State of J & K vs Janardhan & Anr.

The respondents accused who were tried for commission of the offence under Section 302/34 IPC for having committed the murder of

deceased Darshan Kumar have been acquitted by the learned Sessions Judge, Kathua by his judgment dated 21.2.2005.

State in order to question the legality of the acquittal of the accused respondents has come up in appeal but not within the period of limitation

prescribed. Since there is huge delay of 962 days it has filed condonation application as well for seeking condonation of delay.

We have heard the learned AAG for the State and perused the record.

Delay defeats the legal remedy unless the cause of delay is fully reasonably and sufficiently explained. The petitioner/State has sought to explain

the delay in the application by stating as follows:

That the orders/judgment in the said case was pronounced on 21st Feb., 2005 whereafter it was referred to concerned authorities for obtaining

their legal opinion as to whether appeal was to be filed or not. The matter was examined by the concerned authority and ultimately the sanction

was granted to file the appeal vide Govt. order No. 755LD (ACQ) of 2005 dated 31.3.2005 and then learned Govt. Advocate was requested to

file the appeal.

That all the documents required for preparation of appeal were made available to the learned Govt. Advocate but somehow the needful was not

done despite repeated requests for filing the appeal. That the learned Govt. Advocate resigned and ultimately another Govt. order No. 2092LD

(ACQ) of 2007 dated 27.8.2007 came to be passed in terms of which the learned Additional Advocate General has been requested to file the

appeal. Copy of this order was also sent to the former Govt. Advocate with a request to hand over all the records to the Director, litigation in

order the appeal.

That the record lying with the learned Govt. Advocate was received on 15.9.2007 by the Director Litigation and the same was handed over to the

learned Additional Advocate General in third week of September, 2007 for preparation of the appeal.

The above explanation in our view does not sufficiently justify the delay caused in filing the appeal. The state has not filed the affidavit of the

concerned Govt. Advocate to show as to what prevented him from filing the appeal immediately. If it was because of some inaction on the part of

the State functionaries the fault of not filing the appeal would not be attributable to him but if he was negligent still it would be for the State to show

that on its part there was no negligence in the matter and that it has diligently done what was required to be done by it. In the instant case the State

appears to have slept over the matter for more than two years. Why it did not enquire from the concerned Govt. Advocate as to the filing of the

appeal within reasonable time from the date of assignment of the case to him, there is no answer. From the explanation tendered it is manifest that

at no stage the State showed the diligence and promptness in filing the appeal. The delay thus has not been sufficiently explained for warranting

indulgence of the Court.

We, therefore, do not feel inclined to condone the delay but in order to see that the accused do not get undue benefit of the default of the State.

We have gone through the judgment of the learned trial Court.

The accused/respondents' trial emanated from the registration of the case in Police Station, Hiranagar on the verbal report of PW1 Manohar Lal

who informed the Police on 11.6.2002 that his son deceased Darshan Kumar, who was working in J&K Fire Services, after having dinner at 9

p.m. left for duty. Since he and his son had enmity with Janardhan and Mahander Kumar accused they with criminal intention to kill took the

deceased to roof of their house and struck him with some sharp edged weapon causing injuries on his head and other parts of the body resulting

into his death and that his dead body was lying on spot. On the said information the police registered the case against the accused under FIR

No.76/2002 for commission of offences under Section 302/34 RPC and started investigation. The Investigating Officer proceeded on the place of

occurrence which was the roof of the house of the accused situated at village Dangaroli, Tehsil Hiranagar and found the dead body of the

deceased ina pool of blood. He prepared the site plan, the photographs thereof were taken and from the place blood stained sand, cement and

plain sand, cement, sample of blood and one piece of blood stained wood were seized and sealed on spot. The dead body was then taken into

possession and after filling the 'Fard Surat Hal' form the postmortem on the dead body was got conducted from the Medical Officer, SDH

Hiranagar and at that time the clothes worn by the deceased viz. one undershirt and one underwear blood stained were seized and seizure memos

prepared. Blood sample from the dead body was taken and seizure memo was prepared thereof.

