Ram Lal vs State of Jammu and Kashmir

Bhawani Singh, Actg.C.J.

This appeal is directed against the judgment of Sessions Judge, Udhampur, file No. 131-A/Session, dated 21-2-1992 whereby the appellant

has been convicted u/s 302 R. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to

undergo further rigorous imprisonment for two months. The facts of the case may be mentioned briefly:

Certain labourers were engaged by Contractor Om Prakash for the construction of residential quarters MESNCO at Thil opposite advance main

workshop. Temporary hutments had been constructed for these labourers. On 24-8-1985 Anil Kumar accompanied by Tikam Singh reported to

the Police at Udhampur that his father had contract for construction of residential quarters for which purpose labourers were engaged. At about

4.35 am Tikam Singh told him about the deadbody of Dil Bhai wife of Ram Lal lying in the bed on the floor outside the hut. Her neck had been cut

from left side wherefrom blood had oozed and had fallen on the floor and the bed. Ram Lal was present in the hut during the night but he was not

there when the deadbody was seen. Tikam Singh staled that he had seen the dead body himself with cut by a sharp edged weapon on the neck

and that on 23-8-1985 accused Ram Lal did not take lunch being annoyed with his wife, but both of them had their meals at 10 in the night. They

slept outside the hut along with minor son Bansi Lal. First Information Report 296/1985 was lodged and SHO Joginder Kumar started

investigation of the case. While doing so, he took in possession the dead body, blood stained earth and recorded the statement of witnesses.

Ultimately, challan was filed in the Court of Chief Judicial Magistrate Udhampur, which committed the accused for trial to the Court of Sessions

Judge, Udhampur: Charge was framed against the accused to which he pleaded not guilty. Consequently the trial commenced.

The prosecution examined as many as sixteen witnesses in the case. According to Pritam Lal (PW-1) the accused gave statement to the police that

the Tangia with which he had killed the deceased had been thrown on the other side of the road which he could get recovered. This statement was

recorded and got attested from the marginal witnesses. Thereafter, the accused went across the road and recovered the Tangia and handed it over

to the police (Exp. 1). During the cross-examination, he pointed out that his hut was at a distance of 4/5 huts from the hut of the accused. He had

slept inside the hut. whereas the accused, deceased and child slept outside. He did not hear any noise of Dil Bhai. He also went to the place of

occurrence and after lighting the lamp he found that the deceased was still alive but was not speaking. Tangia (Exp. 1) was recovered from a

distance of 20 feet from the road. Mst. Amrika Bhai (PW-2) has stated that she knew the deceased who was stabbed by the accused after sitting

on her chest. Her statement was recorded on 5-2-1986. At about 4 in the night she came out of her hut for urination and saw that the accused was

silting on the chest of the deceased and was beating her. She could not say as to with what object he was doing so. Phil Bhai did not raise any hue

and cry but she raised cries. On hearing the cries 3/4 labourers came on spot. Tikam Singh was one of them but she did not know the names of

others. Ram Lal ran away from the spot. They saw the deceased and found that the bed was stained with blood which came out from her neck.

Tikam Singh informed Om Prakash. contractor about the occurrence that very night. She admitted that her hut was adjacent to the hut of the

accused who had slept on the floor outside the hut along with the deceased. It was dark at the time of occurrence. The deceased was of good

character and no outsider used to come to her. Ram Lal had never any quarrel with her. Anil Kumar son of the contractor had come to the spot on

that very night. When Tikam Singh came to the spot, accused had already fled. Tikam Singh had followed the accused with 2/3 persons. Tikam

Singh had seen the accused from a distance of 30 yards while he was going across the road. She had told Anil Kumar that Ram Lal had killed the

deceased. She had also told Tikam Singh about it. Army men lived near their huts though they would not come to the house of the accused. Tikam

Singh (PW-3) has stated that his statement was recorded on 5-2-1986. His hut was opposite to the hut of Ram Lal, At about 4 a.m. he heard

noise of Mst. Amrika Bhai (PW-2) saying that the accused was beating the deceased. He came out and saw that accused had gone 25/30 paces

away from his hut. Mst. Amrika Bhai was standing near her door. When he looked at the deceased, she was murmuring and he went after Ram

Lal up to 8/10 paces, whereafter he came back since he was threatened with death by the accused in case he continued following him. In the

meantime other labourers also came out of their huts. Mst. Amrika Bhai lighted the lamp and in its light they saw that the blood was oozing out

from the neck of the deceased. During this night accused and deceased were sleeping outside the hut. The couple had a son, aged 5/6 years.

