Chain vs State of J & K

we have heard Mr. Sunil Half, learned counsel appearing for the appellant and Mrs. Seema Sheikher, Government Advocate, for the

respondents.

This Criminal Appeal is directed against the judgment and order dated 03.01.1991 passed by Sessions Judge, Jammu, by which he has

convicted the accused appellant, Chain, for committing the murder and sentenced him to imprisonment for life and a fine of Rs. 500/ in proof of

offence under Section 302 RPC.

Facts that culminated in the prosecution of the accused depicted in narration are that, the deceased, Ram Dass, had put Haria, the father of the

accused, in possession of land held by him when shifted to village Kotar to settle on the land provided by his inlaws. On the death of Haria,

accused and his brother alongwith their mother started living in the house of the deceased consisting of two rooms. When Jatoo, brother of the

accused, got a portion of the land transferred in his name as owner under the Agrarian Reforms Act and the deceased came to know about it, he

returned to the village to assert his right. The deceased resided in one of the rooms of his house as the other was occupied by the accused and his

brother. The accused, however, did not like the return of the de ceased to the village to reaffirm his rights over the land, which he had given to their

father, Haria, since died, on his own. In pursuance of some altercation that ensued between the deceased and the accused, the latter inflicted blows

with a 'Darat' held by him on the neck of the deceased and committed his murder. PWs, Sardaro alias Sardar Singh and Gian Chand, who

repaired to the scene on hearing the exchange of hot words and witnessed the occurrence. On a report lodged by PW, Dhuni Chand, Chowkidar

and Balwant Raj about the incident, led to the registration of the case against the accused under Section 302 RPC. After the conclusion of the

investigation, the case was finally sent to trial for offence under Section 302 RPC. The learned Trial Court, after the conclusion of the trial, found

the accused guilty of offence of murder an sentenced him accordingly.

Mr. Hali, learned counsel appearing for the appellant, vehemently urged that the evidence provided by the eye witnesses is highly contradictory,

discrepant and at variance in material particular. Their evidence is not in accord with the medical testimony and, therefore, it is qualitatively and

quantitatively insufficient to warrant the conviction on the accused. His further contention is that, even the circumstantial evidence including the

alleged extrajudicial confession of the accused, discovery of weapon of offence and presence of blood stains on the shirt of the accused, besides

motive, do not provide a nexus between the accused and the commission of the offence and, thus is inconsistent with the hypothesis that the

accused alone could have killed the deceased. Lastly, it was submitted by Mr. Hali that there being no reliable, firm evidence assembled by the

prosecution, it would be highly unsafe to hold the accused guilty of committing murder of the deceased and record his conviction.

Mr. Seema Sheikher, learned Govt. Advocate, on the other hand, argued that the direct evidence provided by the eye witnesses coupled with

medical testimony, further supported by incriminating circum stances, manacle the accused inescapably in the commission of the crime. That the

circumstances connecting unbroken chain of links lead to only one inference that the accused committed the crime.

In this case, the evidence relied upon by the Tehsil Court is both direct and circumstantial. Direct evidence consisting of the statements of PWs

Sardaro alias Sardar Singh and Gian Chand, who happened to reach on spot first in point of time on hearing the altercation between the accused

and the deceased. Both these witnesses happened to be from the same village. On the fateful day, Sardar Singh, PW, while working in his field

near the house of the deceased, when got attracted by the altercation in the house of the de ceased, on reaching the house of the deceased, the

witness found the accused possessing a 'Darat' and inflicted blow on the deceased on his neck. Before he could reach near the accused, another

blow with a Darat was given to the deceased, as a result of which the deceased fell on the ground. On seeing the witness conning nearer, the

accused proceeded towards him and threatened, as a result of which, he alongwith PW, Gian Chand, had to with draw. The accused thereafter

rubbed the Darat with the ground and wiped off the blood stains. The accused thereafter made a slip to nearby jungle. When this witness alongwith

