HIGH COURT OF JAMMU AND KASHMIR AT JAMMU *** Cr. Appeal no.11 /2007 & Cr. M. P no. 20/2007 Cr. Appeal no. 12/2007 Cr. Appeal no. 13/2007 & Confirmation Reference no.05/2007 Date of Decision: 15.04.2009 Sat Pal vs. State Joginder Lal vs. State Naresh Kumar alias Nambri vs. State State vs. Sat Pal & Ors. _______________________________________________________ CORAM: MR. JUSTICE J.P.SINGH, JUDGE. MR. JUSTICE SUNIL HALI, JUDGE. Appearing Counsel: For Appellant(s) : M/S Surinder Kour, Raghu Mehta & K.S.Chib, Advocates. For Respondent(s) : Mr. P. C. Sharma, AAG. i) Whether approved for reporting in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal : Yes _______________________________________________________ J.P. Singh, J : Jagattar Singh, a resident of Village Kothe Netar Barnai, was murdered at his house while he was sleeping with his wife and two minor daughters on May 19, 1992 at about 10.30 p.m. Faiz Singh, PW-4, his father, too was injured by the assailants on the same day. 2 Eighteen persons, found involved in the incident by the police, were sent for trial of the Murder of Jagattar Singh and causing injuries to his father. Acquitting others, learned Second Additional Sessions Judge, Jammu, the trial Court, has convicted Sat Pal, Joginder Lal and Naresh Kumar, sentencing them to :- (1) Imprisonment for life and a fine of Rs.5000/- under Section 302/34 RPC, (2) Imprisonment for five years and a fine of Rs.1000/- under Section 460 RPC, and (3) Imprisonment for two years and a fine of Rs.1000/- under Section 3/25 Arms Act. Those convicted and sentenced vide Judgment of June 29, 2007 and Order of June 30, 2007, of the trial Court, have filed Criminal Appeal nos. 11/2007, 12/2007 and 13/2007 seeking their acquittal and setting aside of the judgment and order impugned in the appeals. The trial Court too has made Reference seeking confirmation of the sentence awarded to the appellants. Facts leading to the filing of Criminal Appeals and Confirmation Reference No. 05/2007 are these:- 3 F.I.R no. 86/92 was registered at Police Station Domana under Sections 302,149,452 RPC and 3/27 Arms Act on the brief report of PW-3 Suraj Singh, to the effect that about 9/10 persons, armed with guns etc. broke the doors of Jagattar Singh’s house and entering therein with common intention to commit Murder, fired at Jagattar Singh, who died because of the fire arm injuries received at the hands of the assailants. Jagattar Singh’s father Faiz Singh too got injured in the occurrence. Jagattar Singh deceased was suspected to have been killed by persons belonging to the Megh Community, who were inimical to him. Referring to the Final Police Report, filed pursuant to the investigation carried out after the registration of FIR no. 86/92, the trial Court reveals the prosecution story as under:- One Ashok Singh had sought Mohan Lal and Kaki’s help to sell some land agreeing them to pay commission of Rs.10,000/- therefor. Mohan Lal and Kaki, though sold the land, but did not pay the sale proceeds thereof to Ashok Singh. They had retained the money for paying it to 4 Joginder, Ranjit and Naresh Kumar, accused. Negotiations initiated by Ashok Singh, with the help of Jagattar Singh, deceased, Om Parkash and Vinod Sharma, however, did not mature and rather resulted in an altercation, when the deceased slapped Mohan Lal accused, a relative of Joginder Lal accused. Mohan Lal and Kaki are stated to have threatened the deceased of his murder through Joginder Lal, a life convict. Mohan Lal and Kaki, accused, accordingly, managed the release of Joginder Lal on Parole. They acquired arms to facilitate the murder of Jagattar Singh. An attempt made by Naresh Kumar, Joginder Lal, Ranjit Singh, Ashok Kumar, Kaki and Fouzi, in this respect, however, failed because of the non-availability of deceased Jagattar Singh, who, in the meanwhile, illegally sold 18 marlas of land belonging to Dharmarth Trust and in possession of Amar Nath, with the assistance of Parshotam Singh and Janak Raj. Ram Lal belonging to the Megh Community, tried unsuccessfully for preventive detention of the deceased. He later conspired with Joginder Lal, Babu Ram, Ashok Kumar and Baldev Raj on 16.05.1992 to kill the deceased. Arms arranged by Omkar accused were dumped 5 in a house for the purpose. A Taxi bearing registration no. 5520/JKT was hired for transportation of the arms and all the accused assembled in the house of Krishan Dutt, who paid an advance of Rs.5000/- for murder of the deceased. On the day of occurrence, Joginder Lal accused managed firing by Sat Pal accused at Chinore Chowk, to divert the attention of police from the place of occurrence, And on 09.05.1992, at about 10.30 p.m, the accused, in furtherance of the common object, forced entry in the house of the deceased and shot him dead in presence of his wife Smt. Naresh Kumari alias Santosh. After committing the Murder, they fled away. In support of its case, the prosecution examined fifty six out of seventy seven witnesses listed in the Final Police Report. Referring to the resume of the statements of the prosecution witnesses, examined during the trial, the material placed by the prosecution on records, the trial Court, after brief appreciation of the ocular version, barring those of the investigating Police officers, summed up his debate as under:- 6 1) Jagattar Singh had died because of multiple bullet injuries on his person. 