Jammu & Kashmir High Court
Reserved On :- 29.05.2025 vs State Through Public Prosecutor on 1 July, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
2025:JKLHC-JMU:1524-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 9/2017
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CONF No. 2/2016
Reserved on :- 29.05.2025
Pronounced on :- 01.07.2025
Maan Chand S/o Sh. Firangu R/o .... Petitioner/Appellant(s)
Morha Baggar, Village Jakhed,
Tehsil Ramnagar, District
Udhampur A/p District Jail
Udhampur.
Through:- Mr. Anmol Sharma, Advocate
V/s
State through Public Prosecutor .....Respondent(s)
Principal Sessions Judge,
Udhampur.
Through:- Mr. Raman Sharma, AAG with
Ms. Saliqa Sheikh, Advocate
CORAM : HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
HON‟BLE MR. JUSTICE SHAHZAD AZEEM, JUDGE
JUDGMENT
Per:- Shahzad Azeem, J
1. The appellant (hereinafter referred to as “accused”) has thrown
challenge to the judgment and order dated, 17.12.2015, respectively,
passed by the learned Principal Sessions Judge, Udhampur (hereinafter
referred to as “the trial Court”), whereby the accused has been convicted
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for commission of offence under Section 302 RPC and sentenced to
undergo rigorous imprisonment for life and a fine of Rs. 6,000/- for
committing murder of his wife, namely, Kanta Devi (hereinafter referred
to as “deceased”) and in default of payment of fine, the accused shall
undergo imprisonment for six months. The sentence of life imprisonment
was kept subject to confirmation by the High Court. Now, by a common
judgment, we propose to adjudicate the appeal as well as reference made
by the trial Court in terms of Section 374 of J&K Code of Criminal
Procedure.
FACTUAL MATRIX
2. The investigation into the alleged commission of crime sprang out
of written report, EXT-P1 lodged by PW-1 Des Raj (real brother of
deceased) accompanied by PW-2 Ravi Kumar in the wee hours of
27.10.2012, precisely at 6.10 a.m. It was alleged in the report by PW-1,
EXT-P1 that on 26.10.2012, he and his sister (deceased) were sleeping in
a room, when at about 2 a.m, on, 27.10.2012, his brother-in-law (jija),
who was sleeping in other room, woke up and with a criminal intention to
commit the murder of the deceased, armed with wooden staff (Dalath) and
sickle (Darath) started assaulting deceased. The accused also pinned him
down with foot and took out kerosene oil from the lamp (Diya-Glass
bottle) and set the bedding of the deceased on fire with lamp. On finding
opportunity, PW-1 Des Raj said to have escaped and informed, PW-2
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Ravi Kumar and PW- Rajinder Kumar (witness given up by the
prosecution), who were sleeping in their rooms. By the time, he
accompanied by PW-2 Ravi Kumar and PW- Rajinder Kumar had come
back, the accused after committing murder of the deceased and setting her
bedding on fire fled from the spot.
3. Accordingly, the initial report lodged by PW-1 Des Raj vide EXT-
P1 was entered in the Daily Diary of police post, Dudu, vide No. 17 and
on its dispatch to Police Station, Basantgarh, a formal case being FIR No.
30/2012 under Section 302 RPC and 4/25 Arms Act was registered
against the accused on 27.10.2012 at 9.10 a.m and investigation entrusted
to PW-13 Vikram Kumar (SI).
4. PW-13 Vikram Kumar proceeded to the spot and the dead body of
the deceased and place of occurrence were got photographed, site plan
was prepared, blood stained and unstained clay, lamp (glass bottle), its
cap, matchbox and burnt quilt, were seized and sealed. On the spot,
Autopsy conducted on the body of deceased. Burnt wearing apparels of
the deceased were seized and the blood samples obtained. The statement
of witnesses under Section 161 and 164-A, Cr.PC, were also got recorded.