Gian Chand, PW, went nearer to the deceased found him in a pool of blood and dead. He informed Balwant Raj his brother, who reported to

Sarpanch, Mir Mohd. Whereas Gian Chand informed the Numberdar and other villagers who also reached the spot. The witness further stated

that the accused later on was brought from the nearby jungle and handed over to Mir Mohd Sarpanch. By the time, the police party had also

reached the village and the same day and arrested the accused. The accused made a disclosure statement to the police during investigation while in

custody, which led to the recovery of 'Darat', the weapon of offence, at his instance. So is affirmed in the testimony of PW, Gian Chand, another

eye witness of the occurrence. He also stated to have proceeded towards the house of the deceased on hearing the noise. When he drew near to

the house, found PW, Sardaro alia Sardar Singh, near the place of occurrence. He witnessed the accused inflicting a 'Darat' blow to the deceased.

The accused thereafter rubbed the blood stains on the Darat with the ground and fled away. When he alongwith Sardaro, PW, reached near the

deceased, found him dead due to the injuries caused by the accused with the Darat. According to this witness, the accused happens to be the son

of brother of the deceased and the latter had given his landed property to his brother, father of the accused, in order to boost their financial

conditions.

The evidence provided by these witnesses, namely PWs, Sardaro alia Sardar Singh and Gian Chand, is consistent, natural, straightforward,

convincing, reliable and trustworthy. Nothing inherently improbable or unnatural has been trotted out from the pungent crossexamination to cause a

speck of doubt on their veracity. The evidence provided by the eye witnesses with regard to the manner in which the crime has been committed by

the accused, the weapon of offence used by the accused in causing the murder of the deceased, the place of occurrence and the presence of the

witnesses on spot at the relevant time remained uncontroverted and unchallenged in their cross examination, it was not even suggested to the

witnesses with regard to their interest in the prosecution of the accused so as to render their testimony tainted and smack of partisan. This makes it

abundantly clear that both these eye witnesses are independent, neither interested in the plaint or bore any animosity towards the accused. Their

evidence support to their testimony is found in the evidence of Balwant Raj, who stated to have been informed by PW, Sardaro, immediately after

the occurrence that the accused had killed the deceased. Thereupon, he reported to Sarpanch, Mir Mohd. about the occurrence and the latter also

affirmed in his evidence that Balwant Raj and PW Hukumi apprised him that the accused had killed the deceased. It was then PW, Mir Mohd.

who had sent two persons in search of the accused in the jungle, when reached the place of occurrence. The statements of these witnesses further

lend support to the evidence provided by the eye witness, PW Sardar Singh, and rendered their evidence credible and believable. The Apex Court

in the case of Tarjinder Singh vs. State of Haryana, AIR 1994 SC 503, has held that where there is no dispute regarding presence of the witnesses

on the spot and their testimony is corroborated by medical and other circumstantial evidence, they are liable to be accepted.

Apart from that, in the chain of circumstantial evidence, relied upon by the Trial Court, their is the extrajudicial confession of the accused. The

accused as apprehended by the villagers in the jungle and when brought to the place of occurrence, many people had assembled there prior to the

arrival of the police. PW, Mela Ram, when asked the accused about the murder of the deceased, the latter confessed that he had killed the

deceased with a Darat. It is also in his evidence that the police had not arrived there by that time. The police, according to him, reached late at

night. In the absence of any suggestion to the witness in his crossexamination, as to whether this confessional statement, elicited from the accused

under coercion or duress, such a confessional statement is asked to have been made voluntarily. In the like manner, it is found in the evidence of

PW, Mir Mohd, Sarpanch, that the accused had also made a voluntary confessional statement to him before the arrival of the police as to the

manner in which he killed the deceased. No suggest was even put to this witness of having secured the confession under duress. Even voluntary

confession of the accused about the causing of murder of the deceased made to PW, Mir Mohd. stood affirmed i the evidence of PWs, Hukumi

and Bando Ram.

