Jammu & Kashmir High Court
State Of J&K; vs Ajay Kumar Mehta & Anr. on 25 July, 2017
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: Cr. Acq. Appeal No.49/2005
Date of Decision: 25.07.2017
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State of Jammu & Kashmir Vs. 1. Ajay Kumar Mehta
S/o Sh. Suraj Parkash,
R/o Tanga Wali Gali,
Jammu. (dead)
2. Vijay Kumar
S/o Puran Dass
R/o Upper Gaddi Garh,
Jammu
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur
Hon'ble Mr. Justice Sanjay Kumar Gupta
________________________________________________________
Appearing counsels:
For appellant(s) : Mr. S. S. Nanda, Sr. AAG.
For respondent(s) : Mr. Vishal Sharma, Advocate.
_______________________________________________________________ Per: Sanjay Kumar Gupta-J
1. Being aggrieved of the judgment rendered by learned Principal Sessions Judge, Jammu, dated 31.12.2003 whereby acquitting the respondent-Vijay Kumar (hereinafter to be referred to as 'accused'), State has preferred present Cr. Acq. Appeal No.49/2005.
2. At the very outset, it is made clear that during the pendency of the appeal, respondent No.1 has died. The trial against this accused was already stayed by court below on 15.2.2002 in terms of section 464/465 of Cr.P. C.
3. In short, the case of the prosecution is that on 09.03.1994, SI I/C Police Post Panjtirithi along with constables Doulat Ram No.1142, Gulzar Hussain No.1685 and Darshan Kumar No.1726, while patrolling on reaching near D.B.N. School, Mubarak Mandi, Jammu, received Cr. Acq. Appeal No. 49/2005 Page No. 1 of 30 information from reliable source about causing of grievous injuries on chest, head and abdomen of Surinder Kumar alias Gogu S/o Gursharan Dass R/o Kali Jani, Jammu, who was going on his scooter to his shop from the side of Mubarak Mandi, in the lane of Gadadhar Temple, by two persons namely Ajay Kumar Mehta S/o Suraj Parkash R/o Tangawali Gali and the another unknown person, armed with 'kirch' and 'tokas' respectively ; the accused had run away from the spot and the injured was being taken to the hospital in auto rickshaw. This led to the registration of FIR No.87/1994 for the commission of offence initially under Sections 307, 341/34 RPC read with Section 4/25 Arms and thereafter under Sections 302/341 read with Section 34 RPC and 4/25 Arms Act. During investigation, the spot was inspected, site plan was prepared, one piece of cloth soaked with blood lying on spot was seized and sealed, scooter No.7980-JK02 was seized and SI Prem Raj Shan, Incharge Police Post, Panjtirthi was deputed to hospital and photograph of the dead body were taken. During investigation, it was found that Surinder Kumar alias Gogu S/o Gursharan Dass has succumbed to the injuries while carrying him to hospital. The dead body was taken into possession by the police and postmortem was got conducted and during postmortem, seized the clothes of the deceased, filled Fard-surat Hall , sent the blood stained clothes of the deceased for chemical tests to the FSL as well as blood of deceased taken in a bottle and dead body of the deceased was handed over to his heirs for last rites. Statements of the witnesses under Section 161 Cr. P.C. were also recorded. After completing the investigation, the Investigating Agency concluded that motive attributed to the accused to commit crime was the old enmity between Sikander, brother of deceased Surinder Kumar alias Gogu, who used to stand surety for his brother and accused Ajay Kumar along with other accused had committed the crime to eliminate Surinder Kumar to prevent him from standing Cr. Acq. Appeal No. 49/2005 Page No. 2 of 30 surety anymore. The Final Police Report was presented before the Court of Judicial Magistrate 1st Class (Munsiff), Jammu for the offence under Sections 302/341 read with Section 34 RPC and 4/25 Arms, against accused, namely, Ajay Kumar Mehta only because the other accused absconded after commission of the offence and the police made a request for proceeding under Section 512 Cr. P.C. against accused Vijay Kumar. The learned Judicial Magistrate after recording statement of the searching constable committed the case to the Sessions Court for trial of the accused as one of offences under Section 302 RPC was exclusively triable by the Court of Sessions.
4. On 26.12.1994 accused Ajay Mehta was charge sheeted under Section 302/34 RPC and 4/25 Arms Act. The contents of the charge sheet were read over and explained to him, who pleaded not guilty and claimed trial.
5. During pendency of the case for recording prosecution evidence against accused Ajay Mehta, supplementary challan was produced against other accused, namely, Vijay Kumar and on 29.06.1995 he too was charge-sheeted under Section 302/34 RPC.
6. To prove its case, the prosecution examined Raj Kumar, Ravi Kumar, Ashok Kumar, Kamal Kumar, K.K. Raina- Scientific Officer, Raj Kumar Constable, Dr. Anayat Ullah Sheikh, Shamsher Singh, SHO, as prosecution witnesses.
