State Of J&K vs Shamil Singh

Puneet Gupta, J

The application seeking leave to appeal is filed against the judgment dated 23.03.2019, passed by the learned Principal Sessions Judge, Udhampur, in case No. 67/Ch titled 'State v. Shamil Singh and another', whereby the accused stands acquitted.

On the information received from the reliable source by SHO Police Station, Panchari on 15.01.2015 that body of one Shamsher Singh alias Bittu Son of Thakur Dass was lying in a nallah Karcha Pari in a suspicious circumstances the information was recorded and the police proceeded on spot, seized the body and after completing all the formalities sent the body for post-mortem and the blood sample was collected on the spot. The inquiry under Section 174 Cr.P.C was initiated as the body bore injury marks on head and simple injuries on the body and that it was not a case of fall though the body was found at a distance of 100 feet down the slope. During the course of inquiry on the examination of the persons from the locality the involvement of the accused Shamil Singh and Fulail Singh was found in the murder of the deceased and accordingly FIR No. 12/2015 under Sections 302/34 RPC was registered by Police Station Panchari and investigating carried out in the said FIR.

As per the prosecution, on 14.01.2015 deceased had visited the shop of Shanker Dass S/o Munshi Ramm at village Dandota who was running a small shop of beedi and cigarette. It transpired during investigation that the deceased also went to the house of Shanker Dass where the accused and the victim had drinks and during the course of drinking liquor deceased allegedly started abusing accused and who in a fit of anger tried to overpower the victim but he fled away from the spot. The victim was chased by the accused at some distance and caught hold of him and with common intention and furtherance of common object bet the victim and inflicted head injury upon him with hard object as a result he died and in order to camouflage the death of victim took his body and kept in a nallah underneath a down slope place. As per the post mortem report, deceased had suffered a head injury. The 'danda' allegedly used as weapon of offence was recovered on the disclosure statement of accused Shamil Singh. It is also the case of the prosecution that the deceased used to visit the house of the accused for treatment of Sharda Rani, sister of the accused, who was suffering from illness and had got well on a magic treatment given by the victim.

The accused were charged for offence under Sections 302/34 RPC Sessions but denied the charges.

The prosecution has examined number of witnesses in support of its case including witnesses from FSL and the doctors who conducted post mortem upon the deceased.

PW-Bansi Lal, brother of the victim, has stated that one Dhian Singh of the village had informed the witness that the accused and the deceased had a party together and thereafter the quarrel ensued between the two sides. It may be mentioned that Dhian Singh has not been examined as a witness who Bansi Lal claims to have informed him of the dispute between the parties. Thus this witness stating about the quarrel between the parties cannot be relied upon. The 'danda' was recovered which is of Kohu wood of two feet length.

PW-Sher Singh has turned hostile and PW-Tara Chand is only witness to the fact that he went on spot and found the dead body of Shamsher Singh lying in a nallah.

PW-Chuni Lal has deposed that Santokh Singh, who is maternal uncle of accused Fulail Singh had told him that on the previous night before the dead body was recovered that Shamsher Singh had gone to the shop of Shanker Singh for purchase of beedi where the deceased joined the accused in their house for consumption of liquor and from there the deceased made a call to Kuldeep Singh, who is resident of Lander. The witness also claims that Kuldeep Singh had informed the witness that on previous night deceased had given a call to him. The 'danda' which was recovered from the house of Shanker Singh was not shown to him in the court. From the statement of PW-Chuni Lal what is tried to be derived is that Santokh Singh or even Kuldeep Singh could be witness to the presence of the deceased in the house of the accused persons and the quarrel that might have taken place between the accused persons and the deceased. However, neither Santokh Singh nor Kuldeep Singh has been examined as witnesses who could throw light on the veracity of the statement of the witness and deposing about the fact which could presumably made them the witnesses having last seen the deceased with the accused persons but the same has not happened in the present case.

Admittedly, there is no direct evidence to the alleged killing of Shamsher Singh. The only evidence on which prosecution could rely upon is the alleged disclosure statement made by the accused Shamil Singh and the recovery made by the police of 'danda' from the house of the accused in pursuance to the said disclosure statement. The trial court has in detail examined this aspect of the matter and has come to the conclusion that the statement of PW-Baljinder Singh who has stated about the accused disclosing about the 'danda' and later its recovery upon the asking of SHO is not in tune with the statement of PW Bansi Lal and found inadmissible in evidence. The trial court has supported its finding backed by the judgments of the Hon'ble Apex Court. No fault can be found on this aspect of the case which has been rationally discussed by the trial court. The court has even probablized that the recovery of weapon of offence may have been planted in view of the statements of the above witnesses who come up with inconsistent version on the dimensions of the recovered weapon. Otherwise also, mere recovery of the 'danda' will not point towards the involvement of the accused persons in the case unless other circumstances also rope in the accused. PW-Thakur Dass is the father of the deceased. He is not eye witness to the visit of the deceased to the house of the accused. He was informed about the dead-body of the deceased by father of the accused. No presumption pointing to the guilt of the accused can be there on the basis of this statement of PW-Thakur Dass even if it is to be taken as a correct version though the father of the accused has not been examined in the case.

The other witnesses cited in the case, namely, Prem Nath, Hoshiar Singh and Kartar Singh were also declared hostile nothing could be elicited from them during cross-examination. PW-Bodh Raj has only deposed that the father of the accused came in the Committee of self help group and informed that there is jacket lying in the road. The place was visited and Shanker Dass, father of the accused, informed that a body is also lying in the nallah, which was later on recovered. The statement of this witness by itself again does not remotely establish the guilt of the accused.

PW-Dr. Ashish Talashi along with Dr. Shailja conducted the post mortem of the dead body on 16.01.2015 at PHC Panchari and have admitted the certificate issued by them. However, the statements of the doctors by themselves cannot establish any link of the accused with the occurrence unless the other attending circumstances point out the same which are found wanting in the present case.

PWs- I. A. Malik and Pawan Abrol are witnesses from FSL Jammu, who have deposed as per the certificates given by them. Again their statements cannot bring home the culpability of the accused when the other circumstances are not supporting the prosecution.

PW-Sunder Singh is the Investigating Officer and PW-Sanjeev Kumar is the SHO of concerned Police Station who have only deposed about the information gathered by them after the information was received from reliable source. It is admitted by the Investigating Officer that the assault on the victim was not witnessed by the persons assembled on spot though they do narrate that accused Shamil Singh had inflicted a 'danda' blow on the deceased.

Sanjeev Kumar and Kartar Singh have been produced in defense. As per DW-Sanjeev Kumar on the day of occurrence the deceased had been to his house at 8 PM and was drunk. The deceased despite being asked to stay back did not stay there. He has also deposed that the place from where the body was recovered lies in the way that leads to the house of the accused but he shows ignorance whether the accused met the deceased on the way or not. He has denied the suggestion of the prosecution that the deceased left his house at about 8 PM and in the way he was caught by the accused. The statement of this witness could not be discredited in cross-examination. DW Kartar Singh feigns ignorance of the occurrence. Irrespective of the defence evidence the prosecution has failed to stand on its own legs and prove its case against the accused beyond shadow of doubt.

The Court finds that the trial court has dealt with the case from all angles and has carefully dissected the prosecution evidence before concluding that the prosecution has failed to establish the case against the accused beyond shadow of doubt.

There is no error in the judgment and thus no interference is called for by the appellate court in it.

The application filed seeking leave to appeal is dismissed.

The application seeking condonation of delay in filing the appeal is also dismissed.