During the course of investigation the accused were taken into custody on 12.6.2002. They made the disclosure statements regarding their own

blood stained clothes which were subsequently recovered at their instance. The sealed packets were got resealed and were sent to Forensic

Science Laboratory, Jammu for Chemical examination. After recording the statements of the witnesses in terms of Section 161 Cr. P.C. and

concluding that accused had committed the offence the investigating agency filed the chargesheet against them.

Before the learned trial Court the charges were framed against the accused and they pleaded not guilty and the prosecution was directed to lead

evidence for establishing the guilt of the accused. The prosecution examined PWs Manohar Lal, Gopal Krishan, Sansar Chand, Thakur Dass,

Bhola Ram, Hans Raj, Sushil Kumar, Jagdish Singh Patwari, Dr. Tariq Mehmood, Avtar Singh Naib Tehsildar and Jatinder Misra Naib Tehsildar.

As per the evidence of the doctor who conducted the postmortem PW Dr. Tariq Mehmood, Asstt Surgeon, SDH Hiranagar, the deceased was

found to have following injuries:

Lacerated wound right side of forehead 2 cm in length;

Lacerated wound 3"" on chin;

Lacerated wound 5"" on occipital region;

Bleeding right ear;

Fracture of occipital bone. State of nature Orifices:

The eyes were partially opened;

Right ear was bleeding;

The Urethra was sadden in appearance;

The occipital region, hair were smeared with blood. The brain substance was ecchymosed and ventricles filled with blood.

In his opinion the cause of death was due to the injury to medulla oblongata where vital centers are located. According to him there was injury to

cerebra vascular structures including cerebellum. State of shock had ensued due to the head injury.

From the nature of the injuries found to have been sustained by the deceased it is quite manifest that he died unnatural death because of the

injuries which could have been caused by a blunt object, so the question arising or consideration is as to who caused the said injuries.

The place of occurrence admittedly was the rooftop of the house of the accused respondents. It is also an established fact that there was no

staircase or ladder for reaching on the rooftop. How the deceased reached on the roof top of the house of the accused is a mystery which has

remained unfolded by the investigation. Though PW1 by lodging the report had stated that accused had taken the deceased to the roof of their

house for killing, yet there is no evidence of any witness for establishing this fact. Even there is no evidence to show that the accused was last seen

in the company of the accused. There is no eyewitness to the occurrence. Though PW1 Manohar Lal in his FIR has stated that accused took the

deceased on the roof of their house, where they inflicted injuries on him by some sharp edged weapon but when he came in the witness box he

admitted the fact that he acquired the knowledge of the dead body of the deceased lying on the roof top of the house of the accused from PW

Gopal Krishan. PW Gopal Krishan who is the Numberdar of the village has not come forward to say that he saw the accused inflicting injuries

upon the deceased on their roof top. His evidence is that when he was sleeping in his house accused Maehhinder Sharma came to him and told him

that he had seen some intruder on the roof of the house and when he went to enquire from him, there he had a scuffle with that person in which he

had also sustained some injuries on his arm and that intruder was lying unconscious on the roof. On receiving the said information PW Gopal

Krishan went to the roof top and saw the deceased with the light of torch whereafter he reported this matter to the father of the deceased PW1

Manohar Lal.

So far as the disclosure and recoveries are concerned, the witnesses before whom the accused are alleged to have made the disclosure

statements and effected the recoveries have tendered shaky evidence which cannot be relied upon for proving the recovery of the blood stained

clothes. Moreover the prosecution has not through any evidence shown that the blood stained clothes of the accused bore the blood of the same

group which was of the deceased.

So far as accused Janardhan is concerned, there is absolutely no incriminating evidence available in the statements of the prosecution

witnesses. The prosecution thus has only established the fact that accused Mahander Sharma had come to PW2 Gopal Krishan and informed him

about the scuffle which he had with the intruder on his rooftop resulting into an injury to him and that the intruder was lying unconscious on his

rooftop. In his statement recorded under Section 342 Cr. P.C. the accused Maehhinder Sharma has explained the said circumstance like wise and

the learned Sessions Judge has dealt with the said circumstance in the following manner:

The question now arises as to whether his explanation is reasonable and should be accepted. Considering the nature of injuries found on the

person of Maehhinder and the nature of injuries found on the person of deceased which have been opined by doctor witness PW11 to be sufficient

in the ordinary course of nature and being caused with the blood stained log sufficiently demonstrates that the log in question has been used by

Maehhinder in inflicting these injuries on the person of Darshan Kumar, the deceased and by virtue of those injuries the brain substance of

deceased had got ecchymosed and there was fracture of occipital bone and there was 5"" lacerated wound on occipital region speaks for itself.