When he asked the deceased as to what had happened, she could only say ""ah ah"" and said nothing more than this and nodded her head when

asked whether the accused had killed her. One pair of Chappal of accused was also seized by the police (EXP ETS/1). No cries of the deceased

were heard. He could not say as to why the accused had slept outside. Arm people who lived nearby, used to talk to the deceased freely. He had

no knowledge that the deceased was of bad character rather she was a gay lady. About 30 labourers used to live in the huts. He had seen the

accused running from a distance of 30/35 feet. He informed Anil Kumar about the occurrence in detail and accompanied him to the police station

for lodging report where the name of the accused was stated to be the killer of the deceased. The police was also informed about his following the

accused. Jeevan Bhai (PW-5) has stated that her statement was recorded on 6-2-1986. The deceased was well built, beautiful and healthy as

compared to her and used to line happily and would cut jokes which was not liked by her husband who used to restrain her from this behaviour.

Some months back the accused hit her head with a brick and broke her tooth on another occasion. In the night she heard the cries of Mst. Amrika

Bhai saying that the accused had ran away by killing the deceased. The deceased was not in a position to talk. Her hut was located 3/4 huts away

from the hut of the accused who had slept outside that night with the deceased. Ram Sahai (PW-6) has also stated that his statement was recorded

on 6-2-1986. While he was sleeping in his hut, he heard noise of Mst. Amrika Bhai that the accused was running away after killing the deceased.

He came out and saw the deceased lying in the bed outside the door and blood was coming out from her neck. The accused was not there. He

went to police station along with Pritam Lal. The accused gave statement to the police that he had thrown the axe below the bridge where there

were bushes. His statement was recorded by the police. The accused took the police to a place where Tangia (Exp. 1) was recovered. It was

taken out by the accused from the bushes and there was no troughfare at that place. His hut was next to the hut of the accused. He never heard her

cries. Mst. Amrika Bhai's hut was at a distance of 6/7 huts. Accused and deceased had slept outside the hut while others had slept inside. He did

not see the deceased with any army personnel, but she used to cut jokes with everybody otherwise the accused and deceased were living

peacefully.

Dr. Minder Gupta (PW-4) found the following injuries on the person of the deceased:

An incised wound on the left side of her neck in the middle 2"" long 1"" wide and 1.5"" deep cutting part of the sternomastoid muscle, left carotid

vessels and left side of third vertabra.

In his opinion the deceased died of shock due to haemorrhage from the said injury in her neck, with duration of 24 hours. It was grievous in nature

caused by sharp cutting weapon like the Tangia (Exp.1) On receiving the injury, the deceased could not have moved her head. She must have lost

her senses and could not have responded.

Judicial Magistrate Ravinder Kumar (PW-7) recorded the statement of Tikam Singh and Amrika Bhai u/s 164 Cr. P. C. on the direction of

Chief Judicial Magistrate Udhampur (EXP WRK and EXP WRK/1). They have been proved by this witness. Kartar Singh (PW-8) noticed the

dead body of the deceased outside the door of the hut with blood oozing out of the neck injury and falling on the clothes at the bed. The police

took possession the dead body, one chappal and blood stained earth in addition to gunny bag and Talai. He lived at a distance of 1 Km from the

place of occurrence. Seized Chappal was not shown to him in the Court. People residing in the huts had told him that the Chappal belonged to the

deceased. Casha Chowkidar, (PW-9) was called to the spot. He supports the recoveries made by the police and the seizure memo prepared by

it. Hem Raj Gupta (PW-10) and Hans Raj (PW-1)) are not very important witnesses. Prabh Dayal (PW-12) affected the arrest of the accused.

