State Of J&K vs Kulbir Singh

The present appeal is directed against the judgment of acquittal dated 16.09.2009, passed by the learned Additional Sessions Judge, Kathua, (for

short “Trial Courtâ€) by virtue of which the respondent has been acquitted from commission of offences punishable under Sections 302 RPC and

4/25 Arms Act in FIR bearing No.10/2004 of Police Station, Kathua.

Appeal has been filed, interalia, on the ground that the judgment is bad in the eyes of law as the prosecution has succeeded to prove the motive

behind the murder of the deceased. It is stated that the Trial court has failed to appreciate the prosecution evidence in its true and correct perspective.

It is also stated that the learned Trial court has ignored the pieces of evidence as well as medical report that are the sufficient proof of involvement of

the accused/respondent. It is submitted that the impugned judgment is based on surmises and conjectures inasmuch as it has taken a hyper technical

approach.

The brief resume of prosecution case is as under:

PW-1 Roop Lal telephonically informed Police Station Kathua that the accused/respondent, in view of previous enmity, with an intention to kill,

attacked his brother, namely, Rakesh Kumar, with a kirch at about 4.45 PM and inflicted injuries in his abdomen and back resulting in causing

grievance injuries who was shifted to hospital at Kathua where he succumbed to injuries.

On the basis of telephonic information, so received by the police, FIR No.10/2004 for offences punishable under Sections 307 RPC and 4/25 RPC,

was registered against the respondent and investigation commenced. The police, after recording the statements of the witnesses as well as completing

other formalities and on completion of the investigation, found offences punishable under sections 302 and 4/25 Arms Act established against the

accused and accordingly charge sheeted him. The charges were framed against the accused for commission of offences punishable under Sections

302 RPC and 4/25 Arms Act.

The charge against the accused is that on 04.01.2004 at ward No. 4 on account of previous enmity and with preparation, he attacked the deceased,

Rakesh Kumar, with kirch and inflicted injuries with such kirch in his abdomen and back and due to injuries so inflicted he died, thus, committed

offences punishable under section 302 RPC and 4/25 Arms Act.

To prove the charges, the prosecution relied upon oral as well as documentary evidence. The oral evidence relied upon by the prosecution are PWs

Madan Lal, Om Parkash, Bansi Lal, Mukhtiar Chand, Pumma, Bal Krishan, K. K. Sharma, Jaffar Ullah Khan, MHC, Mohd Shafi, ASI, Dr. V. S.

Jamwal, Inspector Rovel Singh and Surinder Khadyal ASI/SHO.

The documentary evidence relied upon by the prosecution are seizure memo of dead body (ExPW-RL), receipt of dead body (ExPW RL-1),

seizure of blood stained clay ExPW RL-2, Seizure memo of plain clay ExPW RS/3, seizure memo of clothes of deceased (ExPW RL/2), seizure

memo of cloths of accused (ExPW 12-JU), disclosure memo (ExPW-SS), recovery memo of weapon of offence (ExPW SS/1), Suprdnama (ExPW

MS), death report (ExPW RS/4), post-mortem report (ExPW 16/VS), certificate of resealing (ExPW 10-KK), Aks of weapon of offence (ExPW

SS/3) and the revenue record (ExPW 9/BK/1).

To appreciate the grounds taken by the appellant in this appeal, it is necessary to give brief resume of the evidence produced before the Trial court

by the prosecution in order to find out whether the same has been properly appreciated by the Trial Court or not, while acquitting the

accused/respondent.

PW-1 Roop Lal is the brother of the deceased. He has deposed that his brother was working with the accused as labourer. Prior to his death, he

had gone for work. He and his wife (PW-2) were at home when at about 4.45 PM, he heard cries near his house. He came out and went on spot

where he saw his brother was being attacked by the accused. On seeing him, accused ran away. His wife also came on spot and saw Rinku

(deceased) injured, who was bleeding from stomach. They took him to the hospital where he died. He further stated that the occurrence took place as

the deceased had asked accused to pay him money. Before death, deceased told him about the occurrence. The information was given by him to the

police on telephone. The occurrence took place on the back side of his house. To reach the place of occurrence, he had to cross the road but he

jumped the fence which was at a distance of about 10 to 15 feet from his house. He has further stated that 200/500 persons had assembled on spot.

