HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Cr. Appeal no.1 /2004 with Confirmation Ref. no.2/2004 Date of Decision: 02.04.2009 Subhash Singh vs. State State vs. Subhash Singh CORAM: HON’BLE MR. JUSTICE NIRMAL SINGH, JUDGE. HON’BLE MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Appellant(s) : Mr. Surinder Singh, Advocate. For Respondent(s) : Mr. P. C. Sharma, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No _______________________________________________________ J.P. Singh, J : This Criminal Appeal is directed against Judgment dated December 31, 2003 and Order of April 1, 2004 whereby learned 1st Additional Sessions Judge, Jammu has convicted the appellant for committing the murder of Rashpal Singh, and sentenced him to Imprisonment for life and fine of Rs. 5000/- under Section 302 of the Ranbir Penal Code (RPC “for short”), making reference under Section 374 of the Code of Criminal Procedure for confirmation of the Sentence. Facts leading to, the filing of the Appeal, and the Confirmation Reference may be stated thus: 2 F A C T S Harnam Singh, PW 2 lodged a report in Police Station Kanachak on September 7, 1999 to the effect that Subash Singh and Rakesh Singh sons of Suraj Singh, and their mother Krishna Devi, had been abusing his family members for the last 2/3 months saying that his tenants were rogues and they should be turned out of the house. It was on 7th of September, 1999 at about 2.00 p.m, that Krishna Devi started abusing Harnam Singh and his family members, and on being requested, by Koushalya Devi, Harnam Singh, PW2’s wife, not to indulge in abusing, Krishna Devi retaliated beating her, when, in the meanwhile, Rashpal Singh, Harnam Singh’s son came home, off duty, and told his father to lodge a Police Report regarding the incident. Harnam Singh, his son Rashpal Singh, and wife Koushalya Devi, accordingly, started proceeding towards the Police Station and when they reached near Purkho, Krishna Devi instigated her sons to do away with Harnam Singh and his family so that they do not reach the Police Station. On this, her sons, Subash Singh and Rakesh Singh, attacked Rashpal Singh. Rakesh Singh caught hold of Rashpal Singh’s arms from behind, when Subash Singh attacked him with a dagger, used for breaking ice, and known in local dialect as “Sua”, which hit him in the abdomen, as a result whereof, he fell down and was taken to Government Medical College Hospital, Jammu where he succumbed to the injury. 3 FIR No. 199/1999 was registered at Police Station Kanachak on Harnam Singh’s Report, referred to hereinabove. The Police investigated the occurrence and ultimately filed its Final Report with the Chief Judicial Magistrate, Jammu who committed it to the Court of Sessions. Finding grounds for proceeding against the accused, named in the Final Police Report, Subash Singh and Krishna Devi were, accordingly, charged under section 302/ 34 RPC, who, while denying the charge, claimed to be tried. Rakesh Singh having absconded, learned 1st Additional Sessions Judge, Jammu, the trial Court, proceeding under Section 512 Cr.P.C, directed the prosecution to lead its evidence in support of its case. In order to sustain the charge, the prosecution produced PW 2 Harnam Singh, PW 3 Swarn Singh, PW 5 Ramesh Kumar, PW 6 Sampuran Singh, PW 7 Satish Mangotra, PW 9 Mst. Nisha, PW 11 Mst. Seema, PW 12 Nirmala Devi, PW 13 Dr. C. S. Gupta, PW 16 A. K. Raina, Scientific Officer Forensic Science Laboratory, Jammu, and PW 17 Guler Singh, ASI. After examining the accused under section 342 Cr.P.C, the accused were provided opportunity to lead their evidence pursuant whereto they examined DW-Vinod Kumar, the Civil Clerk of the Court of 3rd Additional Munsiff, Jammu, to indicate that the prosecution case had been fabricated against them in view of the earlier pending civil litigation between the parties. 4 On appreciation of the evidence produced in the case, the trial Court came to the conclusion that the prosecution had failed to prove its case against the appellant’s mother, Krishna Devi, and, accordingly, acquitted her. It, however, relying on the testimony of PW 2 Harnam Singh, the first informant, PW 13 Dr. C. S. Gupta who had conducted the autopsy on Rashpal Singh, deceased, the Disclosure Statement made by the appellant and the consequent recovery of the weapon of offence at his instance, held the prosecution to have proved its case against the appellant for committing the murder of Rashpal Singh and, accordingly, convicted and sentenced him as mentioned at the threshold. DISCUSSION : In order to sustain the Final Police Report, reliance had been placed by the prosecution on the testimony of PW2 Harnam Singh, PW6 Sampuran Singh, PW8 Koushalya Devi and PW9 Nisha Rajput as eye witnesses to the occurrence besides on the statements of other witnesses who had been cited to prove the Disclosure Statement made by the appellant, the consequent recovery of the weapon of offence, the Postmortem Report and other corroborative evidence relied upon by the Investigating Agency. During the trial, however, besides PW2 Harnam Singh, PW11 Mst. Seema and PW12 Mst. Nirmala Devi, the sisters of the deceased, who had not been cited as eye witnesses in the Final Police Report, too made statements to the effect that the occurrence had taken place in their 5 presence. PW6 Sampuran Singh, the other eye witness cited, as such, in the Final Police Report did not, however, support the prosecution. PW8 Koushalya Devi who too had been cited as eye witness in the Police Challan, could not, however, be produced to testify to what had she stated in her statement under Section 161 Cr.P.C, because of her death during the trial. The Investigating Police Officer too was not produced by the prosecution to prove Koushalya Devi’s statement recorded under section 161 Cr.P.C. While appreciating the prosecution evidence, the trial court did not find it safe to rely on the statements of PW11 and PW12 who had neither been referred to as the eye witnesses in the FIR nor had they stated when examined under section 161 Cr.P.C about their having witnessed the occurrence. That