2) The prosecution witnesses had named many as assailants but there is consensus amongst eye witnesses about the presence of Sat Pal, Joginder Lal and Naresh Kumar alias Numbri at the scene of occurrence and their participation in the commission of crime. 3) There is ample evidence indicating that Sat Pal, Joginder and Naresh had entered the house of the deceased at night and shot him dead in presence of his wife. 4) Baldev Raj, who died during the investigation and Ashok Kumar accused had assaulted PW- 4 Faiz Singh. According to the trial Court, whereas there was clinching evidence on records about the involvement of the appellants yet there was lot of uncertainty about the complicity of the other accused. Prosecution witnesses are stated to have given different accounts about the involvement of rest of the accused and the main problem 7 faced by the trial Court in recording conviction against them was uncertainty about their identification. Referring to the statement of PW-6 Naresh Kumari, the wife of the deceased, it is indicated that she could identify none others than the appellants. PW-4 Faiz Singh and PW-7 Shanti Devi too were not sure about the identity of all the accused. The trial Court, accordingly, referring to the law laid-down by Hon’ble Supreme Court of India as to the necessity of holding the Test Identification Parade during investigation of a case, where the witnesses would identify the accused, for the first time in the Court, did not consider it safe to rely upon the statements of PWs-4, 6 & 7 to convict the accused other than the appellants. Insofar as the appellants are concerned, the trial Court has found the statements of PWs-4, 6 & 7 worthy of credence, for convicting them, getting support to its conclusion from the recovery of the weapons stated to have been possessed and used by the appellants at the time of commission of the offence. In a nut-shell, appellants’ conviction rests mainly on the testimony of PW-6, Naresh Kumari, the wife of the 8 deceased, who is stated to be an eye witness to the whole occurrence. Evidence of PWs-4 & 7 and other prosecution witnesses as to the Sat Pal and Naresh Kumar, appellants’ Disclosure Statements and recovery of weapons has been found corroborating the evidence of PW-6. The question that, therefore, falls for consideration in all these Appeals and the Confirmation Reference is, as to whether or not the statement of PW-6 Naresh Kumari, is worthy of credence to sustain appellants’ conviction for the murder of Jagattar Singh? Another question which would require consideration, is as to whether the Disclosure Statements made by the appellants and recovery of the weapons of offence at their instance, provide corroborative evidence in the case to justify appellants’ conviction for criminal conspiracy and the murder of Jagattar Singh. We have gone through the evidence which the prosecution has produced in support of its case. The resume of the statements of the prosecution witnesses, reflected as such in the trial Court’s judgment is neither the complete reproduction of the statements nor is the gist of 9 circumstances relevant for acceptance or otherwise of their testimony. The statements made by the two Investigating Police Officers PW-75 Shahid Parvez and PW-76 Krishan Pal Singh who had conducted substantial part of the investigation, do not appear to have been taken into consideration by the trial Court while considering the acceptance or otherwise of the evidence of those prosecution witnesses, relying on whose testimony, the appellants have been convicted. Reference to relevant excerpts appearing in the statements of the witnesses, on whose testimony the conviction of the appellants is based, in the light of the statements of the two Investigating Police Officers, thus becomes absolutely necessary. We would, therefore, first deal with the statement of the prosecution’s Star Witness PW-6 Naresh Kumari, in whose presence, her husband Jagattar Singh, according to the prosecution case, had been murdered by the appellants. Statement of PW-6 was recorded, in parts, on six occasions. Five times after the framing of charge against the 10 accused other than Joginder Lal and on the sixth occasion after the charge was framed against Joginder Lal. In her statement recorded on 08.02.1993, she had identified appellants, Sat Pal and Joginder besides one Nikka, who, according to her, had entered Jagattar Singh’s room and fired at him. In the statement recorded on 12.10.1993, she had, inter alia, indicated that the Murder had taken place on 19th May and her statement was recorded on 26th May. She refuted the suggestion that her statement had been recorded even prior to that by PW-75 Shahid Parvez, the earlier Investigating Police Officer. In her statement recorded on 13.10.1993, she indicated that none had asked her about the occurrence before PW 76, K.P.Singh’s recording her statement. She was sick and sad before her statement was recorded for the first time by K.P.Singh. The neighbours including PW-3 Suraj Singh reached on spot after 10/15 minutes of the occurrence. Neither had she told the neighbours about the occurrence nor had anyone else informed them about the occurrence. 