Jammu & Kashmir High Court
State Of J And K vs Gurmeet Singh on 10 December, 2015
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
1
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
Cr. Acq. Appeal No. 09/2003, MP No. 04/2009
Date of order: 10.12.2015
State of J&K vs. Gurmeet Singh
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearing counsel:
For the appellant/petitioner(s) : Mr. Rakesh Khajuria, AAG
For the Respondent(s): : Ms. Mandeep Reen, Advocate
(i) Whether approved for
reporting in Press/Media : Yes
(ii) Whether to be reported in
Digest/Journal : Yes
Per Kotwal-J
1. State is in appeal against judgment of learned 2nd Additional Sessions Judge, Jammu dated 14.09.2002, whereby in Session case No. 57 respondent, Gurmeet Singh (hereinafter to be referred as the accused) has been acquitted after his trial for commission of offence under sections 302 RPC and 30 Arms Act.
2. Heard. We have perused the record.
3. Prosecution case as it was set up before the trial court, briefly, is that on 23.10.2000 at about 2045 hrs. (8.45 p.m) Jamal Ahmad Khan, Head Constable No. 630110183 of 21 Bn. CRPF (hereinafter to be referred as the deceased) was shot at in his tent in CRPF Camp at Sector No. 6, Channi Himat, Jammu (J&K). He was 2 evacuated to Government Medical College Hospital, Jammu where he was declared as brought dead. PW-1, Raghuvansh Kumar, Assistant Commandant of the Battalion lodged written information about the incident at Police Station, Channi Himat, Jammu at 2200 hrs. (10.00 p.m.), which was entered as Report No. 29 in the daily diary of the Police Station. PW-1 while reporting the incident also stated in the written information lodged by him that though it was not known as to who shot at the deceased but Constable No. 913242435 (DVR.), Gurmeet Singh of the unit staying in the same tent has absconded from the camp and that four spent cartridges were found under the cot, on which the deceased was lying with bullet injuries. On this information, offences under sections 302 RPC and 3/25 Arms Act were registered as FIR No.354/2000 at Police Station, Trikuta Nagar (Bahu Fort) and investigation was entrusted to Shokat Mir, Sub Inspector, Additional SHO of the Police Station, Channi Himmat (PW-16).
4. The Investigating Officer (I.O.) proceeded to the spot.
He seized blood stained blanket and a bed sheet bearing bullets marks from the bedding of the deceased. The I.O. took into his possession the dead body of the deceased and dispatched it for postmortem. He seized four spent cartridges and 3 bullets within the tent where the occurrence had taken place.
5. Prosecution case further is that after the incident the accused had surrendered at Police Station, City Jammu along with his pistol loaded with live rounds. I. O. took charge of the accused and his pistol and five live rounds (cartridges) from Police Station, City Jammu.
6. The I.O. after performing other formalities including inter alia the preparing the sketch map of place of occurrence, recording statements of the witnesses under section 161. Cr. P.C. collection of postmortem report and Ballistic Expert's report found that on the date of occurrence there was a minor altercation between accused and the deceased inside the tent and the accused shot dead the deceased by firing through his service pistol, which had been allotted to him. I. O. thus, found commission of offences under sections 302 RPC and 30 Arms Act by the accused. Charge sheet against the accused was filed in the court of Committal Magistrate, which after committal came up for trial before the learned 2nd Additional Sessions Judge, Jammu.
7. Learned trial court upon consideration of the record of the case and hearing both sides, framed charges under sections 302 RPC and 30 Arms Act against the accused.
4The accused pleaded not guilty and claimed to be tried. Prosecution entered its evidence and examined 13 witnesses, namely, Raghuvansh Kumar, Assistant Commandant (PW-1), Tejpal Singh, Assistant Commandant (PW-2), Surinder Pal (PW-3), Ram Janam Paswan (PW-4), Shiv Singh, (PW-5), Allahdad (PW-6), Hem Raj Sharma, ASI (PW-9), Mohd Aslam, Constable (PW-10), Pritam Chand, Naib Tehsildar (PW-11), Gopal Ram (PW-12), Abdul Rashid (PW-13), Sarwar Khan (PW-14), Dr. Sanjay Kumar Bhat (PW-15).
8. The trial court recorded statement of the accused, who produced S. Butta Singh and S. Gurcharan Singh as defense witnesses. Learned trial court after appraisal of the evidence and record, acquitted the accused holding that 'prosecution case fails beyond any shadow of doubt' and giving benefit of doubt to the accused. Hence, this appeal against acquittal.
9. Surinder Paul Singh, Constable No. 913154724 (PW-3) Ram Janam Paswan, Water Carrier No. 970360012 (PW-4) and Shiv Singh (PW- 5) have been cited as eye witnesses of the occurrence. Brief resume of their evidence is as under:
10. PW Surinder Pal Singh stated that on 23.10.2000 at 8.30 PM he was performing duty as 'Santri Guard'. Suddenly he heard the sound of firing from a tent. On hearing this sound he proceeded towards the tent and 5 saw the accused running away carrying a pistol and Havaldar Jamal Khan drenched in blood due to bullet shots. He informed his officers and everybody came on spot. On his reaching in the tent after hearing the sound of the firing he found Ram Janam Paswan there who was uttering, "Bhaga Bhaga" indicating that the accused is running away. He (witness) chased the accused for 8/10 steps but accused succeeded in running away. Accused had run away after killing the deceased but he does know why accused had killed the deceased.