apart, the statements of these witnesses under section 161 Cr.P.C were found to have been recorded after about 20 days of the occurrence which fact too weighed with the trial Court in discarding their evidence. The trial Court has thus, in convicting the appellant relied on the testimony of sole eye witness PW2 Harnam Singh besides on the appellant’s Disclosure Statement, termed erroneously as Extra Judicial Confession by the trial Court, and the factum of the recovery of weapon of the offence at the instance of the appellant. The only question which thus falls for consideration in this appeal is, as to whether or not PW2 Harnam Singh’s statement is worthy of credence for sustaining appellant’s Conviction and Sentence in the light of the Disclosure 6 Statement, recovery of weapon of offence and the statement of PW13 Dr.C. S. Gupta? We have scanned PW2 Harnam Singh’s statement in detail. Although PW2 Harnam Singh has stated in his examination-in-chief that Rakesh Singh had caught hold of the arms of the deceased from behind when Subash Singh stabbed him in the abdomen with the “Sua” and the deceased had fallen down with his hands on the wound, yet during his cross-examination, he stated that while the deceased was purchasing Cigarettes at a kiosk nearby, he along with Koshayala, Nisha and Nirmala were at a distance of 25’ ahead of him and when he turned back to look for his son, he found him lying on the ground and accused Subash and Rakesh were not there at that time. The deceased, according to him, had not raised any alarm, on being stabbed. In view of the later part of PW2’s statement, it becomes difficult to believe that part of his statement where he says that he had seen the appellant attacking the deceased. The version of the incident which the witness had given at the time of lodging the FIR too differs, on material particulars, from the one he had narrated when examined as a prosecution witness in the Court. The deceased, according to the earlier version of PW2, is stated to have accompanied the witness when they started from their house whereas according to the later version, the deceased had met them on their way to the 7 Police Station on his coming back off duty, near a kiosk. In the earlier version, the witness is stated to have been accompanied by his deceased son Rashpal Singh and wife Koshalya Devi whereas in the later version he had introduced his daughter Nirmala too, to have accompanied him. In the earlier version, which is a detailed one, there is no mention about the deceased having told the witness that he had been stabbed by the appellant whereas in the later version he introduces the story that the deceased had asked for water and told him that he had been stabbed by the appellant. In the earlier version, the appellant and his brother Rakesh are stated to have attacked the deceased on being instigated to do so by Krishna Devi whereas the later version is significantly silent about the appellant and his brother having attacked the deceased at the instigation of their mother Krishna Devi. In view of the above inconsistencies in the statement of PW2, it becomes necessary to look for any other corroborative piece of evidence on the basis whereof it may be said that the witness had infact seen the appellant stabbing the deceased. PW8 Koshalya Devi, who is stated to have accompanied PW2 on their way to the Police Station, did not survive to support the prosecution story and no attempt was made by the prosecution to prove the version which is stated to have been given by her in the statement under Section 161 Cr.P.C. The other eye witness PW6 Sampuran Singh too did not support the prosecution case. So much so 8 that even PW9 Mst. Nisha who is stated to have been teased by the tenants of Harnam Singh, and the appellant and his family members wanted him to turn out his tenants, who according to them were rogues, And which is stated to be the main cause of the strained relations between the appellant’s family and the family of Harnam Singh, PW2, which had led to the earlier quarrel in the day between PW8 Koshalya Devi and appellant’s mother Krishna Devi as a result whereof Harnam Singh and his wife had decided to lodge Report in the Police Station, too has not supported the prosecution story thereby knocking out the Motive which had been projected by the prosecution as a cause for the occurrence. PW13 Dr. C.S.Gupta, has testified the deceased to have received a punctured wound 0.5 cm in diameter over the lower lobe of the liver 1.5 cm deep, but his testimony too may not help the prosecution in supporting PW2 because the weapon of offence does not appear to have been put to him for his opinion as to whether the injury sustained by the deceased could possibly be caused by the dagger “Sua” which had been recovered at the instance of the appellant. Taking an overall view of the prosecution evidence and considering the trial Court’s finding in disbelieving part of the prosecution story justifying the acquittal of appellant’s mother Krishna Devi on whose instigation the appellant and his brother are stated to have attacked the deceased, material contradictions noticed in the statement of PW2 and there being no other acceptable corroborative 9 evidence to support the statement of PW2, We are of the view that there exists reasonable doubt about the involvement of the appellant in the occurrence leading to the murder of Rashpal Singh and the genesis of the occurrence appears to us to have been suppressed by the prosecution. The finding of the trial Court that the prosecution had succeeded in establishing that the appellant was the real perpetrator of the crime and had committed murder of Rashpal Singh, deceased, cannot thus be sustained. For all what has been said above, giving benefit of reasonable doubt to the appellant, We, accordingly, allow the appeal, set aside the impugned judgment and Order of the trial Court, and direct appellant’s acquittal and his release from custody forthwith. Confirmation Reference No.02/2004 is, accordingly, declined. (J. P. Singh) (Nirmal Singh) Judge Judge JAMMU 02.04.2009 *Amjad lone*