Jammu & Kashmir High Court
State Thr. Sho P/S Bishnah vs Kamal Kumar & Anr. on 30 October, 2017
Bench: Alok Aradhe, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Cr. Acq. Appeal No.34/2017
Date of order: 30.10.2017
State Th. P/S Bishnah V. Kamal Kumar & Anr.
Coram:
Hon'ble Mr Justice Alok Aradhe, Judge
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. Sanjeev Padha, GA.
For respondent (s) : Mr. Rajnesh Oswal, Advocate.
Per-Alok Aradhe, J:_ This Criminal Acquittal Appeal has been filed against the judgment dated 27.08.2016 by which the respondents have been acquitted in respect of offence under Section 302 RPC.
2. The prosecution story in nutshell is that an FIR No.140/2007 was registered on 14.12.2007 on receipt of an information by the Police Party from reliable source that at Harsa Dabbar, Tehsil Bishnah, near Ravi Kumar Gupta's store, dead body of Rakesh Kumar S/o Raj Kumar R/o Ward No.11, Bishnah, is lying. Thereupon the First Information Report was lodged and the investigation commenced. It is the prosecution's case that on 12.12.2007, deceased had disappeared from his house in respect of which missing report was lodged by his father on 13.12.2007. The deceased used to play cards with accused Kamal Kumar and Bhajan Lal (respondents herein) for the purpose of gambling, who had acquaintance with each other. The deceased had developed intimacy with one Mst. Ritu, who was niece of accused Kamal Kumar, who had rebuked deceased not to stalk her following, otherwise he would meet with dire consequences. In Cr. Acq. Appeal No.34/2017 Page 1 of 5 his disclosure statement accused Kamal Kumar disclosed that deceased had fallen in love with said Mst. Ritu Devi and he tried to persuade deceased to desist from following Ms. Ritu. On 12.12.2007, they called deceased for the purpose of having gambling game and in furtherance of common intention they took him near the godown of Ravi Kumar at Harsa Dabbar, there they strangulated him. Accused Bhajan Lal gave leg blows on the testicles part of the deceased, who fell down, then Kamal Kumar caught hold of deceased from neck and they strangulated him to death and thereafter they fled away. In his disclosure statement accused Kamal Kumar further stated that on 13.12.2007, they again went to the scene of occurrence to ensure that the deceased had died.
3. During investigation, the prosecution in order to prove its case recorded the statements of PW Mangal Dass and PW Kamaljit before the Judicial Magistrate First Class, and also produced Kuldeep Kumar before the Judicial Magistrate First Class on 03.02.2008 and 04.02.2008 for recording statement under Section 164 of the Code of Criminal Procedure. Thereupon the accused/respondents were apprehended.
4. Learned counsel for the appellant has stated that the trial Court has failed to appreciate the oral and documentary evidence available on record in its correct perspective which has resulted in erroneous findings and the consequent judgment. It is further submitted that there was sufficient material on record to connect the respondents with the commission of the alleged offence. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial Court.
5. PW Kamaljit Singh, an eye witness, stated that on 12.12.2007, he along with PW Mangal Dass had been to Bishnah and on way back, at around 5.45 to 6 pm, as they reached near fireworks go down, he saw accused beating one boy. Accused/Respondent No.1 had caught him from neck and Cr. Acq. Appeal No.34/2017 Page 2 of 5 thereupon PW Mangal Dass shouted towards them, on which accused fled away. He went on spot and found that the deceased was Rakesh Kumar. He got terrified, so did not report the incident to the police. In his cross- examination, the aforesaid witness has not given any satisfactory statement for not lodging the First Information Report in the Police Station.
6. PW Mangal Dass, another eye witness, in his statement, has stated that he only identified accused/respondent No.1 herein and the other accused is not known to him. He also did not know the deceased. When he visited Police Station he came to know the name of the deceased. In his cross- examination, the aforesaid witness has stated that he gave statement to the police at the beginning that he was taken to Bishnah Court and Police party had come to him for telling him that he has to make a statement and it was policemen who read out names of accused and that there is on more person who is an accused besides accused/respondent No.1. Thereupon, his statement under Section 164-A of the Code of Criminal Procedure was recorded. The prosecution gives hinges upon the testimony of these two eye witnesses.
7. From scrutiny of the evidence of PW Mangal Dass and PW Kamaljeet who are the star witnesses, have allegedly claimed to have witnessed the occurrence and they chose not to report and inform the police while the Police Station Bishnah was at a distance of 10 minutes from the place of occurrence and on 24.12.2007 they claimed to have informed police which aspect is denied by the Investigating Officer. Both the aforesaid witnesses have been examined under Section 164-A of the Code of Criminal Procedure on 13.02.2008 i.e. approximately after two months of the occurrence. No reason has been assigned for delay in recording the statements of the aforesaid eye witnesses. PW Mandeep Kumar, who claims to have last seen the deceased in the company of accused, he too has Cr. Acq. Appeal No.34/2017 Page 3 of 5 not informed the police immediately after the disappearance of deceased. His statement was recorded after three weeks. Thus, the delay in recording the statement of important witnesses who were eye witnesses renders their testimony unreliable. Besides that, the prosecution in order to prove its case ought to have examined Mst. Ritu Devi. However, her statement was neither recorded under Section 161 of the Code of Criminal Procedure nor she was produced during trial.
8. Besides that, from close scrutiny of two eye witnesses, namely, Kamaljeet and Mangal Dass, it is evident that there is contradiction in their testimony. They have admitted in their cross-examination that they never knew the accused and when they went to Police Station, the policemen told them about accused. PW Mangal Dass stated that he named Bhajan Lal, accused/respondent No.2 at the behest of Police Party and he would not have made any statement unless told to do so by police. It has further been admitted by him that the incident had taken place during winter and it was not fully dark. It has further been stated that when they tried to catch the accused, he ran away. It is also pertinent to mention here that the statements of the aforesaid witnesses were recorded one day prior to filing of charge-sheet i.e. on 13.02.2008. PW Arjun Singh Chib, who is the Investigating Officer has failed to explain the delay in recording the statement of witnesses under Section 161 of the Code of Criminal Procedure. There is no evidence on record which connects the respondents with the alleged commission of offence.
9. The trial Court has recorded the findings, which are based on careful scrutiny of the evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial Court is also a reasonable view of the evidence on record and Cr. Acq. Appeal No.34/2017 Page 4 of 5 the findings recorded by the trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124.
10. From perusal of the judgment of the trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this Acquittal Appeal is made out. In the result, the appeal fails and is hereby dismissed.
(Tashi Rabstan) (Alok Aradhe)
Judge Judge
Jammu
30.10.2017
Surinder
Cr. Acq. Appeal No.34/2017 Page 5 of 5