The accused was arrested and on the basis of his disclosure statement, the
weapon of offence i.e. blood stained wooden staff and sickle were
recovered and seized. The finger prints from the sickle were lifted and
preserved. Other codal formalities were also completed.
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5. From the material collected during investigation, it came to fore that
the accused and deceased after marriage started residing in the house of
Chaman Lal and the couple was blessed with a baby, who at the time of
occurrence was 2 ½ years old. The accused invariably used to stay away
from home to work as a laborer in Katra and deceased had been staying at
home along with PW-1 Des Raj (her brother). The prosecution story
further proceeds on the premise that the accused was suspicious that in his
absence, deceased had developed extra-marital relations. The accused
alleged to have also warned and counseled the deceased, but deceased did
not mend her ways.
6. Further prosecution case is that at the time of occurrence, the
deceased was sleeping in a room along with her baby and PW-1 Des Raj,
whereas, the accused was sleeping in another room, who was on the
looked out and in the meanwhile, deceased said to have went out of her
room, but when returned after a considerable long time, the accused
inquired from the deceased the reason for going out during late night, the
deceased did not reply. Thereupon, the accused with a criminal intention
to commit her murder indiscriminately assaulted the deceased with
wooden staff (Bamboo Stick) and sickle and thereafter, accused said to
have taken out kerosene oil from the lamp (Diya) and poured on deceased
and on her bedding and set the same ablaze. This way committed the
murder of the deceased.
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7. Accordingly, on completion of investigation final Police report was
presented against the accused in the Court, formal charge under Section
302 RPC drawn up, who denied the charge and claimed to be tried.
8. The prosecution has examined 13 witnesses out of 18 witnesses. It
is noteworthy that though the name of finger print expert, PW-12 Hakim
Abdul Rashid was not figuring in the witness list, but during trial, the
Court has recorded his statement on 17.05.2013.
9. When the accused was examined under Section 342 Cr.PC, so as to
explain the circumstances appearing in the evidence against him, the
accused while denying the veracity of the prosecution case submitted that
a false case has been foisted on him and further put forth the explanation,
note whereof shall be taken at appropriate stage. However, despite
opportunity was granted to the accused, he did not lead the evidence.
10. The trial Court on appreciation of the evidence and material
produced during the trial convicted and sentenced the accused vide
judgment and order impugned.
11. It is noteworthy that there is variation in numbering of prosecution
witnesses given in impugned judgment and police challan, therefore, we
shall be referring the prosecution witnesses as per the numbering assigned
in the impugned judgment and rest of the witnesses who were either not
examined or given up shall be referred by name.
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SUBMISSIONS
12. Learned counsel for the appellant vehemently argued that there are
contradictions in the testimonies of the prosecution witnesses regarding
situs of occurrence, the manner of conducting post-mortem and recovery
of alleged weapon of offence, so much so, the prosecution case totally
runs contrary to the evidence led during trial, however, the trial Court did
not appreciate the evidence on record and banked upon the solitary
statement of PW-1 Des Raj, who was not capable of perceiving the
relevant facts in its real perspective.
13. Learned counsel submits that the motive of the alleged murder of
the deceased being not proved during the trial, as PW-2 Ravi Kumar and
PW-3 Poli Devi have negated the motive of the crime as alleged by the
prosecution. It is also submitted that the prosecution story is doubtful on
the ground that PW-2 Ravi Kumar was examined, but his real brother
PW-Rajinder Kumar (given up by the prosecution) was dropped for no
reason, despite cited as eye witness.
14. As per learned counsel PW-Mansa Ram, who was attesting witness
to alleged disclosure statement as well as recovery memo of the alleged
weapon of offences was also given up by the prosecution. Learned
counsel for the appellant further submits that the trial Court has not
considered the aspect that the prosecution has embossed three identical
seals with impression “B” for making the seizures which were made on
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27.10.2012, 28.10.2012 and 29.10.2012 respectively. He would further
argue that the three Fard Superdnamas i.e. EXT-P9/I to EXT-P9/III
bearing the impression of identical seals, made the entire seizure highly
suspicious and the alleged recoveries doubtful as the seals used by the I/O
were identical and handed over to PW-6 Tilak Raj thrice on three different
occasions who is a police personnel.