Why the deceased had been on the roof of the house of accused during night and where his shoes and TShirt had been removed is not explained.

The dead body has been found without shoes without TShirt and without having pant on what has happened to the shoes and the TShirt which are

still missing? What should have been the object of deceased to go on the roof of the house of accused are such questions for which no explanation

is offered either by prosecution or by defence. The prosecution case regarding this aspect is that there was animosity between accused and the

deceased and accused used to threaten deceased on earlier occasions but this fact denied by father of deceased which raises doubt for what

purpose the deceased had gone there but the fact remains that Maehhinder accused has himself admitted having grappled with the deceased to

save himself from the clutches of the deceased and made him unconscious then went to report to the village Numberdar PW Gopal Krishan leaves

no doubt to hold that the occurrence has taken place on the roof itself in view of attending circumstances is quantity of blood oozed from the

deceased's body being present there as reflected by photographs A1 to A5.

It is natural that in a house where there are more than 5/6 adult members and fight takes place on the roof of their house, someone from the family

would have awoken from the sleep but being members of the same family and the act having ensued the result viz. death of a human being could

not be cited as witness nor would have supported the prosecution case. None from the adjoining house viz. house of Charan Dass which has been

used by some witness to reach the roof of the house of accused has been cited or examined as a witness in this case. The house of Charan Dass

happens to be in between the house of the deceased and the accused. The deceased in this case has paid the price of his precious life for having

committed house trespass during night viz. having gone on the roof of the house of the accused admittedly during the period after sunset and before

sunrise.

The learned Sessions Judge has further observed:

In such a situation where an intruder has committed house breaking by night, the law has recognized the right of occupant and owner of that house

to guard his house and the privacy of his house that has been recognized as right to defend properly under Section 103 of the Ranbir Penal Code.

As per Section 103 RPC justifies homicide in case of robbery, house breaking by night, arson and theft, mischief (if house trespass causing

apprehension of death or grievous hurt.

In the instant case accused Maehhinder has been found having injuries/bide marks by PW2 Gopal Krishan, Numberdar at 2 in the night when

Maehhinder has reported before him about the events resulting into unconsciousness of intruder which proved to be the death of the intruder

speaks for itself that the availability of the pile/stock of firewood being stocked on the roof thus being readily and easily available, there was no

light, the injuries on the person of Maehhinder could not have been caused after death or after the intruder/deceased would have been made

unconscious speaks that the intruder attacked him before having fallen to then the retaliatory stack in selfdefence by accused Maehhinder it being a

night time so it was a battle of wits between intruder and the accused. The above proposition assumes importance especially in a militancy prone

State where special powers have been given to Armed Forces to help civilian administration for keeping peace and order in the society at large

and to protect the lives and property of the citizen. In darkness how can one expect as to whether the intruder and the person happen to be in front

of each other different to the recognized in darkness, it becomes a question of do or die. In such situations where a person is confronted with death

he has to act to escape that death and if he does not act has to die.

In this way the learned Sessions Judge has exonerated the accused Maehhinder Sharma for the liability of causing death of the deceased.

We have carefully gone through the evidence of the prosecution and in our considered opinion the findings of the learned Sessions Judge do

not call for any interference. The learned AAG was not in a position to identify any reliable and convincing evidence on the basis of which the

findings of the learned trial Court can be faulted with. We therefore, do not find any justifiable reason to interfere with the well reasoned judgment

of the trial Court.

Above being the position on merits of the appeal, we are not condoning the delay caused in filing the acquittal appeal and therefore, dismiss the

condonation application as well as the acquittal appeal of the State.