11 In this statement, she indicated that Rattan Lal, Krishan Lal, Pappi and Babu Ram accused were residents of her Village whereas rest of the accused were not from her Village and she had seen them for the first time at the time of the occurrence and thereafter in the Court. In her statement recorded on 14.10.1993, she indicated that on the evening of the day of occurrence she had seen Joginder and Rattan near her house when they were passing by the house and Rattan accused had shown her husband Jagattar Singh’s house to Joginder. She had seen both of them while sitting near a Canal-tributary because of the non-availability of power that time in the area. Before that evening she had never seen Joginder. In her statement recorded on 06.09.1994, she again changes her stance to say that she knew Rattan Lal, Krishan, Pappi, Sat Pal and Joginder before the occurrence. Police had, however, not got them identified by her during the investigation of the case. In the same statement, she says that the assailants had fired indiscriminately to commit the Murder of her husband by introducing the barrels of their 12 guns in the room through the broken portions of the door and could not, therefore, be identified before their entry into the room. She had identified Joginder and Sat Pal when they started firing in the room. In the same statement, she says that the assailants, who had indulged in firing, other than Joginder and Sat Pal, could not be identified by her. She has further indicated in the statement that Sat Pal appellant had come to attend Krishan Lal brother’s daughter’s marriage and had parked his motorcycle in front of her house. She, however, did not disclose about this fact to the police during the investigation of the case. In the statement recorded on 11th February, 2003, she stated that there were 10 to 12 assailants who had attacked. PW-75 Shahid Parvez had immediately reached on spot. Whatever statement she had narrated earlier in the Court, had been narrated by her to PW-Shahid Parvez, but her statement was recorded only by PW-K.P.Singh. Her father- in-law and mother-in-law had not told anything about the occurrence to Shahid Parvez. They had told about the occurrence to PW-K.P.Singh. She had not told Shahid Parvez about the names of any accused because Shahid 13 Parvez had not asked anything from her. She had not seen Joginder before the occurrence. When the assailants were firing, they were naming each other, and it was because of this reason that she had come to know about the name of Joginder Lal. She had seen Joginder Lal on the day of occurrence, and thereafter, in the Court and had not seen him anywhere before that. She knew nothing about Joginder Lal before the occurrence. Neither Joginder Lal had ever come to her place nor had she gone to Joginder Lal’s place before the occurrence. The neighbours had reached on spot when the occurrence was going on. PW-76 Krishan Pal Singh, in answer to a specific question by the defence has indicated that after recording the statement of Naresh Kumari on 26.05.1992, he was unable to know about the particulars and description of Sat Pal, Karan Raj and Bittoo and it was because of this reason that he could not find them out and indicate the name of the any of the accused in the documents prepared during the investigation because no case had been found proved against any of the accused till that time. He admitted as 14 correct the suggestion of the defence that Naresh Kumari had not seen any of the assailants before the occurrence, barring Rattan Lal and Krishan Lal. He had not got Sat Pal, Karan Raj, Numbri and Bitto identified by PW-6 Naresh Kumari. It was after July 1, 1992, that with the arrest of Sat Pal, the whole picture about the occurrence became clear and he had thereafter reflected Joginder Lal as accused in the documents prepared during the investigation. In view of the contradictory statements made by PW-6 Naresh Kumari about her identifying the appellants on spot, on the day of occurrence, it becomes difficult to accept her statement, as such, in the absence of any Test Identification Parade conducted by the Investigating Agency to test Naresh Kumari’s power of observation and her capability to identify unknown persons whom she had seen only once and that too when eighteen persons are stated to have barged into her house firing indiscriminately to eliminate her husband. The statement of the witness, when read, in the background of the facts and circumstances of the case, when the assailants had not been named in the FIR lodged 15 immediately after the occurrence by PW-3 Suraj Singh and the names of the assailants had not appeared anywhere in the