He took the deceased to hospital in an auto which came from Dream Park. He further stated that when the deceased informed him about the

occurrence, doctor was also present at that time in the hospital. He stated that the deceased was attacked 5 to 7 times in his abdomen and his

intestines had come out. His statement was recorded after 3/4 days of the occurrence by the police. He further stated that his clothes were also

soaked with blood but were not seized by the police. The weapon of offence was seized. The dead body of the deceased was seized and the same

was exhibited as ExPW RL and was handover to him.

PW-2 Pushpa Devi has deposed that the deceased was her brother-in-law, who used to work with tractor of accused as labourer. On 12.01.2004,

at 8.00/9.00AM early in the morning, Pamma took accused with him. At 5 P.M, while she was cleaning vegetables at her home, she heard cries of

deceased „mar diya, mar diya‟. She along with her husband (PW-1) went on the spot and saw that accused was attacking deceased with kirch and

he ran away. The deceased was hit at his abdomen. They took deceased towards the road and hired an auto. The deceased had asked accused to pay

money, which he had borrowed from him and due to this, he had hit him. On being cross examined, she stated that in hospital, the deceased in

presence of doctor told her that he was killed because he asked the accused to pay money to him which he had borrowed. Police was present there.

While going through the statement of both these witnesses (PW Nos. 1 and 2), we have seen that as per the statement of the brother (PW-1) of

the deceased, he disclosed him about the occurrence before his death. PW-1 says that the deceased was working as labourer with the accused and

while he demanded money on account of his work he had done, accused attacked him, while as PW-2 has stated that the deceased before his death

disclosed her about the occurrence and told her in presence of the doctor that when he demanded money which the accused had borrowed from him,

accused attacked him. Two different versions have been given by these two witnesses regarding the occurrence and the statement which is claimed

to have been made by the deceased before his death. Both have claimed that the statement was made by the deceased in front of the doctor.

However, there is no such statement on the record. Both these witnesses have given different versions, making their presence as well as the claim

that the deceased made the statement to them about the occurrence as doubtful.

On analysing the statement of these witness, it is seen that PW-1 claimed to have witnessed the occurrence which took place on the backside of

his house when he came out on hearing the cries while he was preparing the vegetables with his wife at 4.45 PM, he had to jump the fence, which

was at a distance of 10 to 15 feet from his house to reach the spot and about 200/500 peoples had gathered there. His statement is that the accused

was asked by the deceased to pay him money and it was because of the demand made by the deceased for payment of money that the occurrence in

question took place. Both the witnesses have further claimed that the deceased, when taken to the hospital in the injured condition, disclosed to them in

presence of the doctor about the occurrence. There is no statement of the doctor recorded to show that such a statement was made or information

given by the deceased to this witness. The deceased, according to these witnesses, was attacked in his abdomen and back with a kirch and it is

claimed by these witness that when they heard cries of the deceased, then they went to the spot. So, it must have taken some time to jump the fence

by PW-1 as well as PW-2to reach the spot. Occurrence as stated by them took place on the back side of their house so after hearing cries they came

out of their house and went to the spot. This makes it clear that before these witnesses came out of the house and proceeded to the spot which was

on back side of their house, jumped the fence and reached the spot, the occurrence might have already taken place so their claim having witnessed the

occurrence, i.e., having seen inflicting injuries on the abdomen and the back with the kirch by the accused, appears to be a doubtful statement.

In the statement under section 161 Cr.P.C, it is stated that there was previous enmity between the deceased and the accused; on the basis of

which also, the prosecution story has been set up. It is in the prosecution story and the statement of these witnesses recorded during the course of

investigation that the deceased was working as a labour with the accused and the accused was owing money to him on account of work and the

deceased had informed the father of the accused that the accused is involved in taking drugs, which were the reasons for his having enmity with the

deceased and when the deceased demanded money, accused attacked him, caused injuries due to which he died. These witnesses have also claimed

that the deceased informed them before the doctor about the occurrence, but there is no evidence either recorded during the course of investigation or

produced during the trial, that such statement was made before the doctor by the deceased. There is no such evidence to prove the same. Even doctor

has not stated about such statement whether the injured deceased was in a fit state of mind to make such statement, was also a question to be

answered or shown by the witnesses. The prosecution does not claim that the deceased made any statement regarding occurrence before his death.

Had he made any such statement, Investigating Officer would have recorded the same and would have also sought opinion regarding the same from

the doctor. The absence of any such opinion of doctor as to whether deceased was fit to make statement and non-recording of such statement is

sufficient to show that the deceased was not in a fit state of mind to make such statement.