7. Order dated 18.09.2001 of record reveals that accused Ajay Kumar Mehta, on putting some questions by trial court behaved abnormally and the superintendent Jail was directed to get him medically examined and treated by a Psychiatrist and the report submitted by the Medical Oficer, Kot Bhalwal Jail, did not demonstrate the mental faculty of the accused to Cr. Acq. Appeal No. 49/2005 Page No. 3 of 30 understand the things, therefore, on 01.11.2011, Superintendent Central Jal, Kot Bhalwal, Jammu was directed to get the accused medically examined by a Board of Doctors and to report whether the accused was fit to understand the things so that further trial in the case could be conducted; on 15.02.2002 statement of Dr. Chander Mohan Sharma, HOD Psychiatric Hospital, Jammu, on the application of accused Ajay Kumar Mehta under Section 464/465 Cr. P.C., was recorded. Doctor stated that accused Ajay Mehta was incapable of understanding the things and as such, was also incapable of making his defence. Trial court therefore, further proceedings in the case against Ajay Kumar Mehta were postponed till further orders and accused Ajay Mehta was remanded to the Jail custody with a direction to the Jail authorities to get him treated and report the Court fortnightly about the mental faculty of the accused.
8. The trial against another accused Vijay Kumar was thereafter commenced by trial court.
The brief resumes of prosecution witnesses reads as under :-
1. PW Kamal Kumar: He states that he knows the accused present in court. It is the occurrence of
09.03.1994. At about 8.15 a.m. his brother Surinder Kumar had gone to leave his children to the school and when he was coming back, he (witness) was also going to open his shop. When he reached near the shop, which is situated at Mubarak Mandi outside the Court, he saw many people had assembled near DBN School. He had also gone there and heard the noise of 'Bachao Bachao'. When he reached near, he saw accused present in Court were beating his brother Surinder Cr. Acq. Appeal No. 49/2005 Page No. 4 of 30 Kumar. Accused Ajay Kumar was having 'Kirch' and other accused Vijay Kumar was having 'Toka'. When he saw these two accused beating his brother, he raised noise 'Bachao Bachao', but the people who were standing there did not come and accused fled away. In his presence, accused had inflicted 8-10 injuries with 'Toka' & 'Kirch' on his brother Surinder Kumar and deceased was lying on the earth due to injuries sustained by him. Thereafter he along with other 3-4 persons lifted the injured and put him in an Auto. Deceased was taken to GMC Jammu. Doctor saw the injured and declared him dead. His brother died due to injuries sustained by him. His statement was recorded on the second day of occurrence in police. Police called him on 05.09.1994 in the Police Station. Police was recording the statement of these two accused. Accused Ajay Kumar Mehta, in his presence, made a disclosure statement with regard to 'Kirch' the weapon of offence. Disclosure statement bears his signatures, it is marked EXPW-RK. Accused stated that he has hidden 'Kirch' below the Nawar of bed. At the time of disclosure statement, two boys Raj Kumar and Ravi Kumar were also present. Police also obtained their signatures. Thereafter, he (witness), Ravi Kumar, Raj Kumar and police persons along with accused had gone to the house of accused situated at Tanga Wali Gali. The accused Ajay Kumar brought out the Kirch from beneath the Nawar of bed and produced the same to the police. Seizure memo of 'Kirch' bears his signatures. Police also obtained the signatures of Cr. Acq. Appeal No. 49/2005 Page No. 5 of 30 other two boys namely Ravi Kumar and Raj Kumar. He has heard the contents of seizure memo and it is marked as EXPW-RK1. The 'Kirch' which he has seen in the Court, is the same which was recovered from the house of Ajay Kumar and produced the same to the police. The Kirch produced in the Court, is same which was given by Ajay Kumar from his house to the police; seizure memo has been already been marked as EXPW-1. Prior to this incident, his brother Jagdish Chander was also murdered. His brother Surinder Kumar ( deceased )was conducting the proceedings of murder case of his elder brother . Accused present in Court, used to meet the accused who were arrayed as accused in the murder case of his brother Jagdish Chander. Because deceased Surinder Kumar was conducting the proceedings in that case, so accused present in court, had committed murdered of his brother due to this enmity.