It has, thus been sufficiently proved in the testimony of both these witnesses that the confess made by the accused was voluntary, when particularly

their evidence to this effect remained uncontroverted. An extrajudicial confession, if satisfactorily proved to have been voluntarily made, is

admissible in evidence as is held in case Baldev Raj vs. State of Haryana AIR 1991 SC 37. It must, therefore, be considered in the over all

context of the prosecution case and the evidence on record.

In order to consider such contention worthy of belief, regard must be had to (i) the person to whom it was made; (ii) to the connection, if any, of

the accused with him; (iii) the occasion or reason for the accused to go and make such a confession to him and (iv) the circumstances in which it

was made. Where the extra judicial confession is proved by an independent witness, who bore no animosity against the appellant, as in the instant

case, there is no justification for disbelieving the evidence of such witness, particularly when extrajudicial evidence of the eye witnesses and the

recovery of the weapon of offence at the instance of the accused. Undoubtedly, extrajudicial confessions are not usually considered with favour,

but that does not mean that such a confession came from a person, who has no reason to state falsely and to whom, it has been made in

circumstances, which tend to support his evidence, should not be believed.

The next circumstances, de pended upon by the prosecution before the Trial Court, is the discovery of the weapon of offence, a 'Darat' in

pursuance of the disclosure statement made by the accused. Mela Ram and Mir Mohd. PWs happened to be the attesting witnesses of both the

disclosure and discovery memos RXPW MR/1 and EXPW MR/2. Their evidence is to the effect that the police when interrogated the accused on

the same night, the accused disclosed the place where he had kept the 'Darat' and got discovered 'Darat1 from the Almirah of his room. The

contents of disclosure and discovery memos stood proved in the testimony of the attesting witnesses. So is also confirmed in the testimony of PW

Sardaro and Investigating Officer, Mohd. Taz The discovery of 'Darat' had been identified by PWs, Saradro and Gian Chand, eye witnesses of the

occurrence. The Darat, as per report of the Chemical analyses dated 27.03.1986, was found to have been stained with human blood. The

discovery of the Darat, a weapon of offence, in pursuance of the disclosure statement made by the accused, coupled with the report of the

Chemical Examiner that it was stained with human blood, provided connecting link between the accused and the crime and, thus conclusively

proved the circumstances.

Autopsy was conduct on the dead body of the deceased by Dr. Pardeep Kumar and found as many as four injuries on the person of

deceased. In the opinion of Dr. Pardeep Kumar, the cause of death was the haemorrhagic shock consequent upon the injury No. 1 which reads as

under :

A horizontally placed incised wound 7 cm x 2.5 cm x 4 cm on upper part of the neck towards and right side cutting through the thyroid certilage

on right side and anterior side on 3/4th of the circumference. This wound was also cutting right common carotid artery and jugular vein alongwith

other small vessels.

According to Dr. Pardeep, all these could be possible by Darat, EXP7, and was sufficient, in the ordinary course of nature, to cause the death.

In crossexamination, doctor ruled out the possibility of treatment of injury No. 1, as the major vessels have been cut, when suggested. The manner

in which the assault is committed, the weapon of offence used in the commission of the assault, the place of infliction of injuries, when all taken

together, lead to the only conclusion that the accused intended to cause the death of the victim by inflicting injuries with the Darat on the vital part

of the body.

Mr. Sunil Hali, advocate appearing for the appellant, strenuously debated that the accused had inflicted tow injuries with a 'Darat', as is found

in the evidence of eye witnesses, and their evidence being in conflict and at variance with the medical testimony does not bear a ring of truth. His

further contention is that the doctor has given as many as four injuries on the person of the victim in the autopsy report. But it is in the evidence of

