State Of Jammu & Kashmir vs Tarseem Kumar And Ors

Gita Mittal, CJ

By way of the instant appeal, the appellant challenged the judgment dated 24th February, 2009 passed by the learned 1st Additional Sessions Judge, Jammu in a case arising out of FIR No.32/2005 registered at Police Station, Kahna Chak on 31st March, 2005.

The police intervention in the case commenced on receipt of information by the Police Station, Kahna Chak on 31st March, 2005 that the dead body of one Bodh Raj S/O Chaman Lal R/o Ratti Chappri, Kangrail was lying near the Cement Factory, Kangrail near the road, who had been murdered by some person or persons with the sharp edged substance. Pursuant thereto, ASI Asgar Ali was deputed to visit the spot and make a preliminary investigation. During the course of investigation, the police caused the post mortem of the dead body to be effected at the Government Medical College, Jammu. The site map was prepared, and articles which included Atlas Bi-cycle belonging to the victim, bottle of Amul Cool and a pair of chappals seized by the police from the spot.

It appears that one- Gopal Dass, respondent No.3 before us, who was arrested by the police under Section 54 of the Cr.PC, made an alleged disclosure statement resulting in recovery of a blood stained air gun.

On completion of the investigation, a challan under Section 173 of the Cr.PC came to be presented against the respondents under Sections 302/147/148/109/120-B RPC and Section 4/25 Arms Act in the court of Chief Judicial Magistrate, Jammu who transferred the case to the Court of Special Mobile Magistrate, Jammu, finally committed the case by an order dated 08th June, 2005 to the Court of Principal Sessions Judge, Jammu for trial.

After consideration of the material on record, the learned Trial Judge found material on record to proceed against the respondents under Sections 302/148/120-B/34 of the RPC read with Section 4/25 of the Arms Act. The accused persons pleaded not guilty to the charges framed against them and claimed trial.

In support of its case, the prosecution examined 22 witnesses. The statement of the respondents were recorded in terms of Section 342 of the Cr.P.C. No defence evidence was led.

After a detailed consideration of the evidence produced by the prosecution, the learned 1st Additional Sessions Judge found that the prosecution had failed to prove the case against the respondents beyond reasonable doubt and consequently by the judgment dated 24th February, 2009 acquitted the respondents of the charges laid against them.

Aggrieved thereby, the State has filed the present appeal under Section 417 of the Cr.P.C. and prayed for setting aside of the said judgment and conviction of the respondents for the commission of the offences with which they are charged.

We have heard learned AAG Mr, Aseem Sawhney for the State appellant and Mr. M M Gupta, learned counsel for the respondents 5 to 7 in the matter. The record of the trial court has also been placed before us which has been carefully examined. We have given our considered thought to the matter.

We are informed by Mr. Gupta that during the pendency of the appeal, Yashpal, respondent No.2 and Guran, respondent No.4, have expired. As such, the present appeal against them would abate.

The record of the case shows that there was no eye-witness in support of the case and the prosecution rests entirely on circumstantial evidence. It is trite that so far as the case of prosecution rests on circumstantial evidence is concerned, the prosecution is required to prove an unbroken chain of evidence leading only to the conclusion of culpability and guilty of the accused persons and leaving no possibility of any other conclusion. The evidence led by the prosecution in the instant case has to be examined in this light.

In the pronouncement of Supreme Court in Ram Swaroop and others Vs. State of Rajasthan, (2004) 13 SCC 134, the Supreme Court observed thus:-

"25.............................................................................. ..........................................................It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse."

(Emphasis supplied)

The above principle was reiterated in State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180, the Supreme Court has held as follows:-

"11. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, wherein this Court observed thus:

"Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."

(Emphasis supplied)

Again in (2009) 12 SCC 629, Vijay Kumar Vs. State by Inspector of Police, Madras and another, the Supreme Court summed up the legal position as follows:-

"12. The principles which have been set out in innumerable cases have been reiterated as under:-

(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness- box.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."

It is thus well settled 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 the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse.

So far as the examination of evidence in a case based on circumstantial evidence is concerned, the tests which the prosecution must satisfy have been authoritatively reiterated by the Supreme Court in the case of State of Goa v. Sanjay Thakran and Anr, (2007) 3 SCC 755 in the following lines:

"The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

[See : State of U.P. v. Satish, (2005) 3 SCC 114, Padala Veera Reddy v. State of Andhra Pradesh and Others, 1989 Supp. (2) SCC 706, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Gambhir v. State of Maharashtra, (1982) 2 SCC 351 and Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh, AIR 1952 SC 343].

The evidence in the presence case and the impugned judgment have to be testified in the light of the above well settled principles.