On cross-examination, the witness has stated that his brother Jagdish Chander was murdered 7 ½ ago. Accused present in Court, were not involved in that case. The accused who have committed murder of his elder brother Jagdish Chander, had been lodged in jail. Accused, present in Court, used to go to jail to meet those accused. He was also witness in the murder case of his brother Jagdish Chander. However, he was not eye witness. He knew Ravi Kumar, Vivek Singh and Raj Kumar. When his brother was murdered he did not know these persons. These persons knew his elder brother Surinder Kumar and they were known to Cr. Acq. Appeal No. 49/2005 Page No. 6 of 30 him. Thereafter he was not in talking terms with these persons. Vivek Singh also did not meet him thereafter. These persons were not friends of his brother Sikander Kumar. His brother Sikander Kumar is in jail with regard to the murder case. Vivek Singh is also an accused along with his brother Sikander Kumar in that very murder case. Vivek Singh is residing at a distance of 10-15 feet from his residence. Vivek Singh is also a witness in this case. He does not know as to when the police recorded the statement of Vivek Singh. However, Vivek Singh did not come to him from March, 1994 to September, 1994. Vivek singh is also an accused in many criminal cases. It is incorrect that Ravi Kumar, Ajay Kumar and Vivek Singh had given statements in this case as they were friend of his brother Sikander Kumar. At the time of occurrence, he was going to open his shop. He had come to his shop situated outside the door of Court from Pacca Danga side. When he reached near his shop, he heard noise. When he reached near the place of occurrence, he found that accused persons were beating his brother Surinder Kumar with 'Kirch' and 'Toka'. The place where the people had gathered was visible from his shop but the place of occurrence was not visible from his shop. People who had gathered there were of same vicinity. Some school boys were also there. On seeing the accused beating his brother, he also raised noise. However, he did not try to catch them. On raising noise, the accused persons have fled away from the spot. The accused had fled towards Panjtirthi Cr. Acq. Appeal No. 49/2005 Page No. 7 of 30 Bazar. He did not chase them. However, he lifted his brother and put him in Auto. He does not know the persons, who accompanied him in hospital along with his brother. It is correct that he was coming from Pacca Danga side to his shop. The fact written in his statement by police that he was coming from Panjtirthi side is incorrect. He has not given any such statement to the police. He did not narrate the facts to the police that when his elder brother Jagdish Chander was murdered, his brother Sikander Kumar committed certain crimes. It is correct that deceased Surinder Kumar used to bail out the Sikander Kumar, his brother, and due to this reason, accused were keeping enmity with Surinder Kumar. He has not got written these facts with the police. Accused present in Court used to go to the jail to meet accused involved in the murder case of his elder brother Jagdish Chander. Due to this reason, his brother Surinder Kumar was murdered. He does not know as to whether there were many enemies against his brother Sikander as he was involved in many crimes. When the statements of accused were written, it appears from their faces that they had been beaten. While proceeding towards the Tanga Wali Gali from Kachi Chawni, house of accused Vijay Kumar is towards left side. Accused brought the 'Kirch' from the middle story of his house below the bed. It was evening; no person from the vicinity was present. 'Kirch' seized by the police, it was having steel handle. He saw this 'Kirch' while accused Ajay Cr. Acq. Appeal No. 49/2005 Page No. 8 of 30 Kumar was beating in the Belly of his brother. No further question was asked.
2.PW-Raj Kumar stated that he knows the deceased Surinder alias Gogu and the accused. On 09.03.1994 at quarter to 8.00 a.m., after exercise from Gym he along with Ravi Kumar were coming towards DBN School and when they reached in the back lane of DBN, which connects the lane of Gadhadhar temple, saw accused standing there and accused, Ajay Kumar Mehta was armed with 'Kirch' whereas accused Vijay Kumar was having a Toka in his hand. Surinder Kumar was stopped by both these accused when he was coming on the scooter and both of them started inflicting injuries with weapons, they were armed. Due to the injuries Surinder Kumar fell down and both the accused ran away and threatened to eliminate in case they gave any evidence against them. After the arrest of accused Ajay Mehta, he had gone to the Police Station for recording his statement. When he along with Ravi Kumar and Kamal Arora had gone to the Police Station on 05.09.1995 to enquire about the investigation of the case at that time accused, Ajay Mehta told in their presence about the hiding of 'kirch' in the straps (Nawar) of his cot. Disclosure statement was recorded and he along with Ravi Kumar and Kamal Arora signed the same. Accused also signed on his statement. He admitted the contents of EXPW RK to be correct. After this, the Police took the accused to the place of recovery and on his nishandehi/identification , kirch was recovered. The recovery memo was prepared which bears his and the signatures of the above witnesses. The length of the blade of 'kirch' was 8" and its length and breadth is mentioned in the recovery memo. He admitted the contents of recovery memo to be correct, which is marked EXPW RK/1. He knew the deceased Cr. Acq. Appeal No. 49/2005 Page No. 9 of 30 Surinder Kumar for the last four years but does not know the brother of the deceased. He visits Champion Gym, Karan Nagar and on the day of occurrence he was coming back from Champion Gym, Karan Nagar and going towards DBN school. Ravi Kumar also accompany him to Gym. He and Ravi Kumar were going on scooter and when reached in the lane of Gadhadhar Temple accused crossed them and the accused Surinder Kumar was going on scooter and they stopped Surinder Kumar and caused him injuries with Kirch. He cannot tell number of injuries inflicted on Surinder Kumar. He and Ravi Kumar witnessed everything with their own eyes. He did not make any attempt to save deceased. Accused beaten the deceased. Accused took little time in beating the deceased. He did not raise noise but the deceased was raising noise. Many people gathered there. His relative and brother reached first of all at the place of occurrence and thereafter other people came and relative and brother of the deceased took the deceased to hospital. He cannot tell the condition of the dead body in which it was lying on the spot. Statements with regard to the occurrence and with regard to the seizure memo were recorded on different dates. Statement of the seizure memo was recorded after 20/25 days of recording of his statement under Section 161 Cr.P.C. He cannot name the police office, who recorded his statement. It is correct that his statement under Section 161 Cr.P.C. was recorded on the date of arrest of accused Ajay Mehta. At the time of seizure, he was with the police. Accused Ajay Mehta told about the lying of the Kirch in the mid of his cot. On this the police recovered and seized the kirch. Seizure memo was prepared on spot and he signed it. The seizure memo was prepared at the day time and the neighbours were standing outside their houses, however, they did not Cr. Acq. Appeal No. 49/2005 Page No. 10 of 30 come on spot. He identified the Kirch which was used on the day of occurrence. He was standing at a distance of 8/10 feets from the place of beating of the deceased by the accused. He has not come to make the statement on anybody's instance but is making the statement about whatever he had seen with his eyes. He knows the accused prior to the occurrence. Accused ran towards Dhoontli Bazar. Accused had threatened him to eliminate in case he informed the Police. Therefore, he did not lodge the report and he and Ravi Kumar made the statement when accused Ajay Kumar Mehta was arrested.