PW, Sardar Singh, an eye witness, when he reached the place of occurrence on hearing the hot altercation between the accused and the deceased,

he found that the accused possessing a Darat, gave a blow to the deceased on his neck. It is also in his evidence that when he drew nearer to the

accused, the latter gave another blow with a Darat on the neck of the deceased. This witness was followed by Gian Chand, another eye witness of

the occurrence at that time. In this context, it may be pointed out that the possibility of the accused having inflicted the blows to the deceased with

a Darat prior to the arrival of the eye witnesses on spot particularly, when no such suggestion was made to the witnesses in their crossexamination

by the accusedappellant. Assuming the witnesses showed slight discrepancy as to the number of blows, such a discrepancy in matters of detail may

occur in the evidence of 2/3 witnesses. That is hardly a ground for rejecting their evidence, when there is a consensus as to the substratum of the

case, as has been observed by the Apex Court in ST. Shinde vs. Maharashtra, AIR 1974 SC 791. Further, it is well settled proposition of law,

where minor discrepancies, not going to the root of the matter, are found in the evidence to corroborate testimony of natural principal and eye

witnesses, the discrepancies should not be overemphasized. (Balbir Singh vs. State of Punjab, AIR 194 SC 969). The contention put forth by the

appellant's counsel, therefore, does not merit acceptance.

The seizure of the blood stained shirt, which the accused was wearing at the time of occurrence, has been proved in the testimony of PWs,

Mohd. Mir and Mela Ram, its attesting witnesses. According to Serologist report, the shirt was found stained with human blood. The seizure of the

blood stained shirt was effected by memo EXPW MR/7. It is neither the case of the prosecution nor of the defence that the accused also sustained

any injury in the occurrence. The shirt was seized only because it was stained with blood, as is recorded in the memo. This fact, however,

remained unexplained by the accused in a statement under Section 342 of the Cr.P.C. as to how his shirt was stained with blood, except bare

denial. Both the attesting witnesses of the seizure memo unambiguously stated that the shirt of the accused was stained with blood and this fact was

stood affirmed by the report of the serologist. The accused also admitted that his shirt was seized vide memo EXPW MR/7. This action is an

important circumstance to provide corroboration to the prosecution case against the appellant.

The motive behind crime is a relevant factor, of which evidence can be given. Motive may conceivably furnish the necessary corroboration. If

the evidence shows that the accused, having a strong motive, had the opportunity of committing crime and established circumstances exclude the

reasonable possibility of any one else being the real culprit, then the chain of evidence can be considered to be complete as to hold the accused

guilty. The case of the prosecution is that Ram Dass deceased, had put the father of the accused in possession of the land and himself shifted to

village Kotar and settled on the land provided by his inlaws. The accused, after the death of his father, alongwith brother and mother, was living in

one of the two roomed house of the deceased. Some of the land, belonging to the deceased, was got transferred by Jattu, the brother of the

accused, in his name. This fact, however, has been proved both by oral and documentary evidence provided by PWs Sardaro and Chuni Lal and

Patwari Chain Singh, The evidence of PW Sardaro is to the effect that when Jattu, brother of the accused, set up his claim of ownership on the

land provided by Ram Dass, deceased, the later returned to the village. Similarly, PW Chuni Lal, affirms that the deceased Ram Dass had kept a

part of the land in his personal cultivation in village Dugnoo and visiting the village intermittently. The Revenue Record EXPW CS/1 and EXPW

CS/2 proved in the testimony of PW, Chain Singh, Patwari clearly revealed that Jattu, brother of the accused, is recorded in possession of 49

Kanals and 4 marlas of land, which stood transferred in his name under Section 4 of the Agrarian Reforms Act vide Mutation No. 944 attested

under the said Act as prospective owner. As is elicited in the statement of the PW Sardaro, when Jattu, brother of the accused, usurped the land,

the deceased returned to the village to reassert his right, the accused did not like it and got agitated by this claim and pursuant to the altercation that

took place with the deceased, the accused attacked him and inflicted injuries with a Darat on the neck, a vital part of the body, which resulted in

almost instantaneous death of the deceased. The fact that Jattu, brother of the accused, got a portion of the land, standing in the name of the

deceased, mutated in his own name, on hearing of which, the deceased, came to the village is a strong motive for the accused to develop illfeeling

against the deceased. The prosecution, therefore, has proved the existence of some motive by an over whelming evidence, which remained

unchallenged, to show why it developed in the mind of the accused impelling him to commit the crime. Motive is an inherent factor in a criminal

matter in determining the guilt where there is only the circumstantial evidence available. The Trial Court rightly appreciated the circumstance of

motive presented by the prosecution through the evidence in showing the possibility of some ire for the accused towards the victim and such ire

after some altercation swelled up in the mind of the offender to such a degree as to impel him to commit the offence.