It is also a well established principle in law that so far as the case of the circumstantial evidence is concerned, so far as the offence of murder is concerned, motive is an important link. In the instant case, the prosecution alleged that Guran was the maternal grandfather (Nana) of Sunita who was the wife of deceased Bodh Raj. Sunita was examined as a prosecution witness who had testified that land admeasuring 1 kanal was given by Guran to Sunita and a house has been raised upon this piece of land wherein the victim Bodh Raj along with his wife Sunita and their family were residing when the occurrence took place. So far as the motive of the offence is concerned, the prosecution attempted to establish that Gopal Dass, Yashpal and Tarsem Kumar were real brothers who were annoyed with Guran for this action. For this reason, they were alleged to have taken away Guran who was residing with the victim Bodh Raj some days prior to the occurrence and they conspired to get the land back by eliminating Bodh Raj.

In the challan which was filed before the trial court, the prosecution had alleged that the victim Bodh Raj and Guran also had a tiff as the victim wanted some more land from Guran.

Pursuant to this conspiracy, the respondents are alleged to have attacked Bodh Raj near the cement factory, Kangrail resulting his death on the night of 30th March, 2005 when he was returning from his shop situate at Patoli.

To establish motive, the prosecution suggested animosity between the victim, respondent Guran and the sons of Pankhu Ram as having led to the killing.

The trial Judge has carefully examined the evidence in support of this circumstance, the evidence of the wife of the victim, his parents and brother in the effort of the prosecution to establish this circumstance. The trial Court has found material improvements in the statement recorded by these persons as was recorded by the Investigating officer and found that this testimony was missing from the statement given to the police. The suggestion of the dispute premised on the land transaction is also not established in the evidence of the witnesses examined by the prosecution.

We find that to the contrary a detailed analysis of the evidence of Sita Devi mother of the victim which establishes good relations of the accused persons with the deceased has been undertaken by the learned trial judges.

Most important on this aspect is the deposition of Sunita Devi (wife of the victim Bodh Raj) who has merely referred to a dispute between the parties and nothing beyond that. The witness was confronted with her statement under Section 161 Cr.P.C. recorded on 31st March, 2005 which did not reveal that she had any sort of suspicion upon the respondents with regard to the occurrence. On the contrary, she had in her statement informed the police that she has no suspicion upon anyone with regard to the death of her husband as the victim had no enmity with anyone.

In this background, the conclusion of the learned trial Judge to the effect that there was not an iota of evidence on the issue that respondents nursed a motive because of any land dispute to end the life of the victim cannot be faulted with. Even the finding of the learned trial Judge to the effect that animosity between the three brothers and the deceased has not been established by any evidence is unassailable. Therefore, the material link of any motive for the crime is conspicuously absent in the present case.

Mr. Aseem Sawhney, learned AAG has submitted that the prosecution relies on the recovery of two weapons, that is, an air gun and second, a kirch. So far as the air gun is concerned, the prosecution attributed it to the disclosure statement of Gopal Dass. So far as the incident is concerned, the same occurred on 30th March, 2005.

This recovery is allegedly effected ten days later on 10th April, 2005.

Additionally, the prosecution claimed to have recovered a kirch and Dah premised on disclosure statements attributed to the respondents. These recoveries were also alleged effected on 10th April, 2005. The Air gun recovered on disclosure statement made by Gopal Dass, Sumba recovered on the disclosure statement of Tarseem Kumar and Toka on disclosure statement made by Yashpal. These disclosure statements are disputed by the respondents. Except for the kirch type sumba which is attributed to the disclosure statement of Tarseem Kumar, rest of the recoveries were effected from open spaces. The trial Court has doubted the recoveries as they were effected from open places. The seized articles were also not marked.

Even if these recoveries were accepted as having been effected pursuant to disclosure statements made by the accused persons, the prosecution has miserably failed to connect the same to the commission of the offence. The record of the case shows that though these articles were shown to the doctor who opined that it was possible to inflict these injuries using the recovered articles, however, there is no evidence to connect the recovered articles to the commission of the offence. Additionally the prosecution failed to obtain any forensic evidence to connect these articles to the commission of the offence. We may additionally note that these articles if at all recovered at the instance of the respondents were never deposited in the Malkhana. When produced in Court also, they were not in sealed condition.

In fact, the forensic evidence completely demolishes the case of the prosecution. The FSL report merely reported that blood stains were found on the recovered articles without opining the origin of blood. The learned trial Judge had doubted the veracity of the FSL report for the reason that the seized articles were also not sent at the earliest to the FSL and were not produced in court in sealed condition.

The prosecution, in fact, rests entirely on disclosure statements attributed to the respondents after they were arrested. These statements cannot be taken on record or to be relied upon in view of prohibition contained in Sections 24, 25 and 26 of the J&K Evidence Act Svt 1977 (1920 A.D.).

The trial Judge has held that the prosecution has failed to establish the unbroken chain of evidence pointing to the guilt of the respondents. (See: State of Goa v. Sanjay Thakran and Anr., (2007) 3 SCC 755). The above discussion would show that there is nothing which would enable this Court to take a different view.

For all these reasons, we find no merit in this appeal, which is hereby dismissed.