3.PW- Ravi Kumar deposed that he knows the accused. He along with PW-Raj Kumar had gone to Champion Gym, Karan Nagar on 09.03.1994 and while coming back at 8 a.m., when they reached near Gadhadhar temple, saw the deceased coming on scooter, who was stopped by the accused, who were going on foot. Accused, Ajay Kumar Mehta was having a kirch in his hand and accused Vijay Kumar was having a Toka in his hand and both of them started beating the deceased. Deceased fell down and his brother Kamal Arora and 2/3 other persons came on spot at the same time and accused gave threat that if anybody gave evidence against them, they will be eliminated. Thereafter, they went from the spot. Injured was taken to the hospital where he succumbed to his injuries. On 3rd August, they came to know that accused Ajay Mehta was arrested and then they went to make the statement to the police. Accused- Ajay Mehta made a disclosure statement about the keeping of the kirch under the cot in his house situated at Tangawali lane. The disclosure statement was recorded, which bears his signatures. In cross-examination, the witness deposed that he knows the accused for the last 3/4 years. Kamal Arora-
Cr. Acq. Appeal No. 49/2005 Page No. 11 of 30witness was not his friend but he knows him. He does not know Billu, brother of deceased. He visits Gym for exercise. He visits Gym for exercise. His friend PW-Raju also visits Gym for exercise. He and Raj Kumar daily come to Karan Nagar Gym from Krishna Nagar as the owner of the Gym is their friend. They were coming to DBN School from Gym as PW-Raj Kumar was to meet the teacher of his younger brother, staying in DBN school. He and Raj Kumar were coming on scooter and deceased was in front of them. They saw both the accused beating the deceased from a distance of 25/30 yards. Accused, Ajay Mehta was having 'kirch' and Vijay Kumar was having a 'toka' in their hands. They beat the deceased for only two minutes. He cannot say how many strikes were given by the accused. Deceased fell from the scooter on spot due to the injuries received by him. He cannot say whether the deceased died on spot but he had fallen from the scooter. Brother of the deceased Kamal Arora and 2/3 other persons took the deceased to hospital. He had heard about his death. He did not go to the Police Station because accused had threatened to kill them. No criminal case is pending against him in the Court nor had he given evidence in any case in the Court. It is incorrect that he appeared as a witness in Nathu murder case. He has no concern with his younger brother Rattan nor can he say about his involvement in any murder case. Attempt to murder was made on him and he received injuries on his hand and he went for treatment to Ludhiana and went to Police Station after five months of the occurrence. He denied the suggestion to be incorrect that he had gone with the brother of the deceased at that time. He had gone to the Police Station on the day of occurrence in connection with the case. His statement was recorded once and second time he went at the time of seizure.
Cr. Acq. Appeal No. 49/2005 Page No. 12 of 30Kamal Arora was already present there when he went to the Police Station second time. It is incorrect that the police beaten the accused but the police was sitting outside at that time. Accused, Ajay Mehta took the police along with him to his house at Tangawali lane and got 'Kirch' recovered from the room and handed over to the Police. He had accompanied the Police. Kirch was not stained with blood at that time. He did not visit the house of the deceased after the occurrence. Accused had threatened them to kill, as such, did not talk to anybody about the occurrence. He did not make any report about the threat extended by the accused. It is incorrect that Billu, brother of the deceased was involved in a murder case and on his instance, he has come to make a false statement. He further denied the suggestion to be incorrect that he told Raj Kumar to stand as witness. Deceased had fallen from the scooter after receiving the injuries with back facing the ground. After the occurrence accused ran away towards the lane, which leads to Dhonthly Bazar. He did not run to catch the accused because the accused had given threat and no witness tried to catch them. It is correct that the occurrence took place in the lane, which is a thoroughfare, and some people were standing in the lane at that time. He does not know any of them. He has not seen the seized 'kirch' in the Court. He has talked to the members of his family about the occurrence before the arrest of the accused and also told the members of his family that accused had threatened them not to narrate about the occurrence to anybody. Police did not reach on spot in his presence. Deceased was on spot when he left the place. Raju is his friend. He and Raju went together from the place of occurrence. No conversation took place with the deceased and the accused before the occurrence. The deceased was riding Cr. Acq. Appeal No. 49/2005 Page No. 13 of 30 on the scooter, which was stopped and accused attacked him. On the prayer of Public Prosecutor to the Court for showing the 'kirch' to the witness and on examination, the witness stated that he had seen the 'kirch' and it is the same with which the accused had committed the offence and got recovered by the accused from his house.
