were also present at the cremation ground. Chajju Ram and Baldev are putting up at a distance of 2/3 km from the cremation ground. There is a locality near and around the place of occurrence but he did not call anybody from there. The seizure memo was affected after recording statement of prosecution witnesses under sec. 161 Cr.P.C. Deceased shows Rs.100/- to Rekha Devi thereafter occurrence took place. He does not remember who had kept the cattle inside that cattle shed. He 12 CRA 49/2011 had seized the clothes during the investigation and sent it for FSL examination. He had received report of FSL. Articles were sent by Dy. SP and thereafter re-sealed by Naib Tehsildar on 20.3.2003.
9. It is pertinent to mention here, that the prosecution in a bid to prove charges against appellants/convict, has examined all the total 14 prosecution witnesses. The allegations against appellants/convict are, that on 14.02.2003 at 10.30pm police of Police Station R.S. Pura (Jammu) received information from reliable source that during evening time at 10pm one person namely Baldev Singh S/O Sant Ram at Shamshan Ghat has been killed by Baba Kali Dass & Rekha Kumari at Rangpur Sidian on the base of old enmity in furtherance of their common intention to do away with the life of deceased, and they have inflicted injuries on the deceased with stick and pickaxe, deceased has sustained grievous injuries on all parts of body and dead body is lying on spot. On the basis of aforesaid information case FIR No. 27/2003 was registered in Police Station R.S. Pura (Jammu) under Section 302/34 RPC against appellants/convicts and the investigation culminated in production of charge sheet against appellants/convict before the trial court.
10. PW-7 Yash Pal & PW-9 Jagat Singh are eye witnesses to the occurrence. PW-7 Yash Pal (eye witness) in his deposition in examination-in-chief before the trial court has categorically putforth evidence that in his presence appellant No.1 Kali Dass hit deceased Baldev Singh with iron Kaie, while appellant No.2 Rekha hit the deceased with axe, and the incident occurred near Nanke Rangpur Cremation Ground. In his cross-examination he has specifically stated, that at the time of occurrence there was sunlight. The depositions of PW-1 Brij Nath Parihar (ASI), PW-2 Khushwant Singh (witness to seizure of dead body), PW-9 Jagat Singh (eye witness hostile) & PW-14 Raval Singh Choudhary (I/O) before the trial court in unambiguous terms demonstrate that the time of occurrence has been narrated by these witnesses as 10pm/10.20pm meaning thereby, that the occurrence has occurred during the night time of 14.02.2003. PW-9 Jagat Singh is another eye witness who has denied the knowledge of occurrence and has been declared hostile by the prosecution. Even in his cross-examination he has withstood his deposition made in examination-in-chief that his 13 CRA 49/2011 statement recorded by the I/O u/s 161 Cr.pc is incorrect to the extent, that he heard noise and went to the cremation ground and saw that Kali Dass was armed with Kaie and Rekha Kumari with stick and both of them were beating deceased Baldev Singh who was on the cremation ground alongwith his cattle and on seeing him accused ran away from there. Evidence of eye witness PW-7 Yash Pal does not find any corroboration from the evidence of eye witness PW-9 Jagat Singh. Moreso PW-7 Yash Pal in his cross-examination has taken huge summersault by deposing that at the time of occurrence there was sunlight which is totally contradictory to the prosecution story. Evidence of eye whiteness PW-7 Yash Pal & PW-9 Jagat Singh suffer from glaring contradictions which goes to the root of the case and demolish the very edifice of the prosecution story/allegations against the appellants, leading to an irresistible conclusion that the presence of eye witnesses on the scene of crime is doubtful. Evidence of eye witness PWs 7 & 9 namely Yash Pal & Jagat Singh is therefore, unworthy of reliance, discarded and rejected.