While Mohd Sultan SHO (PW-14) and Joginder Kumar Anand (PW-15) conducted the investigation. It has been pointed out by SHO Mohd

Sultan that he investigated this case partly. The accused made a disclosure statement while in custody regarding the weapon of offence which was

recovered from the bushes on Dhair road where it was kept concealed by the accused which was not a thoroughfare. During cross-examination he

admitted that there were no blood stains on the Tangia. The accused was brought to Udhampur on 4-10-1985 and disclosure statement was made

on 6-10-1985 in the presence of Ram Sahai and Pritam Lal. He took over investigation from SHO Joginder Kumar Anand(PW-15). Shri Joginder

Kumar Anand (PW-15) also investigated this case for sometime. It was registered at the instance of Anil Kumar accompanied by Tikam Singh. He

left for the place of occurrence and found the dead body of the deceased outside the hut on the floor over the bed and gunny bag which was

stained with blood. On examination of the dead body, cut injury was found on the left side of the neck out of which blood in large quantity had

come out and fallen on the clothes of the deceased who was wearing a Sari and Bloch. Agents plastic Chappal was found towards the foot side of

the deceased. It was of the accused and was seized separately. The witnesses saw the accused running from the place of occurrence in the light of

moon. Anil Kumar (PW-13) was narrated the occurrence by Tikam Singh and Dev Raj. He went to the police station along with Tikam Singh.

Before he reported the matter he had gone to the spot where he must have been told the name of the killer and weapon used by Mst. Amrika

Bhai, Tikam Singh and others. Neither he. nor Tikam Singh gave the name of the accused to the police while recording first information report

which shows that the name of the killer was not known to either of the prosecution witnesses by the time the first information report was recorded.

Consequently, the investigation has not at all been truthful and the witnesses have been created simply to initiate and substantiate the case against

the accused.

The accused has stated u/s 342 Cr. P. C. that the witnesses had given false statement on account of hostility towards him. He did not make any

disclosure statement to the police regarding the recovery of weapon of offence. He had good relations with his wife and they were living peacefully.

He had gone to his village in connection with some domestic obligation. Two witnesses namely Prem Lal (DW-1) and Shoki Ram (DW-2) have

been examined in defence. These two witnesses were living in some of the huts near the place of occurrence. Prem Lal (DW-1)has stated that

Amrika Bhai was heard crying that Ram Lal's wife had been murdered by somebody. She had not stated the name of the killer. Tikam Singh came

to the spot afterwards. He did not name anyone although his relations with the accused were not good. The accused and his wife were living

peacefully and there was no dispute between them. He had gone there two days prior to the occurrence. He occupied 4th hut from that of the

accused and 3rd hut from the hut of Mst. Amrika Bhai. He could not say the time of the death of the deceased though he had seen the deadbody

outside the hut. He had no knowledge whether the deceased had slept outside or inside the hut. Both these witnesses say that they slept inside their

huts. Shoki Ram (DW-2) heard the cries of Mst. Amrika Bhai that deceased had died. He came out of the hut and saw the deceased lying dead

with blood on her bed. Somebody had killed her. Mst. Amrika Bhai did not name anybody at that time. Accused had gone to his village 2/3 days

prior to the occurrence. Nobody has said anything about the killer of the deceased. He has denied the suggestion that the accused ran away after

killing the deceased. He belongs to the village of the accused. The deceased was not of bad temperament and accused never gave beatings to her

prior to the occurrence. Mst. Amrika Bhai used to meet him but she never told him about the killing of the deceased by the accused.

We heard learned counsel for the parties and perused the case file carefully in order to examine the correctness of the impugned judgment. It was

contended by Mrs. S. Kaur learned counsel for the accused that the trial Court judgment is patently wrong being against the facts on the file. The

trial Judge has not appreciated the evidence correctly resulting in erroneous conclusions adverse to the accused. Specifically, it was urged that the

prosecution ease suffers from numerous deficiencies and the guilt has not been proved against the accused. The evidence is thoroughly weak,

shaky and undependable. No conviction could possibly be recorded on this evidence. The motive for commission of crime has not been proved.

Apart from this, direct, circumstantial evidence is totally unsatisfactory. The discovery of weapon of offence is not in accordance with law and it

has wrongly been held that the accused was last seen with the deceased and his sudden disappearance and subsequent arrest from his village

indicated his participation in the crime.

Shri Hafiz-ur-Rehman, Govt. Advocate submitted that there is clinching evidence of the commission of dime by the accused, therefore, his

conviction is absolutely correct and is not liable to be set aside. The prosecution has been able to prove the motive for the commission of crime.