In further cross-examination, witness deposed that he had seen the kirch at the time of occurrence and recognized the same at the time of its recovery. He does not know whether kirch are commonly available in the market but the 'kirch' was seized on 4th August, 1994.
On application moved under Section 540 Cr.P.C., by witness statement of PW-Ravi Kumar was again recorded on 04.07.2000 and on the question of the Court, he stated that he made a statement in the Court on 03.12.1996. He has heard the contents of his statement, which was given by him in the Court. He was taken by the persons of Sakinder Arora alias Billu inside the room in Kali Jani in the month of August, 1994 and obtained his signatures and told him to depose before the Court about the killing of deceased by Ajay Mehta and Vijay Kumar and he had made the statement in the Court on 03.12.1996. Advocate had also told him to make the statement but he does not know the name of the Advocate and he made the statement on 03.12.1996. He was aware on that day about making statement on oath and not to speak lie and the Court also told him that whatever statement he will make will be true. He was threatened to be killed in case he refused to make the statement in the Court according to them and was afraid. Billu, who threatened him, has expired. Now, he has no danger or threat, therefore, he has come to make the statement today in Cr. Acq. Appeal No. 49/2005 Page No. 14 of 30 the Court. The statement, which he is making in the Court, is true statement. He is fully aware that truth is spoken in the Court and false statement can lead to punishment. Despite knowing all these facts, he has given a false statement due to fear of life on 03.12.1996. He has heard the contents of the statement dated 03.12.1996 and admitted the statement given to the Court correct. This is marked EXPW-RK. On 01.11.2000 in further cross-examination by the Court, the witness deposed that he got the application drafted under Section 540 Cr.P.C. by a typist and the Advocate, who has submitted the application was engaged by other witness Raj Kumar and the same Advocate got the application written. In short, he told the typist that he has no knowledge of the case and had made the statement under threat and rest of the facts in the affidavit and the application were written by the typist on his own. He does not know what more is written in this application and the affidavit as he is illiterate.
Similarly, statement of PW Raj Kumar has been recorded on 29.09.2000 under Section 540 Cr.P.C. and on examination by the Court, he deposed that he does not know anything about the occurrence and Sakinder Arora got him examined under threat. Sakinder Arora is dead for the last two years. He was taken in a house at Kalijani where the Advocate was sitting and the Advocate made him understand with regard to the making of statement and the complainant party also tutored him on making the statement and told that if he failed to depose as told by them, they will finish him and his entire family. He does not know the Advocate but he was a young. After this complainant party took him to the police station and obtained his signatures there and directed him to appear in the Court on the Cr. Acq. Appeal No. 49/2005 Page No. 15 of 30 date of hearing and on the date of hearing men of Sikander Arora came and took him to the Court. Now he is not under any pressure and is making statement of his own. Had he refused them to make the statement he would have been eliminated. He did not narrate the police about bringing him under coercion for making statement and to provide him protection. His statement in the Court was recorded after three years of his making the statement before the Police. He made the statement in the Court on 30.07.1995 and on 12.08.1996 and has heard the said statement and has made false statement in the Court. It is correct the Court inquired from him at that time also about making a statement under any pressure or on anybody's instance but he told that he is not making the statement under any pressure, influence or threat. He did not tell the Court about making the statement under threat.
In cross examination, he deposed that his statement in the police was recorded on 04.08.1994 and his partial statement was recorded on 04.07.1995 in the Court. His statement in the Court was recorded after eleven months of recording his statement under Section 161 Cr.P.C. During this period he did not tell anybody about the threat of those people and compelling him to make the statement. He did not narrate anything about this and on 04.07.1995, the Court recorded his statement. He made a statement in the Court at that time that he did not record his statement in the police neither lodged the report nor could come to the Court for making statement about the threat of the accused. He has also given a statement at that time in the Court that accused Ajay Mehta is arrested and has come to make the statement. Sakinder Arora is dead for the last two and half year. He knows about the attack made on Cr. Acq. Appeal No. 49/2005 Page No. 16 of 30 Sakinder Arora in the jail and was murdered. Affidavit given in the Court for recording statement again was attested by the Notary on 04.05.1999. Sakinder Arora died in the jail in the first week of September, 1997 and for the first time he made an application in the month of May, 1999 along with an affidavit after the death of Sakinder Arora. That no kirch was recovered in his presence. He signed on the document in the police station itself. Kamal Arora and Ravi Kumar besides him signed seizure memo. He has no seen the commission of murder with his eyes.
