State of J. and K. vs Hem Raj

R.C. Gandhi, J.—This acquittal appeal is directed against the judgment and order of the learned Sessions Judge, Rajouri, dated 18-6-1984

whereby accused has been acquitted of the charge against him for offence u/s 302, R.P.C.

Briefly the prosecution story is that on 14-10-1983, Mohan Singh and Mela Ram chowkidar reported to the police that a dead body incapable

of identification was lying on the roadside of village Borari. A police party led by the SHO visited the spot and the dead body was finally identified

to be of Om Parkash by his mother and other relations. The dead body was sent for postmortem and on 3-1 1984 the cause of death was finally

ascertained to be violent asphyxia because of the presence of injuries on the head and neck of the deceased.

From 14-10-1983 till 5-12-1983 proceedings u/s 174, Cr.P.C. were continued and it was on 5-12-1983 that a formal case u/s 302, R.P.C.

was registered on the basis of the injury statement as no opinion about the cause of death had been received by them. During the trial it has come

in the evidence that the deceased Om Prakash along with accused and many others was last seen together in the house of Mohan Singh PW 14

where all the prosecution witnesses 1 to 8 and 15 had collected to take liquor on the evening of 11-10-1983. At about 10 p.m. accused and

deceased left along with Behari Lal and Kasturi Lal PWs I and 2. Both the accused and the deceased are alleged to have had some altercation and

since the deceased was dead drunk and unable to hold himself, accused tried to drag him from the neck as a result of which he fell in a ditch but

the accused helped him out of it. This was witnessed by PWs 1 and 2. Nothing was heard of the deceased on 12/13 Oct. while his dead body was

found only on 14-10-1983. On the basis of such evidence the prosecution came to the conclusion that the deceased was killed by the accused as

the former had illicit relations with the sister-in-law of the latter to which he had objected which, according to the prosecution was the motive for

the commission of murder of the deceased who was the husband of his real sister.

Though the story came to light on 5-12-1983, the fact remains that all those witnesses who had consumed liquor including PW Mohan Singh,

were under uninterrupted interrogation of the police from 14-10-1983 to 5-12-1983 as admitted by the Investigating Officer. These witnesses

remained in police custody for nearby one month and during this period they were subjected to beating and torture.

The prosecution in order to prove guilt against the accused and connect him with the commission of crime, has produced before the Court,

evidence, with regard to motive, the deceased last seen alive with the accused, the extra judicial confession and conduct of the accused soon after

the occurrence.

After careful examination of the evidence and the judgment under appeal, we have noticed that the prosecution has not been in a position to pin

point and prepare a site plan showing the place of occurrence. The prosecution/has not annexed with the challan any site plan which is extremely

fatal to the prosecution case. In order to connect the accused with the commission of the offence the prosecution has to explain and prove the

place of occurrence, beyond shadow of doubt. Not only this, the prosecuiton has also not proved any evidence as to when and at what place the

deceased was last seen alive with the accused. This has become more important and material for the reason that according to the prosecution,

these witnesses had taken liquor along with accused in the house of PW Mohan Singh who has denied this in his statement.

So far as the evidence of extra judicial confession made to PW 11 is concerned, it has come in the evidence that Sham Dass PW 11 is the

father of Indcrjit PW 13. According to him he came to know about the murder of the deceased when his dead body was found. Next day i.e.,

Saturday following the funeral day, while he was going to offer condolences to the family of the deceased, he met the accused in the way and

asked him the reason for not joining the funeral of the deceased. Accused disclosed him that on the night of Tuesday he was also there in the house

of Mohan Singh where deceased had taken liquor and played cards for money. They left for home at about 10 p.m. along with Behari Lal and

Kasturi Lal PWs. In the way towards home, he demanded money from the deceased which he refused. Upon this he caught hold of him from his

chest by shirt as a result of which the deceased fell down. He then took out the money from his pocket and finding that the deceased had stopped

breathing, he ran away. According to this witness, this fact was told by him to the police on the same day i.e., 15-10-1983 when some of the

witnesses were being interrogated. This extra judicial confession is shrouded with clouds. Why the prosecution has not believed this from 15-10-

1983 to 5-12-1983, is not clear. While all the witnesses were under constant interrogation from 14-10-1983 to 4-12-1983 as each one of them

was a suspect for the reason.that they were present in the house of PW 14 Mohan Singh on the night of occurrence. But, according to the IO. this

witness is telling a I ie as nothing was divulged by him to the police till 5-12-1983 when his statement u/s 161, Cr.P.C. was recorded. Such

evidence of the Investigating Officer which attracts the extra judicial confession cannot be said to be a truthful statement to be relied upon by the

criminal Court. The extra judicial confession should be voluntary, untainted and trustworthy. This statement lacks the ingredients of a statement of

extra judicial confession and it is not safe to rely on such a statement.

Another circumstance which goes against the prosecution is that the deceased was admittedly carrying a packet containing sugar, haldi and other

eatables. It has also come in the evidence that there was a lot of rain on the previous night but despite that all these articles were intact and even

sugar was not wet muchless the packet. PWs 12 and 13 Amir Chand and Mela Ram are al so not clear that it was intact. However, seizure memo

shows that the articles were intact and unaffected though the investigating officer made a statement to the contrary. This clearly belies the statement

of the investigating officer.

The other i mportant factor which cannot be ignored is that the place where the dead body was found, being open and exposed to public view

with pedestrians moving on the either side, it could not have remained unnoticed for two days. Had the place of occurrence been the same where

the dead body was seen by the complainants, it could not have remained unnoticed for two days. The prosecution also could not make out as to

whether the dead body remained unnoticed for two days while it was lying in a place which is open and exposed to the public view. If it was not

so, where it remained for two days?

The most significant and vital evidence against the prosecution is that according to it on 15-10 -1983 the accused is alleged to have made

confession to PW Sham Dass who was already in police custody in nowhere and there could be no reason for him to be anywhere else to make a

statement of confession to Sham Dass.

A perusal of the judgment under appeal reveals that the trial Court has rightly appreciated the statements of the prosecution witnesses and

other incriminating evidence collected by the, prosecution. The findings recorded by the trial Court are based on the evidence produced by the

prosecution. The prosecution has failed to prove motive, confessional statements the place of occurrence and the deceased's being last seen with

the accused. Accordingly the view taken by the trial Court in recording the finding of acquittal warrants no interference.

In the result of the appeal fails and is hereby dismissed.