11. Shorn of unessential, in cross-examination, he has stated that he was posted at gate No. 2 on the Eastern side of the camp. Besides this gate, the only other gate for entering the camp is located on the opposite side. Both gates are manned by guards of 1+4 strength. There were only four tents in the camp. Ram Janam Paswan is a Water Carrier. His company was stationed at Shidhra but he had come to Channi Himmat in place of a cook, who had gone on leave. The gate where he was performing his duties falls at a distance of 4/5 steps from the tent. He was not knowing as to who was sleeping inside the tent at the time when he had taken up his duty. There was no light at the gate but there was light inside the tent which was coming out of the tent also. He did not see anyone firing the shots. He had chased the accused for 10 steps on the road 6 but he could not chase him more as it was dark ahead. He was possessing a rifle and rounds. Rifle was not loaded as in CRPF, guards do not keep their rifles loaded. He did not raise any noise though Ram Janam was saying 'Bhaga Bhaga'. There were two officers in the camp office, namely, Raghuvans Kumar and Tejpal Singh, both Assistant Commandants who used to reside in the G.O. Mess. Ram Janam had also chased the accused for about 5/7 steps and then both of them returned back to the tent. Jamal Din was lying in his tent in mosquito net drenched in blood. Police had come on spot after 15/20 minutes. Police had taken him, Paswan and Shiv Singh to Police Station, Channi Himat. Police inquire from him and he immediately narrated everything. Police kept him in the Police Station for three days and three nights. Police used to threaten and scold them that they should state in the manner they like.
12. PW-Ram Janam Paswan has stated that he was sleeping in the tent at 8.30 in the night, the deceased and the accused were also accompanying him. He heard sound of "Thak-Thak", he got up and saw that accused was having pistol in his hand and was running away. He raised alarm saying "Bhaga Bhaga". In the meantime, santary (guard), Surinder Pal and others came on spot and shifted the deceased, who was drenched in blood, to the hospital.
713. In cross-examination, he stated that the accused is a driver of their battalion. Their Battalion is headquartered at Channi Himat. It has a building and 3/4 tents. The tent occupied by him, accused and the deceased was having four beds and if required, six beds used to be accommodated. None other than him, deceased and accused was occupying the tent on that day. There were four beds and one of them was lying vacant. He works as Water Carrier in the mess. The Battalion had had its food at about 6 p.m. on that day. He had gone to his bed by 6/6.15 p.m. as he was tired. Jamal Din was sleeping inside the mosquito net so he cannot say whether only mosquito net was there or Jamal Din was also sleeping. He cannot say when the accused had come inside the tent and slept. He had heard four sounds of 'Thak-Thak' and got up after hearing the forth sound. Electricity light was on in the tent at that time. As soon as he got up from the bed he saw the accused with a pistol in his hand inside the tent. The accused was wearing a shirt but he cannot say what he was wearing on his legs. Guard, Surinder Singh, was at a distance of about 8/10 feet from the tent. Guard had reached on spot first of all, whereas 10/15 personnel of the Battalion came after him. Raghuvansh Kumar and Tejpal Singh had come first of all. On asking of the Company Commander he told him that he has seen the accused running away with a 8 pistol in his hand. Both these officers had reached on spot in 10/15 minutes after the occurrence. He and Surinder Pal lifted the deceased to the vehicle. Police reached on spot 10/15 minutes after shifting of the deceased to hospital. Police took him and Surinder Pal to Police Station, Channi Himat. He and Surinder Pal had remained in the Police Station for 3/4 days and were released after that. Police had threatened and scolded them.
14. PW Shiv Singh, CHM No. 830720998 is cited another eyewitness of occurrence. Prosecution, however, declared him as hostile witness. He has stated that at 8.45/9 p.m. on 23.11.2000, he was informed about firing. He came up and found that crackers were being exploded in the park on other side of the road. Ram Janam Paswan told him that Gurmeet is chasing a terrorist, save him and also said to see Khan in the tent. Inside the tent he saw Khan lying on the bed inside mosquito net drenched in blood. He informed the higher officers, who dispatched Khan to the hospital. He did not see the accused. The accused and deceased were sharing the same tent. Paswan had said that Gurmeet has run away and he had chased him. He did not run after the accused. He had reached first on hearing the noise of crackers and the other officers reached after him. In cross-examination by APP, he stated that there was a tent in between the tent 9 occupied by the accused and that occupied by him. In cross-examination by the defense he stated that Ram Janam had said that accused has run after militants so he should also chased them with other personnel. On this he had made the company stand to. Police had taken him, Ram Janam and Surinder to Police Station and he had said that he had spoken the truth.