15. It is also canvassed that the trial Court has ignored the aspect that
the seizure i.e. kerosene lamp, quilt, match sticks etc were not shown to
the PW-1 Des Raj in the Court. Therefore, prayed for the acquittal of
appellant.
16. Per contra, Mr. Raman Sharma, learned AAG submits that the trial
Court after proper appreciation of evidence and on sound principles of
law, rightly convicted and sentenced the accused. According to learned
counsel, once PW-1 Des Raj had deposed vividly the entire occurrence
and withstood the cross-examination, in that event, the minor
discrepancies here or there lose the significance. He would further argue
that there is nothing on record from where, it can be inferred that by
securing the conviction of the accused, the prosecution witnesses may
draw any benefit nor any reason is put forth indicating that the accused is
falsely implicated, therefore, no fault can be found with the order and
judgment of the trial Court. Learned counsel further submits that once
ocular account and recovery of weapon of offence which are further
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corroborated by the expert evidence points towards the guilty of the
accused, there cannot be anything short of conviction, which has been
rightly handed down by the learned trial Court. While summing up his
arguments, learned counsel for the respondents submits that the
prosecution remained successful in bringing home the guilt against the
accused beyond all shadow of doubt by proving presence of the accused at
the time and place of occurrence and also motive behind such gruesome
act, therefore, no fault can be found with the impugned judgment and
order. Thus, prays for the dismissal of appeal.
ANALYSIS
17. There is no denial to the fact that the trial Court had discussed the
points under consideration and also justified its reasoning by the case law.
It is equally noteworthy that the trial Court while coming to the
conclusion that the prosecution remained successful in bringing home the
guilt against the accused mainly relied upon the testimony of PW-1 Des
Raj. Though discrepancies, contradictions, improvements and other
shortcoming pointed out by the defence, but the trial Court was of the
opinion that all such loopholes, did not go to the root of the prosecution
case, rather are expected from the truthful witnesses. The trial Court is of
the firm view that the testimony of PW-1 Des Raj is of such sterling
quality that the contradictions or discrepancies if any, in the testimonies of
the witnesses, recovery of weapon of offence, expert evidence, search or
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seizure, initial report, forwarding of First information to the Magistrate
etc. need not to be given much credence, particularly when by securing
the conviction of the accused, the prosecution witnesses in no manner
would draw any benefit.
18. Now, let us examine the legality of impugned order and judgment
to find out how far prosecution remained successful in bringing home the
guilt against the accused.
19. Undeniably, the prosecution version regarding the alleged murder
of the deceased hinges on the short point that the deceased had developed
extra marital relation in the absence of the accused, who used to stay away
from home to work as Laborer at Katra. In the estimation of the
prosecution, the stubborn behaviour of the deceased led to the crime, in
that, the accused alleged to have advised and counseled the deceased to
desist from indulging in extra marital relation, but because the deceased
said to have a headstrong attitude, therefore, continued to have relations
outside the marriage and on that fateful night the accused finding the
deceased in the intervening night of 26th /27th October, 2012, absent from
the room for considerable time and on her return, could not offer any
plausible reason, assaulted her with wooden staff and sickle followed by
setting her on fire by pouring kerosene oil which led to the death of the
deceased. In nutshell, there was specific motive attributed for the alleged
murder of the deceased, as per the prosecution case.
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20. On taking into consideration, the prosecution case, holistically, one
would find that during the time of occurrence, i.e. at about 2 A.M, on
27.10.12, when accused allegedly assaulted the deceased and poured
kerosene oil before setting her on fire only PW-1 Des Raj was present in
the room where deceased was sleeping along with PW-1 Des Raj and 2 ½
year baby. This seems to be the reason why the trial Court had laid much
emphasis on the evidence of PW-1 Des Raj and whatever deposed by him
is taken as final word, ignoring shortcomings on the ground that same
would fade in view of the testimony of the ocular evidence of PW-1 Des
Raj, who happens to be the brother of the deceased and as such had no
reason to falsely implicate the accused.