PW No. 8, Pumma, has been cited as eyewitness of the occurrence. It is claimed by the police that he had witnessed the occurrence and during

the course of investigation, he supported the prosecution version and stated that he and the deceased were working with the accused and the accused

owed money from the deceased, who demanded the money but the accused refused to pay and the deceased also made a complaint to the father of

the accused that the accused was consuming charas and because of these reasons on the day of occurrence, accused attacked the deceased in his

presence with kirch. During the course of investigation, he was claimed to be witness to the occurrence, but when produced before the court, he

denied to be the witness to the occurrence so he was declared hostile despite having been witness to the occurrence and could have supported the

prosecution version.

PW-16, Dr. V. S. Jamwal, has stated that the on 13.01.2004 autopsy on the dead body of the deceased, identified by the brother of deceased

Roop Lal (PW-1), was conducted by him and Dr. Raj Rishi, Surgeon, and Dr. Ram Kumar Physician in the District Hospital, Kathua. The Post-

mortem was conducted by the Board from 10 a.m. to 11 a.m. The alleged cause of death was stabbing by sharp weapon. On post-mortem

examination they observed as under:

“EXTERNAL APPEARANCE:

Length of the body 5‟-9â€​

Appearance of the body: Average Built.

Signs of Decomposition: Nil.

Rigor Mortis: Present.

Liver Mortis: Nil

Belongings: Blue Sweater, Sky blue pant, brown

under-wear, checked shirt.

EXTERNAL AND INTERVAL INJURIE:

- Penetrating wound Right lower chest over lateral aspect.

- Penetrating would over mid back.

- Free blood in abdominal cavity.

- Right lung injury with frank blood in thoracic cavity.

- Liver lacerated.

Th-Orax: Penetrating would in right lateral chest x 4‟‟ deep x 2 cm wide.

Pleura and lung ruptured on right side with frank bllod in lungs.

Abdomen: Penetrating would over mid back region, 6‟‟ deep x 2 cm wide.

Liver lacerated with free blood in abdomenial cavity.

Opinion: After conducting the post-mortem by team of Doctors, the possible cause of death is lacerated wounds causing injury to vital organ and

haemorrhages which led to shock and cardio-respiratory failure leading to death. However the final report will be given after the visceral report is

available. Viscerea has been sent for analysis. At this stage, PP prayed that the statement of the witness may kindly be deferred as the FSL report

regarding viscera is lying in the office of Medical Superintendent, District Hospital, Kathua. Accordingly, the statement of the doctor is deferred.â€​

He has further stated that he has brought the post-mortem Register and FSL report No.504/FSL dated 29.05.2004. As per the post-mortem Register

bearing No. 170 dated 13.01.2004, all the members of the Board, comprising of himself and Dr. Raj Rishi, Dr. Ram Kumar, have put their signatures

on the post-mortem register. He identifies his signatures and the signatures of the other two members of the Board. The post-mortem report is in his

hand and bears his signatures. It is marked as ExPW-16-VS. The post-mortem report on the court file is also marked as ExPW-16-VS. As per the

FSL report no poison was detected in the viscera sent to FSL. The report is produced by the witness. On 04.03.2004, the police produced the weapon

of offence for his opinion. He has given his opinion on the reverse-side of the application of the Police. The report was in his hand and bears his

signatures. It is marked as EXPW-16-VS/1. The weapon shown to him in the court is the same which was shown to him by the Police. The injuries

were sufficient in the ordinary course of nature to cause death of the deceased Rakesh (Rinku).

On cross-examination, he has stated that the Board was suspecting some other reasons for cause of death, that is why, they sent viscera to FSL for

chemical analysis, but they were sure that the death occurred due to the injuries noticed on the body of the deceased. They sent the viscera to rule out

any kind of intoxication or state of mind of the deceased before his death. Intoxication and state of mind for which they sent the viscera, is not related

to the cause of death. They did not have the smell from the mouth or other organs of any intoxicant or alcohol or any other substance. He did not

know the deceased personally and the persons identifying the dead-body were also not known to him. The Board was not told about the assailant by

anybody including the identifier and Police. The belongings, such as blue sweater etc., were neither blood stained nor having any cut marks which has

not been noted in the post-mortem report. The stomach of the deceased was empty. He does not remember whether it was empty or not? They did

not open the stomach. They have not opened the stomach as the whole stomach has to be seen without knowing the contents of the stomach. Both

the edges of the weapon shown to him are sharp, however, half of the one side of the weapon was with irregular sharp-edges. He does not find his

signatures on the weapon. He has not mentioned the name of the weapon in the report EXPW-16-VS/1. The lacerated wound is caused by a blunt

object. The Board has not mentioned in the post-mortem report EXPW-16-VS that the injuries were sufficient in the ordinary course to cause death.