15. Mr. Rakesh Khajuria, learned AAG, argued that the evidence of PWs 3 & 4, read with the medical evidence rendered by PW-15 by itself is sufficient to connect the accused with the act of causing death of the deceased and the learned trial court has erred in rejecting the evidence of PWs 3 & 4. Mr. Khajuria argued further that the evidence led by the prosecution proves other important facts like surrender of the accused at Police Station, City along with the weapon of offence, allotment of the said weapon to the accused and matching of the spent cartridges and the bullets recovered from the crime scene with the pistol allotted to the accused. All these facts support the evidence of PWs 3 and 4 in proving involvement of the accused in the murder of the deceased beyond any shadow of doubt.
16. On the other hand, Ms. Mandeep Reen, learned counsel for the accused, supported the view taken by the learned trial court on the grounds similar to those 10 stated by the learned trial court in the impugned judgment. Ms. Reen submitted also that PW-5, even though he has been declared as hostile witness, has belied the evidence rendered by PWs- 3 & 4 and their evidence cannot be safely relied upon.
17. We have read carefully the depositions of PWs 3 & 4 both in their chief as well as the cross-examination. We have compared their versions inter se and with the version given by PW-5. The evidence rendered by these two witnesses inspires our confidence as we find underlying element of truth in their versions. We find no reason for entertaining any doubt and not believing that these two witnesses had witnessed the incident in the manner and to the extent as narrated by them before the trial court. We find no difficulty in believing that they have stated only what they could have and had seen and there seems no attempt on their part to falsely implicate the accused. Whatever stated by PW- 5 cannot be used in a way to belie or annul the versions of PWs 3 & 4 because PW-5 has stated also that there was another tent between his tent and the tent where the incident took place and he had reached on spot after having been informed about the incident, which in turn indicates that he had reached on spot after a gap of time. Undisputedly PW-5 neither had seen the incident nor had seen the accused at the place of occurrence.
1118. We are not convinced with the reasoning given by the learned trial court for disbelieving the evidence of PWs- 3 & 4, which is nothing more than conjunctures, surmises and speculations and undue importance to some contradictions which neither are real nor do they dislodge the central line of their evidence. We have noticed the error of law committed by the trial court in comparing the depositions of these two witnesses with their statements recorded under section 161 Cr. P. C. We cull out the relevant portion of the judgment to explain as to how learned trial court has committed error of law in this regard.
"PWs Ram Janam and Surinder Pal have not thrown any light with regard to the prosecution story and their evidence is also not worthy of any credit, because both the PWS as well as Shiv Singh were projected by the prosecution as eye witnesses as per their statements under sec. 161 Cr.P.C . Despite being detained illegally at police station Channi Himmat as has come in evidence for three nights, and putting them to threats and torture they did not speak blatant lie in the court as per their statements recorded under section 161 Cr.P.C. The prosecution did not declare Ram Janam and Surinder Pal PWs as hostile simple for the reason that under pressure from their superiors who come to court with them, they stuck to partial falsehood and they saw Gurmeet running away with the pistol. It is not believable because had they really seen Gurmeet running with pistol and told Raghuvansh immediately when the later reached on spot, the fact would have differently been mentioned in the written report lodged by Raghuvansh at the police Station more than one hour after the occurrence but that has not been done."
( at PP 27-28 of the judgment) 12
19. A plain reading of the aforementioned statement in the judgment of the trial court indicates that learned judge of the trial was of the view that PWs 3 & 4 had made false statements in terms of section 161 Cr. P. C. under threat of and torture by the police as they were detained in the Police Station for three days but they did not totally support their statements under section 161 while deposing before the court though they stuck to partial falsehood by stating that they saw the accused running away with his pistol. We may say that this is not the correct way of dealing with statements of prosecution witnesses recorded under section 161 at the trial of the case vis a vis the evidence given in the court.
20. As per section 162 Cr. P. C. a statement recorded by the Police under section 161 Cr. P. C. or any part thereof primarily cannot be proved or used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. However, in terms of section 162 Cr. P. C. read with section 145 of the Evidence Act, the legal value of the statement of a witness recorded under section 161 is like that of a previous statement of that witness any part whereof can be used for contradicting the witness at the time with his statement in the court in accordance with the procedure provided under 13 section 145 of the Evidence Act. Such a use is permissible to the prosecution, with the permission of the court (idiomatically by declaring the witness hostile), where the witness while deposing in the court does not support his version as given in the statement under section 161 and to the defense where the witness while deposing against the accused in the court goes beyond his version in the statement under section 161. What, however, is required for making use of a statement under section 161 for contradicting the witness at the trial of the case is that prosecution or the defense, as the case may be, should in the cross- examination of that witness draw his attention to those parts of his statement recorded under section 161 with which he is got to be contradicted. That the attention of the witness was drawn to such parts of his statement under section 161 must be clearly reflected in cross-examination and in that a duty is cast on the trial court to clearly mark such parts (or part) of the statement while recording cross-examination of the witness. If the witness admits that such a statement was made by him before the I.O. the matter ends there and question can be raised whether the statement made in the court was contradictory to the statement made before the I.O. If, however, the witness refuses to have made such a statement before the I.O. a further duty is cast on the prosecution or the 14 defense, as the case may be, to draw attention of the I. O. when he is examined as prosecution witness to those parts of the statement of the witness recorded under section 161 which were marked during his cross- examination in the court. If the I.O. states that such a statement was made by the witness before him then making of that statement before the I.O. shall stand proved and question of contradiction, if any, would arise. In a case where neither attention of the prosecution witness is drawn to any part of his statement recorded under section 161 Cr.P.C. nor recording of that part is proved by the I.O. or either of the two is not done question of contradiction cannot be raised.