Even if it is taken that motive has not been proved satisfactorily, other evidence of direct, circumstantial and Medical is so strong that the plea of

the accused is rendered completely without any basis. Mst. Amrika Bhai may be the sole eye witness to the occurrence, but her testimony is good

enough to substantiate the charge against the accused. There is evidence of recovery of weapon of offence at the instance of the accused, evidence

of witnesses who came to the spot soon after the event, fleeing of the accused from the place of occurrence and failure to prove the plea of alibi

taken by him are sufficient to hold him responsible for the death of the deceased.

With a view to examine the rival contentions of the learned counsel for both sides, we examined the matter extensively to satisfy ourselves whether

judgment of the trial Court is sustainable.

The first question for determination is whether the accused had motive to kill the deceased. According to the prosecution, the accused wanted to

do away with the deceased, since he suspected her fidelity towards him and she had been warned and subjected to beating as well in the past not

to cut jokes with the other persons Narration of evidence hereinabove clearly points out that the deceased was free and frank with other persons,

but there is no dependable evidence to indicate that she was not faithful to the accused and had been subjected to beatings at times by him for her

behaviour. Rather, it has been stated by most of the prosecution witnesses that the deceased was a good lady with cheerful disposition, and with

good physical features. The couple was living peacefully and there could be no reason for the accused to have killed her. The trial Court has rightly

rejected the case of the prosecution on this aspect. Turning to other evidence in the case, there are glaring weaknesses in the prosecution case. It is

pointed out that the prosecution witnesses say that the accused, deceased and the child slept outside the hut during that night. The accused was

seen beating the deceased while sitting on her chest. Her cries attracted Mst. Amrika Bhai and other labourers living in the nearby huts. The

statement of Mst. Amrika Bhai is hardly dependable. She states that she noticed the occurrence when she came out for urination, but she also

states that the deceased did not raise any hue and cry but raised cries on which 3/4 labourers came to the spot. It is in evidence that she continued

standing in front of her hut for sometime and evidence points out that 3/4 labourers came to the spot. If this is accepted, then the accused should

have been seen beating the deceased by all of them and all of them should have run after him in the normal course. At one stage Mst. Amrika Bhai

states that 2/3 persons ran after the accused, but at another states that only Tikam Singh followed him. She has thus contradicted her own

statement on this crucial point. The basic flaw in the prosecution story is the incredibility of the case. When all the labourers were sleeping inside

their huts, there could be no reasons why only the family of the accused should have slept outside the hut in the month of August when there are

rains. The legitimate conclusion can be that the incident did not take place outside the hut. Either it took place inside the hut or the deceased was

killed somewhere else and her body placed in front of the hut. The assailant could hardly be recognised during this part of the night more

particularly when he was sitting on the chest of the deceased with his back towards the huts of the prosecution witnesses. When the weapon of

offence could not be noticed, it is difficult to expect that the accused could be recognised by the witnesses when the occurrence was not preceded

by any quarrel between the couple. Apart from this, the prosecution case is that minor son of the couple aged 5/6 years was also sleeping with

them, but there is no evidence pointing out his reaction to the beating of the deceased by the accused nor about his subsequent keeping. The child

could have been the most important witness pointing out the killer of the deceased. The prosecution has not cited the child as well as Om Prakash

although they are most material witnesses to the case. There is no explanation with respect to this omission. Further, it has not been established that

the bed over which the deceased was sleeping belonged to the family. The Chappal recovered from the spot has not been connected either with

the deceased or the accused eliminating the participation of outsider in this occurrence. The statement of Tikam Singh that the accused had

threatened the latter in case he followed him is hardly acceptable when there were 3/4 labourers on the spot, Tikam Singh could not have run after

the accused alone. It appears that this version of the witness is plainly concocted to support the prosecution version. There is another aspect of the

case which deserves to be noticed. In case the incident took place on the spot-as alleged by the prosecution, apart from the fact that the accused

would not have postponed the killing of the deceased to that part of the night though motive part of the prosecution case has been rejected,

however, in case he intended to kill her he would not have laid the bed outside in the open knowing fully well that his hut was along with the huts of

other labourers. Rather, he could have killed her inside the hut during the night. Further, it is stated by Mst. Amrika Bhai that the cries of the

deceased attracted her and 3/4 labourers to the spot. If this version is accepted, then the deceased should have cried that she was being beaten

and killed by the accused. Prosecution case therefore, appears to be totally false. Dr. Jatinder Gupta has pointed out in his statement that with this

kind of injury, the deceased would have become unconscious and incapable of response. Consequently, the version of Mst. Amrika Bhai is

rendered thoroughly baseless. Apart from the conclusion that the incident did not take place in the manner suggested by the prosecution, these

witnesses did not see the taking place of the occurrence and all of them including the defence witnesses saw the dead body in the morning.