4. PW Dr. Anayat Ullah Sheikh, Associate Processor, GMC Jammu, deposed on 09.03.1994 at 11.30 a.m. that he conducted the postmortem examination on the body of Surinder Kumar Arora alias Gugu S/o Gursharan Dass R/o Kali Jani Jammu, whose body was identified before him by Narain Singh S/o Madan Singh R/o Fatu Chogan and Sunil Kumar S/o Devi Dass R/o Fatu Chogan. On examination, he found as many as eighteen injuries on the body of the deceased. Internally there were six incised punctured wounds in the heart rupturing the ventricle atria and front. Similarly, ten wounds variously placed were seen in the lungs, which were collapsed. About three liters of blood and clots were seen in the chest and about a liter in the abdominal cavity. In his opinion, the death in the instant case was due to hemorrhage, shock as a result of multiple injuries caused by sharp edged weapon.
5. PW K. K. Raina, Scientific Officer, FSL, Jammu deposed that on 14.09.1994 four sealed packets were received from SDPO City North, Jammu through SGC Ashok Kumar No.1360/J in connection with case FIR No.87/1994 under Section 302/34 RPC of Police Station Pacca Danga, Jammu. The packets were sealed Cr. Acq. Appeal No. 49/2005 Page No. 17 of 30 with the seal of the impression forwarded by the Executive Magistrate Ist Class and the seals were intact. On opening the packets marked A, B, C and D sealed with three, eleven, seven and four seals, it was found to contain a feebly stained cloth piece (white), a profusely stained torn shirt, moderately stained pant, feebly stained leather belt, a moderately stained gauze, putrefied reddish brown liquid in a vial and feebly stained papers which were market as Exhibits B- 1171/94 to B/1177/94 respectively. A portion from each of these exhibits was subjected to chemical, microscopically and serological examination for the determination of the presence of blood and further origin and groups of blood. The chemical, microscopically and serological examination reveals the presence of blood in the exhibits B-1171/94 to B- 1174/94. The exhibits marked as 1171/94 to 1175/94 were stained with human blood and belongs to group A. The exhibit marked as 1176/94 was in disintegrated condition as such the origin and group of the blood could not be ascertained. The exhibits marked B 1177/94 were stained with human blood but the blood group could not be determined because the result were inconclusive because of the presence of interfering substance as such the origin and group of the blood could not be ascertained. The report on the file is correct and it is marked EXPW-KK.
On cross examination, this witness stated that he has passed his M.Sc. in Botany from Kashmir University in 1969 and has acquired professional training in Forensic Biology/Serology from a premier institute of the country i.e. Central Forensic Science Laboratory, Calcutta in 1971 and has the experience of 26 years and has conducted thousands of cases. The clothes of the Cr. Acq. Appeal No. 49/2005 Page No. 18 of 30 deceased were stained with blood only. He has not found any earth clay on them.
6. PW Vivek Singh deposed that in the morning of 09.03.1994 he was in his house at 8 O' clock. He does not know accused Vijay Kumar but knows accused Ajay Kumar. He did not see accused present in the Court and other accused Ajay Mehta who is not present in the Court attacking Surinder Kumar S/o Gursharan Dass with 'Kirch and Tokast' at Gadhadhar temple near Mubarak Mandi. On the request of the Public Prosecutor the witness was declared hostile and permitted to be cross-examined and in cross examination this witness deposed that police did not call him on 04.08.1994 nor inquired about this case. His attention was drawn to portion of his statement mark A-1 recorded by the police on 04.08.1994 and he denied making such a statement to the police. He even did not tell the police that accused Ajay Mehta, present in the Court, threatened to eliminate if anybody dared to make statement against them, at the time of running from the place of occurrence. Two criminal cases are pending against him in the Court. This witness further deposed that he is not a history sheeter of Police Station Pacca Danga, Jammu.
7. PW Soneet Singh, Naib Tehsildar, deposed that on 14.09.1994, he was posted as Executive Magistrate (Naib Tehsildar) Nagrota and on that day Abdul Rashid Daing, Head Constable Pacca Danga Police Station Jammu submitted four sealed packets for resealing the same. Packets were marked A, B, C and D and already affixed seals on them were intact and he resealed these four packets with his official seal and issued the certificate along with the specimen of the seal on the certificate. He admitted the certificate EXPW-SS.
Cr. Acq. Appeal No. 49/2005 Page No. 19 of 30In cross-examination, this witness stated that he has not seen the resealed packet in the Court. He does not remember what was contained in those packets. His office was in Jammu and packets were produced in Jammu office for resealing.