21. Contextually, on reading depositions of PWs 3 & 4 in their cross-examination, it is clear that defense has not referred to their statements said to have been recorded under section 161 Cr. P. C. and much less has drawn their attention to any part of those statements with the intention of contradicting them or either of them with a particular version in that statement. Learned judge of the trial court seems to have at his level found or assumed some contradictions in the depositions of these witnesses recorded in the court and their statements said to have been recorded by the Police and drawn a conclusion that statements recorded under section 161 were untrue and given 15 under threat and torture by the Police and partial untruth was stated by them in the court. We reject the approach adopted by the learned trial court and hold that evidence of these witnesses recorded in the court should not have been compared with their statement under section 161.
22. We may refer to defense version and defense evidence as it would be apt to do so at this stage for the reason that PWs 3 & 4 have deposed as eye witnesses of the occurrence to the extent what was witnessed by them and the defense witnesses have sought raise a doubt that the death of the deceased might have been caused in a militant attack on the CRPF camp and not by the accuse. Plea of the accused in his statement under section 342 Cr.P.C. however, is of denial coupled with his say that he at that time was not present in the camp as he had gone to see a movie and on his return he was arrested by the Police. He has denied to have surrendered along with arm and ammunition at Police Station, City and has stated in this regard that he was taken to that Police station on next day of his arrest.
23. PWs Butta Singh and Gurcharan Singh respectively are maternal uncle and father of the accused and are residents of Punjab. Their evidence is that they had received telephonic information that there was some militant act in the battalion of the accused and three/four persons including the accused have been 16 arrested by the Police. They reached Jammu on 25.10.2000 and had found the accused in Police Station, Channi Himmat. It is also in their say that at the Police Station the Police in their presence had fired a shot from a pistol, which was kept on a table and after that allowed them to meet the accused.
24. It is noticed that nothing about his false implication after a militant act in the camp was mentioned by the accused in his statement recorded under section 342 Cr .P. C. Propounding of the militant act in the camp by the witnesses is too imaginary and trumpery and is rendered unbelievable by their say that in their presence Police had fired a shot from a pistol in the Police station. The witnesses, it appears, have made an attempt to explain the use of the pistol for ejecting projectiles (firing shots) but it is beyond perception that such an act would have been done by the police in presence of two family members of the deceased. In any case, evidence rendered by the defense witnesses is sufficient neither to rebut nor to cause any doubt about the evidence of eye witnesses, that PWs 3 & 4.
25. Evidence rendered by PWs 3 & 4 proves beyond any doubt that PW-4 Ram Janam Paswan, the accused and the deceased were sleeping on their respective cots in the same tent in their camp at Channi Himmat, Jammu. At about 8.30 p.m. PW-4, while he was sleeping, heard 17 four knock like sounds exactly as "thak-thak". He got up and saw the accused running away holding a pistol in his hand. He ran after the accused. Simultaneously, PW-3, Surinder Paul, who was on guard duty at the nearby gate of the camp, also heard the sound of firing from the said tent and ran towards the tent. He also saw the accused running away holding a pistol in his hand. Both of them returned in the tent after chasing the accused for a short distance and saw the deceased lying on cot drenched in blood.
26. Contextually, we have noticed the evidence rendered by PW-Dr. Sanjay Kumar Bhat and postmortem report, Ex.PW-SK, proved by him. Postmortem on the dead body of the deceased was conducted on 24.10.2000 at 11:00 a.m. Four fire arm wounds each of them 0.5 cms. round were found on the body of the deceased. In the opinion of the doctor cause of death of the deceased was hemorrhage and shock as a result of multiple injuries caused by projectiles of rifled fire arm, the injuries found on the body of the deceased were sufficient to cause death in the ordinary course of nature and time of the postmortem since death was about 14 hours.
27. The facts proved from the evidence of PWs- 3 & 4, read with the medical evidence rendered by the Doctor on their own strength are sufficient to 18 satisfactorily connect the accused with the death of the deceased having been caused by him by firing four shots through a pistol at the deceased. We nonetheless, have noticed the other evidence and proceed to take up and discuss the same.