21. Let us at first examine the veracity of occurrence and find out that
as to whether prosecution remained successful in proving it beyond all
shadow of doubt.
OCCURRENCE
22. PW-1 Des Raj, who was the real brother of deceased and is the star
witness of the prosecution story testified to the initial report EXT-P1
wherein, the witness specifically mentioned that the accused poured the
kerosene oil on the bedding of the deceased and set the same on fire,
however, he escaped from the spot and informed PW-2 Ravi Kumar and
PW-Rajinder Kumar and when they had come back at the place of
occurrence, the accused after committing murder of the deceased fled
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from the spot. To the contrary, when PW-1 Des Raj entered in the witness
box, he deposed that at the time of occurrence, on hearing hues and cries
of the deceased that she has been killed, he woke up and he saw the
accused was assaulting the deceased with wooden staff and sickle. The
accused threatened him and pinned him down with foot. The accused took
out kerosene oil from the lamp and poured on the deceased and she was
set on fire. It is noteworthy that it has also come in the evidence of PW-1
Des Raj that when he along with PW-2 Ravi Kumar and PW-Rajinder
Kumar had come back in the room where occurrence took place, the
accused fled from the spot on their arrival taking sickle and wooden staff.
According to PW-1 Des Raj, he had mentioned in the initial report EXT-
P1 that the baby of the deceased had sustained burn injuries on his back,
however, on going through EXT-P1, one would not find any such recital
therein.
23. There are inherent contradictions and improvements in the
testimony of PW-1 Des Raj. The factum of burn injuries, sustained by the
baby of the deceased, though according to PW-1 Des Raj has been got
mentioned by him in the initial report, EXT-P1, but same did not find its
mention in the said report. The initial report, EXT-P1 is immediate and
first version of the occurrence, wherein, it has been mentioned that the
bedding of the deceased was set on fire after pouring the kerosene oil
from the lamp, however, when PW-1 Des Raj entered in the witness box,
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he deposed that the accused poured kerosene oil on the deceased near the
door and assaulted him, therefore, there is contradiction between the two
versions and the manner of commission of offence as sought to be
projected by the prosecution.
24. If we take the first and immediate version of PW-1 Des Raj as true,
then the deceased was set on fire while she was lying on the bed and if the
version given in the Court is taken as true, then the deceased was near the
door where the kerosene oil was poured on her and she was set on fire.
25. There is another important aspect with regard to initial report, EXT-
P1 that it has been specifically mentioned in the initial report, EXT-P1
that by the time, PW-2 Ravi Kumar, PW-Rajinder Kumar and PW-1 Des
Raj had come back in the room, where alleged occurrence took place, the
accused fled from the spot after setting the bedding of the deceased on
fire. However, to the contrary it has come in the evidence of PW-1 Des
Raj that PW-2 Ravi Kumar and PW- Rajinder Kumar on being informed
about the occurrence by him and when they arrived at the place of
occurrence, the accused was there wielding sickle and wooden staff and
on sensing their presence, he ran away from the spot. Although there is
also contradiction that whether the accused was wielding sickle or
wooden staff or while fleeing from the spot, he took the weapon of
offence or left behind, but same shall be taken note of hereinafter.
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26. Therefore, there are contradictions and improvements insofar as
initial report, EXT-P1 and testimonies of PW-1 Des Raj and PW-2 Ravi
Kumar are concerned on the point; that manner in which deceased was
allegedly set on fire; burn injuries sustained by the baby and after
commission of alleged offence fleeing of accused from the spot.