8. PW Shamsher Singh I/O deposed that he knows the accused. He was SHO Police Station Pacca Danga in the year 1993 and he has investigated the case partially and preliminary investigation was conducted by the then SHO Mr. Thappa. He recorded the statement of eye witnesses Ravi Kumar, Raj Kumar and Vivek Singh under Section 161 Cr.P.C. The witnesses appeared of their own and made the statement under Section 161 Cr.P.C. He arrested accused Ajay Kumar Mehta and prepared his disclosure, which is under his handwriting and signatures. This is already marked EXPW-RK. On the disclosure of accused, Kirch the weapon of offence was recovered from his house. The seizure memo was prepared which is under his handwriting and signatures, the contents of which are correct and which is already marked EXPW RK/1. Site plan of the place of recovery is in his handwriting bears his signatures and is correct. The site plan was marked as EXPW-SS. He recorded the statement of the witnesses of disclosure and recovery memo and thereafter he was transferred. In cross-examination, he deposed that brother of deceased Bill alias Sakinder who was murdered was notorious criminal of this area and many cases of attempt to murder and extortion are registered against him due to which the deceased Billu had made many enemies. Billu has prepared his gang of many criminals. He cannot say whether Ravi Kumar and Raj Kumar, witnesses of this case, were in his gang. He does not know whether Vivek Singh and Billu came in the jail together in connection with a murder case nor he knows Cr. Acq. Appeal No. 49/2005 Page No. 20 of 30 about the residence of Vivek Singh at the same place at Fattu Chogan. Statements of Raj Kumar, Ravi Kumar and Vivek Singh were recorded after six months of the occurrence. He enquired about their remaining silent during this period and they told that accused had threatened to murder them if they make the statement against them but when they heard about the arrest of the accused, they came of their own for recording statements. He did not arrest accused Vijay Kumar but he knows accused Vijay Kumar earlier. No eye witnesses had made a statement before him that neither the murder has been committed on the instance of convicted accused in the jail nor he investigated in this connection. He does not know whether Raj Kumar and Ravi Kumar have made a statement in the Court that their earlier statements have been made under threat. He did not beat the accused at the time of disclosure and seizure. If Kamal Arora has made any statement that he has obtained the disclosure from the accused after beating them, is false statement. He does not know the members of Billu gang. However, disclosure was made at the police station. Kirch was got recovered from the ground floor.
This was evidence produced by prosecution before court below.
9. Statement of accused Vijay Kumar under Section 342 Cr.P.C was recorded. Accused denied the allegations made against him and stated that the witnesses made false statements. The accused did not produce any defence evidence.
10. The learned trial Court after hearing the PP , defence counsel for accused Vijay Kumar and after appreciating the entire evidence acquitted the accused Cr. Acq. Appeal No. 49/2005 Page No. 21 of 30 Vijay Kumar. Court below did not rely on statements of eye witnesses on various reasons detail of which has been given in judgments.
11. We have re-appreciated all the evidence on record. We have also taken note of power of High Court in case of appeal against the acquittal
12. The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in case AIR 2014 SC 2200 in case titled 'Muralidhar alias Gidda & anr. v State of Karnatka' [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :-
10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... 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." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."Cr. Acq. Appeal No. 49/2005 Page No. 22 of 30
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and
(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a Cr. Acq. Appeal No. 49/2005 Page No. 23 of 30 different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
In 'Ghurey Lal v State of U.P.' (2008) 10 SCC 450, the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above.
13. Keeping in view above law in mind, now we will discuss the reasons given by court below in acquitting the accused Vijay Kumar.
14. Prosecution has produced four eye witnesses in the case; these are PWS Kamal Kumar , Vivek Singh Raj Kumar and Ravi Kumar. Court below has observed that FIR no. 87/1994 u/s 307,341/34 RPC 4/25 A. Act which has been registered on the docket of I/C P/P Panthirthi did not mention the name of accused Vijay Kumar; it only mentions the name of accused Ajay Mehta and one more assailant.
15. We have gone through FIR, it is correct that there is no name of accused Vijay Kumar in it as assailant. Court below in his acquittal judgment has also observed that PW Kamal Kumar the real brother of deceased whose statement under section 161 Cr.P.C was recorded on next day of occurrence did not mention the name of accused Vijay Kumar as assailant; and he named the accused Vijay Kumar as assailant first time in court on 18.2.1997, when his statement was recorded.
Cr. Acq. Appeal No. 49/2005 Page No. 24 of 3016. We have gone through the statement of PW Kamal Kumar given before Police and Court. In this statement before police he has given all the detail of incident but has named Ajay Kumar as accused ,he has not named Vijay Kumar ; but before court on 18.2.1997 ,he has stated that his brother Surinder Kumar alias Goggu ( deceased ) has gone on 9th march 1994 at 8.15 AM to drop children to school and was coming; he ( witness ) was also going to open shop outside Mubark Mandi when he saw many people gathered near Dewan Badri Nath school ; he went there and heard noise of Bachao
-Bachao and he saw both accused beating his brother; Ajay Kumar was having Kirch and Vijay Kumar was having Toka; both accused inflicted ten blows. His brother fell down; he picked up and took him to GMC. Beside that he has stated that, place of occurrence was visible from his shop. It has also come in his cross examination that PWS Raj Kumar, Ravi Kumar and Vivek Kumar was known to him as they know his brother Surinder deceased. It also transpires from his cross examination that present accused used to meet the accused persons involved in murder case of his another brother Jagdish.