First Information Report (FIR):
28. As per the prosecution case, FIR was lodged at Police Station, Channi Himmat by Raghuvansh Kumar, Assistant Commandant of the Battalion (PW-1) at 10 p.m. on the day of occurrence, that is, 23.10.2000. Evidence of PW-1 would show that he had reached at the place of occurrence at 8. 45 p.m. after getting information about shoot out in the camp. He had found four spent 9 MM cartridges near the cot of the deceased inside the tent. He immediately dispatched the deceased to the hospital. He was told by the guard on duty (PW-3) and PW-4 that accused Gurmeet Singh has run away after firing at the deceased. He lodged written information (Ex.PW-RK) at Police Station, Channi Himmat, where FIR was registered.
29. We have noticed that the evidence of PW-1 did not find favour of the trial court inasmuch as the learned court held unworthy of credit his say that PWs-3 & 4 had told him that accused had fled away after shooting the deceased and observed that he 'though tried his best to make improvement in this statement in the 19 court but he has utterly failed to do so when confronted with his written report given at the Police Station'. In discrediting the evidence of PW-1 learned trial court noticed that in his cross-examination he had admitted that it was not known to him as to 'who and how' shot Jamal Din.
30. Reasoning recorded by the trial court would show that learned judge created and fell into confusion in regard to the evidence rendered by PW-1. There as a matter of fact is no substantial contradiction in the narration of the incident given by PW-1 in the court and that stated by him in the FIR (Ex.PW-RK) lodged at the Police Station. It is admitted that PW-1 had witnessed neither the incident of shooting nor running away of the accused from the crime scene. It is also in his deposition that he had called all the personnel along with their weapons and the accused was found absent. Accordingly it was mentioned in the FIR lodged by him that it was not known as to 'how and who' shot at the deceased though Constable Gurmeet Singh (accused) staying in the same tent was found absconding from the camp. His having said in his deposition before the court that the guard on duty (PW-3) and PW-4 had informed him that Gurmeet Singh had run away after firing at the deceased and having not mentioned so in the FIR, cannot be taken as an improvement in his version sufficient to dislodge his evidence altogether.
2031. On reading the deposition of PW-1 in his prolonged cross-examination by the defense, nothing worthy of impeaching his version in regard to his having reached on spot immediately after the occurrence, having been informed by PWs 3 & 4 that accused ran away after firing at the deceased, having found four spent 9 MM cartridges near the cot of the deceased inside the tent, dispatching of the deceased to the hospital and having lodged written FIR (Ex.PW-RK) about the incident at the Police Station. Whatever stated by PW-1 in the court is corroborated by the contents of the FIR (Ex.PW-RK) lodged by him.
Surrender of the accused and recovery of the weapon:
32. Prosecution case is that shortly after the incident the accused had surrendered and produced a pistol at Police Station, City Jammu. Accused was arrested and possession of pistol obtained from Police Station, City. Evidence in this regard is to be found in the depositions of Hem Raj Sharma, ASI (PW-9), who at that time was posted at Police Station, Channi Himmat and Mohd. Aslam, Constable (PW-10), who was posted at Police Station, City Jammu.
33. PW-10, Mohd Aslam has stated that on 23.10.2000 the accused came at that Police Station, City, he handed over a pistol to ASI Jagan Nath and stated that he has committed murder of his Havaldar. ASI Jagan Nath 21 prepared a seizure memo and obtained his and that of Mohd Shafi (Munshi)'s signatures on it. The witness proved contents of the seizure memo as Ex.PW-MA and also indentified the pistol at the time of recording his deposition in the trial court. As per the contents of the seizure memo the number of the pistol produced by the accused was T. 14700 which was loaded with five live 9 MM cartridges in its magazine. In cross- examination he stated further that accused had come at Police Station at about 7/8 p. m. and he was arrested in terms of section 54 Cr. P. C.
34. PW-9, Hem Raj Sharma has stated that he had accompanied the SHO to Police Station, City on 23.10.2000. Moharar Constable, Mohd. Shafi of Police Station, City had produced one 9 MM pistol loaded with five rounds, which were seized by the SHO. The witness has proved two seizure memos which have been marked as Ex. PW-HR and Ex.PW-HR-1. In the cross-examination, this witness has reiterated that he had accompanied SHO Police Station, Channi Himmat only once on 23.10.2000, he has reiterated to have signed both the seizer memos, he has stated that he had gone to Police Station, City at about 10/11 and on the same day accused was brought from Police Station, City to Police Station Channi Himmat. He has also stated in the cross-examination that both the seizer memos relate to recovery of same pistol, and five live 22 cartridges. He has also stated that the pistol was seized at Police Station, City.
35. We have noticed as it was similarly noticed by the learned trail court also that two seizer memos (Ex. PW- HR and Ex.PW-HR-1) were prepared by the I.O. in regard to taking into possession of the pistol, five live cartridges and a seizer memo whereby this pistol and cartridges were seized by police of Police Station, City. Same set of police personnel have witnessed these seizer memos. One of these seizer memos is dated 23.10.2000 and the other is dated 24.10.2000. As against this, it is clearly stated by PW Hem Raj, ASI , who has proved both these seizer memos and is the only witness in this regard that he had gone to Police Station, City only once on 23.10.2000 in the morning at 10/12 when seizer memo Ex.PW HR was prepared and accused was brought to Police Station, Channi Himmat.