Another circumstance relied upon by the Trial Court is the arrest of the accused immediately after the occurrence and his admission to the

witnesses to the arrival of the police on spot. Conduct of the last kind must be conduct, which influences, or is influenced by any fact in issue or

relevant fact. This implies, that their must be a direct or immediate relation between the conduct of the accused and the fact in issue that piece of

conduct can be held to be incriminatory, it is no reasonable explanation except of the hypothesis that he is guilty. The conduct of the accused, in

this case, consists of two parts the first part pertains to the running away from the place of occurrence, after the commission of offence, towards

the jungle, and the second, the confession of his guilt when asked by PW Mohd Mir in presence of other witnesses. It is normally the guilty, rather

than innocent people, who run away, and in the like manner it is generally the guilty who make confessions and not the innocent people. The one

piece of evidence may firm the other It is clearly extracted from the evidence of PW Sardaro that the accused, Chain, fled away towards the jungle

after committing the offence. So is affirmed by PW, Mir Mohd, who when received the information about the murder of the deceased, saw the

accused running towards the jungle. Thereupon, Mohd Mir asked Bandro Ram and Hukumi, PWs, to chase and apprehend the accused. These

witnesses caught hold of the accused and brought him to the place of incidence, where many villagers had assembled. It was at that time, the

accused made clean breast of his guilt, when explored by PW, Mir Mohd. To the same effect is the statement of PW, Mela Ram that when asked

as to who has killed the deceased, the accused confessed that he has killed the deceased with a Darat. There is no denial of the fact that the

extrajudicial confession is permissible in evidence. In a long catena of decisions of the Supreme Court, the settled position of the present day is

that, extrajudical confession by itself, if otherwise is in conformity with the law and some other assuring material or circumstance, can be treated as

substantive evidence. Having regard to the credibility to the witnesses to whom the extrajudicial confession has been made by the accused

immediately after he was brought from the jungle, where he had fled away after the commission of the offence, it gains evidentiory value and is

rendered acceptable. Since the appellant not only ran away from the place of occurrence, but also confessed his guilt before the witnesses before

the arrival of the police on spot. So this circumstances also stands conclusively proved.

The eye witnesses have given a cogent and consistent version in the manner in which he has committed the crime. Nothing was elicited in the

crossexamination to discredit their evidence. Such evidence will inspire confidence in the mind of the court. The direct evidence of the eye

witnesses further stood corroborated in material particular by other incriminating circumstances, namely extrajudicial confession, conduct of the

accused, motive, discovery of weapon of offence, the presence of the blood stains on the shirt of the accused were at the time of the occurrence

and the medical evidence, which unerringly point out to the guilt of the accused and are inconsistent with his innocence. The conclusion, on rational

deduction, which reasonable minds make from the probative force of facts and circumstances, is that the accused is guilty of causing the murder of

Ram Dass, deceased, on the faithful day.

We are, therefore, of the view that the Trial Court has rightly appreciated, estimated and evaluated the evidence produced by the prosecution

in holding the accused guilty of murder and recording conviction. We, therefore, do not find any infirmity in the judgement/order pro pounded by

the Trial Court, holding the accused guilty and awarding sentence that calls for interference either. In the result, we dismiss the appeal, being devoid

of merit, and confirm the finding returned of the sentence awarded by the Trial Court. Both the appeal as well as reference made by the Trial Court

are disposed of accordingly.