PW-3 Madan Lal, PW-4 Om Parkash, PW-5 Bansi Lal and PW-6, Mukhtiar Chand, were declared hostile as they were not eliciting incriminating

material against the accused-respondent. The other prosecution witnesses have also not supported the prosecution story.

This is the whole of the evidence led by the prosecution in support of charge. The incriminating circumstances were put to the respondent-

accused, to which he stated that the false statements had been made against him to implicate him in a false and frivolous case. The accused did not

produce any witness in support of his defence.

After hearing prosecution as well as defence counsel, the learned Trial court vide judgment dated16.09.2009 acquitted the respondent.

Heard learned counsel for the parties.

Mr. Aseem Sawhney, learned AAG, appearing for the appellant while assailing the judgment, has reiterated the grounds taken in the memo of

appeal and has submitted that the Trial court has ignored the last statement(i.e. dying declaration) made by the deceased in presence of doctor as well

as PW Nos.1 and 2. Learned counsel for the appellant has vehemently argued that even if other witnesses have not supported the prosecution case

and have turned hostile, but there is material piece of evidence in the shape of the statements of PW Nos.1 and 2, who have stated about the

occurrence which they witnessed and also the information/statement made by the deceased to them (PW Nos. 1 and 2) in presence of the doctor

immediately before his death, thus, the statement so made is to be taken as dying declaration, which is sufficient to prove the charge against the

accused.

Neither such statement has been recorded nor the statement of the doctor to this effect has been made nor is there any proof/certificate of the doctor

to show that the deceased made any statement or he was in a fit state of mind to make any statement. In the absence of this, it cannot be said that the

deceased made any statement before his death. It was for the prosecution to establish that the deceased before his death made such a statement.

There being no such proof nor it is the case of the prosecution that the deceased made such dying declaration. Even during investigation PW Nos.1

and 2 have not stated so. This statement appears to have been made to make improvement in their statements made earlier during investigation.

Ms. Deepika Mahajan, learned counsel for the respondent, has vehemently argued that the prosecution has miserably failed to prove its case and

even the dying declaration, upon which much reliance has been placed by the learned counsel for the appellant, was not proved. She also submits that

the witnesses have made contradictory statements which clearly prove that the respondent was roped in a case on false and frivolous grounds.

The law on the subject is well settled. The scope of interference as regards acquittals recorded by the Trial court has been discussed and decided

by the Apex Court in the case of “Sambhaji Hindurao Deshmukh v. State of Maharashtra,â€​ reported in (2008) 11 SCC 186. It was held:

“13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the

entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on

evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due

importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in

appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two

views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to

reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible

makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit

of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra[(1978) 4 SCC 371 : 1979 SCC (Cri) 1], Babu v. State of U.P. [(1983) 2 SCC 21: 1983

SCC (Cri) 332], Awadhesh v. State of M.P. [(1988) 2 SCC 557: 1988 SCC (Cri) 361], Thanedar Singh v. State of M.P. [(2002) 1 SCC 487: 2002

SCC (Cri) 153] and State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] ).â€​

From the above it is derived that while the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the

acquittal by the Trial court unless there are strong reasons based on evidence which can dislodge the findings arrived at by the Trial court, which were

the basis for the acquittal and that the High Court has to give due importance to the conclusions of the Trial court, if they had been arrived at after

proper appreciation of the evidence. It also emerges that the High Court will interfere in appeals against acquittals, only where the Trial court makes

wrong assumptions of material facts or fails to appreciate the evidence properly.

When we peruse the testimony of prosecution witnesses, we do not find them to have, in any manner, established the prosecution case. Hence, it

cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that

the accused was involved in commission of offences charged against him. Our opinion is based on complete appreciation of testimonies of prosecution

witnesses.

From the material placed on record, prosecution has failed to establish that the accused is guilty of having committed the offence, he stands

charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses.

The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand conclusively established,

leading only to one conclusion, i.e., guilt of the accused.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the Trial Court. The Court has fully appreciated the

evidence so placed on record by the prosecution. The accused has had the advantage of having been acquitted by the Trial Court. It cannot be said

that the Trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No

ground for interference is called for. The present appeal is dismissed. Bail bond, if any, furnished by the accused is discharged.

Copy be sent down along with Trial Court record.