36. We have noticed that contents of aforementioned two seizer memos are identical, whereas one of them is dated 23.10.2000 and the other dated 24.10.2000. No explanation about this ambiguity is available in the deposition of PW Hem Raj. Reliable explanation in this regard could have given by none other than I.O. (SHO), who has prepared these seizer memos but I. O. has not been produced.
2337. Learned trial court has disbelieved the prosecution versions in regard to surrender of the accused and production of pistol with five live cartridges at Police Station, City, confession by the accused about commission of murder of his colleague and taking into possession of the pistol and cartridges by I.O. of the case. Learned trial court has gone to the extent of taking the view that evidence in this regard was fabricated and was an attempt to mislead the court on very important aspect of the case.
38. We, on careful analysis of the evidence, however, are not inclined to concur wholly with the view taken by the learned trial court. It is noticed that the admissible part of evidence in this regard has two aspects. One, the surrender of the accused along with the pistol loaded with five cartridges at Police Station, City and the other, taking over of the accused and the arm and ammunition by I. O. of the case from Police Station, City. The confession part, however, is not admissible as it is hit by section 25 of the Evidence Act.
39. Evidence in regard to first aspect has been provided by PW-Mohd Aslam, Constable read with the seizure memo Ex.PW MA proved by him. This witness has successfully cleared the scrutiny in cross-examination by the defense and we find no reason to feel any difficulty in accepting his evidence. It is proved from 24 his evidence that the accused had surrender at Police Station, City on 23.10.2000 before ASI Jagan Nath of that Police Station, had produced pistol bearing No. T.14700 with five 9 MM cartridges loaded in its magazine. Learned trial court has disbelieved his evidence for the reason that had it been so prosecution in order to prove its case necessarily would have produced ASI Jagan Nath as witness before the court and its non production makes the story of surrender and confessional statement of the accused highly doubtful. The approach of the learned trial court cannot be said to be legally correct. Correct it is that ASI Jagan Nath, even though cited as witness, has not been produced. There is, however, no requirement in law to produce a particular number of witnesses or a particular witness for proving a relevant fact at trial. Evidence of even a single witness would suffice to prove a fact provided the witness is reliable and inspires confidence of the court. Evidence of a witness in regard to a fact cannot be disbelieved only for the reason that the other witness or witnesses to that fact have not been produced. Principle to be applied in such a situation would be whether the other witness or witnesses to that fact has/have been deliberately held back and by not producing him/them prejudice has been caused to the accused. What matters in proving a fact at trial is the quality and not quantity of evidence 25 produced before the court. Truthfulness of the version of a witness is tested in his cross-examination and can be relied upon if not found unreliable. PW-Mohd Aslam has been cross-examined by the defense. There is nothing to suggest that he has made false statement in the court or was a planted witness nor do we find any substance in assumption that the factum of surrender was fabricated by the prosecution. We are not inclined to disbelieve his deposition simply for the reason that PW-Jagan Nath has not been produced because neither it has been suggested nor it can be inferred that PW Jagan Nath has been deliberately held back or that had he been produced position would had been otherwise.
40. We, for the aforementioned, are inclined to rely upon the evidence rendered by PW-10 Mohd Aslam, read along with seizer memo (Ex.PW MA) proved by him, which proves beyond any doubt that on the day of occurrence itself accused had surrendered at Police Station, City and had produced pistol No. T.14700, which was having five 9 MM cartridges in its magazine. An attempt was made by learned counsel for the accused to create a doubt about the truthfulness of the evidence of this witness by pointing out from his cross-examination that the accused had appeared in that Police station at 7/8 p.m. contrary to the evidence of PWs 3 & 4 that the incident had taken place at 8.30 26 p.m. We, however, feel this discrepancy in the time is too insignificant to create any doubt about the accused having surrender at Police Station City immediately after the incident.
41. We, nonetheless, feel difficulty in arriving at a definite conclusion on the basis of evidence of PW-9 Hem Raj Sharma, ASI about taking over of the accused and the arm and ammunition from Police Station, City by the I. O. of the case as PW-9 has created unexplainable situation by proving two seizer memos, Ex.PW HR and Ex.PW HR-1, in respect of the same pistol and cartridges, one dated 23.10.2000 and other dated 24.10.2000 and by reiterating that he had gone to Police Station, City with SHO, Police Station, Channi Himmat only once on 23.10.2000 at about 10/11 in the morning and further that he had signed both the seizer memos, which relate to recovery of same pistol and five cartridges. The witness has failed to explain the picture clearly and his evidence, therefore, cannot be held sufficient to prove the factum of transfer of the arms and ammunition produced by the accused at Police Station, City to Police Station, Channi Himmat. We, however, do not find any sufficient reason for supporting the view taken by the learned trial court that evidence rendered by this witness has in any manner caused any aspersion on the evidence in regard to the occurrence rendered by PWs 3 & 4 or 27 surrender of the accused along with weapon at Police Station, City rendered by PW-10, Mohd Aslam.