police records from 19th May, 1992 to 25th May, 1992, renders it highly unsafe to place reliance thereon as to the identification of the assailants by her at the time of the occurrence. Holding of Test Identification Parade, in such situation, when the witnesses had not known the assailants before the occurrence, was thus a compelling necessity for the Investigating agency to bring on records the required evidence to prove the identity and complicity of those responsible for the occurrence. PW-4 Faiz Singh, who had been injured in the incident before the actual occurrence where Jagattar Singh had been fired at by the assailants, too has categorically stated while under cross-examination that he had told PW-3 Suraj Singh about Krishan Dutt and his son as assailants because he could not identify rest of the accused at the time of occurrence. His evidence too thus does not prove anything incriminating against the appellants, hinting at their participation in the occurrence. 16 Likewise, PW-7 Shanti Devi too does not indicate about the identification of the appellants at the time of the occurrence. In view of the above mentioned infirmities appearing in the prosecution case, We find the trial Court to have erred in holding that there was enough evidence on records indicating the involvement of the appellants in conspiracy and consequent Murder of Jagattar Singh. Evidence of PW-6 Naresh Kumari and other witnesses who had identified the appellants first time, after the occurrence, in the Court, is thus valueless and cannot be relied upon to prove the appellants as assailants. Trial Court’s reliance on the Disclosure Statements and recovery of the weapons of offence too may not create any incriminating circumstance against the appellants, for the weapons seized in the case have not been proved by the prosecution to have either been in the working condition or the empties seized from the place of occurrence, to have been fired through the seized weapons. This is so because the report of the Forensic Science Laboratory, to which the seized material had been sent for examination, was neither 17 placed on records nor any evidence led in this behalf to prove as to what was the report of the Forensic Science Laboratory regarding the seized empties and the weapons of offence. The findings of the trial Court proving charge under Section 120-A of the Ranbir Penal Code against the appellants, is not supported by any evidence and is rather based on just conjectures and surmises. In any case, there being no cogent and acceptable evidence as to the identification of the appellants as the assailants in the occurrence which took away the life of Jagattar Singh, the charge found established against them under Section 120-A RPC by the trial Court, too would not sustain. Accordingly, for all what has been said above, the findings recorded by the trial Court that the appellants had been identified at the place of occurrence, And armed with a gun and pistol, had, in furtherance of common intention, pursuant to a conspiracy, entered the house of Jagattar Singh and shot him dead, is found unsupported by any legal evidence. The finding is, accordingly, set aside. 18 Resultantly, the conviction recorded by the trial Court against the three appellants cannot be sustained. Allowing these three Appeals and declining the Confirmation Reference, the appellants are, accordingly, acquitted. They shall be set free forthwith, if not required in any other case. Criminal Appeal nos. 11/2007, 12/2007, 13/2007 and Confirmation Reference no. 05/2007 are, accordingly, disposed of. Before parting, We cannot help observing that majority of the criminal cases fail in the Courts primarily because of improper investigation and requisite prosecution. Experience shows that because of the failure of the concerned agencies to monitor the investigation and prosecution of criminal cases, those responsible for inefficient investigation and prosecution, go scot-free without any accountability for failure to discharge their due functions and duties. Courts have been observing time and again about these failures. Observations of the Courts do not, however, appear to have awakened the concerned State functionaries 19 responsible for maintaining rule of law in achieving the Constitutional goal perceived for a welfare State. Efficient and scientific investigation, followed by vigorous prosecution of those found involved in the disturbance of rule of law, is the hall mark of Criminal Justice Dispensation System. State is, therefore, required to institutionalize the Investigation and Prosecution system so that Criminal Justice System delivers to the masses what has been contemplated by the Constitution makers. State through its Chief Secretary is, accordingly, directed to report to this Court within a period of six months, the steps which it intends to take to ensure that meaningful investigation and prosecution of the criminal cases is carried out so as to advance the cause of Criminal Justice Dispensation System. (Sunil Hali) (J. P. Singh) Judge Judge JAMMU 15.04.2009 Pawan Chopra