But this witness has not mentioned the presence these witnesses in his statement recorded u/s 161 Cr.P.C on next day of occurrence, this led court below first reason not to rely on his statement; secondly presiding officer of court below in order to appreciate the fact as to whether place of occurrence was visible from shop of this witness, inspected the place of occurrence with PP and defense counsel on 13.9.2003 ; it was observed by court that place was not visible as stated by this witness.
Cr. Acq. Appeal No. 49/2005 Page No. 25 of 3017. Court below has also held the accused Vijay Kumar was known to PW Kamal Kumar prior to occurrence, but even than he has not named him in his statement u/s 161 Cr.P.C recorded on next date of occurrence to police. When accused are known to witness, than the fact of not mentioning name or telling at earliest to police cast a reasonable doubts of false implication.
18. In this way, we do not find any incorrectness in judgment of Court below in not relying on the statement of this witness.
19. Now there requires appreciation of statements of other two eye witnesses recorded in court. These are PWS Raj Kumar and Ravi Kumar. They have initially have supported the prosecution case but subsequently, there statement were also recorded as court witnesses after they filed application under section 540 Cr.P.C, which was allowed by court on 19.4.2000 and order was upheld by Hon'ble High Court.
In their statements as Court witnesses they stated that they had deposed falsely earlier on the instruction of Gang members of Sikander alias Billu, a notorious criminal of the city Jammu who was brother of deceased; it is after murder of Sikander, both Raj Kumar and Ravi Kumar therefore from their earlier statement made in the Court thereby involving accused Vijay Kumar.
20. PW Kamal Kumar the real brother of deceased has admitted in his statement before court in cross examination that Billo alias Sakinder was his brother and he was jail with regard to murder case along with PW Vivek at the time of incident. Further it is also a case of prosecution that motive attributed to the Cr. Acq. Appeal No. 49/2005 Page No. 26 of 30 accused to commit crime was the old enmity between Sikander, brother of deceased Surinder Kumar alias Gogu, who used to stand surety for his brother and accused Ajay Kumar along with other accused had committed the offence to eliminate Surinder Kumar to prevent him from standing surety anymore. PW Shamsher Singh I/O has also admitted that brother of deceased Billo had been murdered; he had been a notorious criminal; many extortion, murder, and attempt to murder cases were against him; Billo had prepared a gang of criminal.
These two witnesses have given different and totally contradictory statements at same judicially proceeding at different time.
21. Law is clear that if a witness narrates different facts at different stages in same judicial proceeding which is totally contradictory to each other, than no reliance can be placed on these witnesses. The statements of these witnesses have been recorded on 4.8.1994, after about five months. Court below has held that not disclosing the fact of murder by accused to police or any other person for five months by these two witnesses, make them planted witnesses. These witnesses are thus not reliable witnesses.
22. In AIR 1971 Hon'ble Supreme court at page No 804, it is held as under:-
"Criminal P.C. (1898), S. 161-Unjustified and unexplained long delay on part of investigating officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable."
23. In LAW HEARLD SUPREME COURT 2016(1) CASE TITLED Shahid Khan v state of Rajasthan, it is held Cr. Acq. Appeal No. 49/2005 Page No. 27 of 30 that :-
"The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced.
The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.
12. Consequently, the appeals are allowed and the conviction and sentence of the appellants is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged.
24. So court below has not committed any illegality in disbelieving these two witnesses, because law is clear that inordinate delay by police in not recording statement of eye witness, if not explained satisfactory, would be fatal for prosecution.
Cr. Acq. Appeal No. 49/2005 Page No. 28 of 3025. PW Vivek Singh another eye witness has been turned hostile.
Court below has also held that PW Dr. Anayat Ullah Sheikh, has nowhere in his statement stated about any injury possible with Toka alleged to be in possession of accused Vijay Kumar at the time of alleged occurrence nor any suggestive question is put to the doctor in this behalf to know whether any injury on any part of the deceased is possible with the Toka.
26. From the perusal of record we find that no Toka alleged to be in possession of accused Vijay Kumar was at all seized during investigation. It is also a fatal for prosecution. Alleged docket written by SI Prem Nath Shan I/C P/P Panjthirthi on 9.3.1994 , upon which FIR was lodged has not been proved, because SI Shan has neither been cited as witness nor any efforts was made during trial to produce him before court. The initial SHO Thappa, who started the investigation after lodging the FIR, has not been produced. In this way, prosecution has failed to prove FIR, Site map and other relevant documents prepared in challan.
27. The courts while appreciating the evidence in criminal cases have to see the degree of proof in maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused, Court should not go on convicting the accused.
28. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities . The law does not permit the court to punish the accused on Cr. Acq. Appeal No. 49/2005 Page No. 29 of 30 basis of moral conviction or suspicion .The burden of proof never shift, it is always on prosecution.
29. Thus, following the well known cardinal principles of law in appreciating the facts in case of murder, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record.
30. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.
( Sanjay Kumar Gupta ) ( Dhiraj Singh Thakur )
Judge Judge
Jammu
25.07.2017
*Narinder*
Cr. Acq. Appeal No. 49/2005 Page No. 30 of 30