Seizer of articles from the crime secne:
42. As per the evidence rendered by PW-1, Raghuvansh Kumar and PW-2, Tej Pal Singh both Assistant Commandants of the Battalion and PW-6, Allaha Daad, Head Constable, immediately after registration of the FIR at Police Station, Channi Himmat, Police had come on spot and effected seizers of various articles including inter alia four spent cartridges and two bullets and a blanket from the cot of the deceased.
Seizer memo Ex. PW TP proved by PWs 1 and 2 relates to seizer of the spent cartridges and the bullets.
What is proved from the evidence of these two witnesses is that Police had seized four spent 9 MM diameter bearing Nos. KF93 2Z 9.MM, KF 932Z 9.MM, KF 92 2Z 9.MM and KF 84 2Z 9.MM and two bullets from inside the tent in which the occurrence had taken place. Seizure memo, Ex. PW-AD relates to proved by PWs. 1 and 6 relates to the seizure of the blanket from the cot of the deceased.
43. It is noticed that the evidence of PWs 1 & 2 in so far as it relates to seizer of aforementioned spent cartridges and bullets and the blanket was not under any challenge by the defense and as a matter of fact has been relied upon by learned trial court though mostly in favour of the defense and for rejecting prosecution 28 version. On the basis of the evidence of these two witnesses, learned trial court has found doubtful or rejected the prosecution version for the reason that the spent cartridges should not have been lying under the cot of the deceased because in the natural course they should have scattered at least five feet away from the body of the deceased and therefore the probability was that the deceased was not shot at on his bed and the spent cartridges were planted under his bed by someone afterwards. Learned trial court also noticed that it was admitted case of the prosecution and the medical evidence is that four fires were shot at the deceased, four bullets had entered and exited out of body of the deceased but only two bullets were recovered from the tent whereas nothing is known about other two bullets and therefore, learned trial court entertained a suggestion that the deceased was not shot on the bed.
44. The view taken by the learned trial court neither is fully supported by the evidence nor is convincing and plausible. As per the seizer memo (Ex.PW TP) four spent cartridges were found lying near the bed of the deceased. In his cross-examination, PW-1 Raghuvansh Kumar has explained that the spent cartridges were found lying in the passage between the beds inside the tent. Learned trial court seems to have been swayed by statement in the FIR which was lodged by PW-1 that 29 spent cartridges were found under the cot on which the deceased was found lying with bullets injuries. Whatever stated in the court is to be preferred over what was stated in the FIR unless the two versions are totally contradictory because the contradiction in that case may cause a doubt about the version given in the court. That apart, much importance cannot be given to the exact location of the spent cartridges inside the tent containing four to six cots particularly having regard to the fact that there would have been some activity inside the tent involved in shifting the deceased from tent to the hospital before the police had come on spot. Likewise, not much importance can be given to the failure of the investigating agency to locate the remaining two bullets in face of the clear evidence that four sounds of firing were heard by PW- 3, the deceased was found lying on his bed on the cot drenched in blood by PWs 3 and 4, four bullet wounds with corresponding exist wounds were found by the doctor on the body of the deceased and four spent cartridges were found inside the tent. To take a view that the deceased was shot at somewhere else than on his bed and spent cartridges were planted under his bed is too imaginary than credible. Such a view in turn would mean total disregard and rejection of the evidence of PWs 1, 2, 3 & 4 that deceased was found lying on his bed and lifted from there to the hospital.
30We are no doubt confronted with a situation that there is no explanation in regard to the remaining two bullets as only two out of the four bullets having entered and exited from the body of the deceased were recovered from the place of occurrence. As the I.O did not appear as a prosecution witness so no explanation in this regard is available. We, however, cannot draw inference adverse to prosecution version on this score alone as there is clinching evidence in the statement of PW-4 and the evidence of the Doctor that four fires were shot at and there were four entry and corresponding exist wounds on the body of the deceased. Prosecution evidence cannot be discarded only due to I.O's. unexplained failure to recover some of the bullets from the crime scene.
Issuance of Pistol and cartridges to the accused:
45. PW-1, Raghuvansh Kumar at the relevant time was posted as Assistant Commandant of the Battalion and was stationed at Channi Himmat where the incident took place. He has stated that 9 MM pistol was issued to the accused. He has proved as Ex.PW RK-1, a certificate issued by him to the I.O. in this regard. As per this certificate 9MM pistol with butt No. 55 and body No. T 14700 and ten live rounds (cartridges) were issued to the accused from Kote of the HQ Coy as per the Kote arms/ammunition issue register as the 31 accused in his capacity as driver was authorized thereto.
46. Learned trial court has rejected the evidence of PW-1 in regard to issue of the pistol and cartridges to the accused as also the certificate issued by him for the reason that the original record or certified copy thereof was not produced and that certificate has no value in the eyes of law and is inadmissible as evidence as per section 64 and 65 of the Evidence Act. Learned trial court has also stated in the judgment that 'there is a general statement that Drivers in CRPF were issued a pistol but nobody tells as to whose driver the accused was' and further that it has been seen that in all Armed Forces or Para Military Forces pistols and revolvers are issued to officers against proper receipt and the Constables are not authorized for issue of pistols.