It is well settled that in a case based on circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn

should be fully and cogently established. All the facts so established should be consistent with the hypothesis of guilt of the accused. See Kishore

Chand Vs. State of Himachal Pradesh, .

The First Information Report mentions neither the name of the accused nor eye witnesses nor the weapon of offence. According to the

prosecution, almost all the labourers had reached the place of occurrence. Mst. Amrika Bhai was first to arrive there. She claims to have seen the

accused killing the deceased and running away from the scene of occurrence followed by Tikam Singh. But her version is hardly dependable in

view of the massive contradictions in her statement pointed out hereinabove. When all these persons had reached the place of occurrence and had

come to know about the perpetration of the crime and the weapon having been thrown by the accused on the other side of the road, these material

facts should have been narrated to the police when the first information report was recorded at the instance of Anil Kumar and Tikam Singh. Since

these facts do not find mention in the first information report, it becomes absolutely clear that none of the prosecution witnesses knew about the

killer of the deceased in the morning when they noticed the deceased lying in the bed with cut injury on the neck and the story narrated by Mst.

Amrika Bhai. Tikam Singh and other prosecution witnesses is liable to be rejected. Absence of material facts in the first information report

damages the prosecution case to a great extent and affects its credibility. Mahesh Chander Vs. Delhi Administration, .

Now we turn to the recovery of weapon of offence. The evidence on this aspect is completely unsatisfactory. The Investigating Officers attempted

to show that the recovery was made sequel to the statement of the accused recorded u/s 27 of the Evidence Act. It was taken out by the accused

from a bush where it had been concealed by him and the place was not a thoroughfare. This version has not been supported by some prosecution

witnesses stating that the accused had thrown it on the other side of the road and the place was accessible to all. Further, the Investigating Officer

Mohd Sultan (PW-14) has admitted that there were no blood stains on the Tangia. Thus the recovery of Tangia has been rendered doubtful. There

is serious doubt that this weapon was used for causing injury on the deceased, since no blood is found on it and such weapons are commonly

available in the area.

The accused has stated in his examination u/s 342 Cr. P. C. that he had gone to his village 4/5 days prior to the occurrence. This appears to be

correct since he had gone to the village alone leaving the child with his wife. Had he killed the deceased, he would have taken the child along with

him. The contention that this witnesses have contradicted him by stating that he had gone home 2/3 days prior to the occurrence is hardly

convincing. It is just a minor contradiction and nothing survives on it when the accused himself has stated that he had gone home 4/5 days prior to

the incident. Though these witnesses have said like witnesses of the prosecution that the deceased was sleeping outside the hut during the night, but

that does not indicate that the family in fact slept there. As a matter of fact, the dead body of the deceased was found in the bed outside the hut in

the morning, therefore the people gathered that the family must have slept outside the hut, but we have already entertained serious doubts on this

version of the prosecution in the preceding para of this judgment pointing out that this family alone could not have slept outside when the

neighbourers were sleeping inside their huts and the incident had not actually taken place there as suggested by the prosecution, but somewhere

else. The scene of occurrence has been shifted simply to create evidence from the persons living in the adjoining huts. Apart from our conclusion

that the accused has established the plea of alibi, it is well settled that even if the accused fails to substantiate this plea, no adverse inference can be

drawn against him and the burden of proof to prove the case still remains on the prosecution. See Sakharam Vs. State of Madhya Pradesh, . What

emerges out of the aforesaid discussion is that the prosecution has not been able to prove that the deceased was killed by the accused and none

else. The evidence produced by it to substantiate the charge is woefully inadequate, undependable and unsatisfactory to prove the allegation of

murder against the accused. There are grievous inconsistencies in the version of the prosecution witnesses on material aspects of the case giving

advantage to the accused. The Trial Court fell in error by not analysing and appreciating the evidence carefully with the result that erroneous

conclusions have been drawn against the accused.

Consequently, this appeal succeeds and is allowed. The judgment of the Trial Court is set aside and the accused is acquitted of the charge. He is

stated to be in jail for the past more than ten years. We direct his release forthwith.

The Reference is accordingly rejected.