11. PW-3 Faquir Singh & PW-4 Chajju Ram are real brothers of deceased Baldev Singh and are witnesses to the disclosure statement of accused and recovery/seizure of weapon of offence viz; stick and pickaxe and seizure of blood stained soil. Both these witnesses in their examination-in-chief have stated that they identify their signatures on disclosure statement of accused EXPWFS, EXPWFS1 and on recovery memos EXPWCR/7 & EXPWCR/1 to EXPWCR/9 and admit their contents as true and correct, but in cross-examination they have specifically stated that there were 10/20 persons present in the police station when the said memos were prepared and moreso they don‟t remember the date and day when police obtained their signatures. It is apt to reiterate here, that at the time of recording of disclosure statement of accused and recovery of weapon of offence at the instance of accused, the said proceedings were witnessed by as many as 10 to 20 independent witnesses. I/O has failed to furnish any plausible explanation as to why the independent witnesses were not associated with the proceedings of recording of disclosure statement of accused and recovery and seizure of weapon of offence, as both the witnesses PW-3 Faquir Singh & PW-4 Chajju Ram are the real brother of deceased Baldev Singh and interested witnesses. Non-
14 CRA 49/2011furnishing of explanation by the I/O, casts serious doubts regarding the credibility and genuineness of the prosecution case.
12. The remaining witnesses of prosecution viz; PW-5 Kulbir Singh (witness to receipt of dead body), PW-6 Davinder Singh (witness to receipt of dead body), PW-8 Om Parkash (circumstantial & hostile witness), PW-10 Sat Pal (Naib Tehsildar), PW-11 Bishambar Dev Singh (Patwari Halqa) are formal witnesses, and in absence of the reliable evidence of eye witnesses PWs 7&9 their evidence by no stretch of imagination fasten the appellants/convict with the commission of crime attributed to them. Moreso, PW-12 Dr. Balkar Choudhary has conducted the postmortem of deceased Baldev Singh and has furnished opinion regarding death of deceased as „due to cardio pulmonary arrest which caused extensive hemorrhage‟. Evidence of Doctor witness PW-12 Balkar Choudhary is only of the opinion value, and in absence of the cogent and reliable evidence of direct evidence of eye witnesses, his evidence cannot sustain conviction against appellants/convict. PW-13 Sunit Koul (Asstt. Scientific Officer FSL Jammu) has opined that no poison was detected in the exhibits sent to him by the police, meaning thereby, that the case of suicide by the deceased is ruled out, and the deceased had met homicidal death. PW-14 Raval Singh Choudahry is the investigating officer of the case, but his evidence in absence of direct evidence of eye witnesses, cannot by any stretch of imagination fetch conviction for accused.
13. We, on the basis of the aforesaid evidence, hold that there is no legal evidence on record to prove that appellants/convict are the mastermind of murder of deceased Baldev Singh. The direct evidence/the circumstances as relied upon by the prosecution are not strong enough indicating the involvement of appellants/convict in the commission of crime as all the circumstances are not compatible with the possibility of guilt of the accused. The witnesses examined by the prosecution have not been able to putforth in their evidence a ring of truth so as to inspire confidence in this court. Evidence of prosecution witnesses, is therefore, qualitatively and quantitatively, insufficient to bring nexus between appellants/convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the 15 CRA 49/2011 manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. It would be highly dangerous and hazardous to hold the appellants/convict guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful.
14. For the foregoing reasons and discussion, we are of the considered view, that prosecution has miserably failed to prove the guilt of the appellants/convict beyond reasonable doubt for commission of offences U/Ss 302/34 RPC. The criminal conviction appeal, therefore, deserves to be allowed and the same is allowed. Resultantly, the impugned judgment of conviction dated 15.11.2011 and order of sentence dated 18.11.2011 rendered by the court of Ld. Sessions Judge Jammu in file No. 12/Sessions titled State Vs. Baba Kali Dass Bharati & Anr. based on surmises, assumptions and presumptions is unsustainable in the eyes of law and the same is set aside/quashed. Appellants/convict who are already on bail vide this court order dated 27.04.2017, are therefore, cleanly acquitted of the charges leveled against them for commission of offences U/Ss 302/34 RPC. Record of the trial court be sent back forthwith alongwith copy of the judgment for information of the trial court.
15. Disposed of accordingly alongwith all connected CrlM(s) if any.
(Mohan Lal) (Sanjeev Kumar)
Judge Judge
JAMMU
23.08.2023
Vijay
Whether the Judgment is speaking: Yes
Whether the Judgment is reportable: Yes