47. We, having heard leaned counsel for both the sides, are not persuaded to agree with the view taken by the learned trial court as the same is based on surmises and conjectures and is not legally correct. Under section 59 of the Evidence Act, all facts, except the contents of the documents can be proved by oral evidence. Under Section 61 of the Evidence Act contents of the documents may be proved by primary or secondary evidence. Fact required to be proved was that the pistol in question was issued to the accused.
32The say of PW-1 that 9 MM pistol was issued to the accused itself is sufficient to prove this fact. PW-1 is an Assistant Commandant of the Battalion so there should be no reason for not believing in his say in this regard. He has supported his say by a certificate issued by him to the I. O. on the basis of arms/ammunition issue register and in the course of his cross-examination has shown his readiness to produce before the court the official record on the basis whereof this certificate was issued by him. View taken by the learned trial court that pistols are issued only to the Officers and not to the Constables is without any basis. In face of the readiness shown by the witness that he can produce the official record the better course would have been to call the same instead of rejecting the evidence of the witness which in itself is sufficient to prove the issue of the pistol and the ammunition to the accused.
Forensic evidence
48. The evidence rendered by ballistic expert, PW-14 Sarwar Hussain Bukhari, in his deposition before the court and read with report No. 978/FSL/2K dated 27.11.2000 issued and proved by him would show that aforementioned pistol, four spent cartridges and two bullets were examined by him on 9.11.2000 and in his opinion the aforementioned pistol was in working order and the aforementioned spent cartridges and the bullets were fired through the said pistol and the 33 range of the firing was 24 inches from the muzzle. We have carefully analyzed the evidence of PW-14 and find no hesitation in relying upon the same. Evidence rendered by Mr. Bukhari established the matching of the four spent cartridges and the two bullets recovered from the crime scene with the pistol No. T- 14700, which was allotted to the accused in his capacity as a Driver.
49. We may, thus, conclude that the prosecution in this case has succeeded in proving that on 23.10.2000 at 8.30 p.m. deceased was shot at four times when he was sleeping on his cot inside a tent at the camp of the Battalion at Channi Himmat, Jammu. Accused was seen running away from inside the tent carrying a pistol in his hand and the deceased was found lying on his cot drenched in blood. Shortly after the incident the accused surrendered at Police Station, City along with pistol bearing No. T 14700 having five live cartridges in its magazine, which he produced before the Police. The deceased was immediately shifted to the hospital where he was declared as brought dead. The cause of the death was hemorrhage and shock as a result of projectiles fired from rifled fire arm. Besides, it has been proved that pistol No. T 14700, which the accused had produced at Police Station, City, had been issued to him from the Kote of his battalion, the said pistol was in working order and the four spent 34 cartridges, which were found near the bed of the deceased were fired through the said pistol and the holes in the blanket recovered from the cot of the deceased had been caused due to passage of bullets.
50. As we have said hereinabove also, running away of accused from inside the tent where the deceased was lying on the cot drenched in blood supported by the medical evidence by itself is sufficient to connect the accused with causing death of the deceased. Attending circumstances, which have been sufficiently proved, like his having surrendered at Police Station, City along with the pistol which had been allotted to him by his battalion and opinion of ballistic expert that spent cartridges found near the cot of the deceased were fired through the said pistol further connect the accused with the killing of the deceased and lead to one and the only one hypothesis that it was accused who shot dead the deceased by firing at him through his service pistol. We are not inclined to agree with the conclusion arrived at by the leaned trial court as we are of the view that evidence rendered by PWs 1 & 2 who had seen the accused running from the tent in which deceased was shot at supported by the medical evidence cannot be ignored and rejected on the basis of minor defects in evidence not going to the root of the case.
3551. We thus find a strong merit in this appeal and accept the same. The impugned judgment of acquittal rendered by the learned trail court is set aside and we hold that the prosecution has succeeded in proving the charge against the accused.
52. We, therefore, convict the accused under section 302 RPC and 30 Arms Act and having regard to the facts of the case sentence him to rigorous imprisonment for life and to pay a fine of Rs. 10,000/- in proof of offence under section 302 RPC. Likewise, we sentence the accused to imprisonment for period of five year and to pay a fine of Rs. 5000/- in proof of offence under section 30 Arms Act. In default of payment of fine, he shall undergo imprisonment for a further period of one year and six months respectively. Imprisonment for both the offences shall commence simultaneously. Bail bonds of the accused stands cancelled. He shall appear before the trial court within two weeks' time hereafter for undergoing the sentence. In case of his failure, learned trial court shall proceed in accordance with law so that sentence is executed.
53. Registry shall remit back the record along with a certified copy of this judgment.
(Janak Raj Kotwal) (Mohammad Yaqoob Mir)
Judge Judge
Jammu
10.12.2015
Karam Chand*
36
This judgment is pronounced by me at Jammu in terms of Rule 138 (4) of Jammu and Kashmir High Court Rules, 1999.
(Mohammad Yaqoob Mir) Judge Jammu:
10.12.2015