27. Next point falls for consideration is, whether it is possible to inflict
multiple internal and external injuries of different dimensions by the
accused and no resistance is offered or struggle made by the deceased or
PW-1 Des Raj. According to PW-1 Des Raj, at the time of occurrence, the
accused was assaulting the deceased with wooden staff and sickle and she
was also set on fire. He was pinned down by the deceased with foot.
Meanwhile, he went to PW-2 Ravi Kumar and PW-Rajinder Kumar and
informed them about the occurrence. It has come in the testimony of PW-
2 Ravi Kumar that during the night of 26.10.12 at 2 °clock, PW-1 Des Raj
knocked at his window and informed him that the accused has killed his
sister (deceased). From the testimonies of PW-1 Des Raj and PW-2 Ravi
Kumar, it can be noticed that when PW-1 Des Raj escaped from the place
of occurrence to inform PW-2 Ravi Kumar and PW-Rajinder Kumar
about the occurrence by that time, the deceased was dead, therefore, going
by the case of the prosecution and the testimony of PW-1 Des Raj, it
appears that the accused assaulted the deceased with wooden staff and
sickle at the same time he poured kerosene oil on the deceased, inasmuch
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as, surprisingly, as the version of PW-1 Des Raj goes, during the time of
occurrence, which lasted about 2-3 hours, the accused pinned down the
PW-1 Des Raj with foot. When PW-1 Des Raj was cross-examined on this
aspect, he deposed that the accused was wielding in one hand sickle, and
in the other hand, wooden staff, but again rectified his statement and
deposed that the accused was holding the deceased with one hand and in
the other hand sickle.
28. As per the prosecution story, the accused alone was the author of
this crime, therefore, it appears improbable to assault the deceased with
two weapons of offence and simultaneously to pour the kerosene oil on
the deceased, particularly, when PW-1 Des Raj who was shown 17 years
old as per EXT-P1 was also present. On this point, our conscious do not
allow us to buy the version of the prosecution witnesses, because if any
person would be subjected to such a gruesome assault then in all
probability, he would raise hue and cry, shall struggle and try to escape,
particularly when there is also support of real brother, but to the contrary
offering no resistance, making no struggle for 2-3 hours, till the deceased
died, cast a doubt on the prosecution story, as it runs in diametrically
opposite direction to the natural human behaviour.
29. It has categorically come in the testimony of PW-2 Ravi Kumar that
the accused and deceased were residing in the house of his uncle, where
he too is putting up and they all were housed under one roof. The witness
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further deposed that the distance between his house (Room) and the room
of the deceased was about 200 feet, however, the witness rectified that the
total length of house is 200 feet, meaning thereby, the accused and the
deceased, as well as PW-2 Ravi Kumar and PW-Rajinder Kumar were
putting up in the different rooms in one house, having common roof and
the length of the house was about 200 feet, that is what deposed by PW-2
Ravi Kumar.
30. At the same time, it has come in the testimony of PW-13 Vikram
Kumar (I/O) that at the time of occurrence, the accused and the deceased
had been sleeping in separate rooms having distance of about 25-30 feet
and this factum that deceased and the accused sleeping separately was
also find support from the testimony of PW-1 Des Raj.
31. PW-1 Des Raj and PW-2 Ravi Kumar deposed that the accused
was not sleeping in the room of the deceased and there was a distance of
about 25-30 feet between the rooms of accused and deceased, therefore, it
seems improbable, rather fraught with risk to venture into such gruesome
act, particularly when under the same roof, PW-1 Des Raj, deceased, PW-
2 Ravi Kumar, PW-Rajinder Kumar and their families were also putting
up. Further doubt is cast, when PW-1 Des Raj deposed that the accused
assaulted the deceased for about 2-3 hours and during such time, accused
pinned him down with foot, which is highly improbable and unconvincing
that one person assaulted with more than one weapons for 2-3 hours,
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without attracting the attention of any neighbour or other occupant of the
house till they are informed by PW-1. The conduct of PW-1 Des Raj is
also doubtful in view of his conflicting depositions that the accused did
not beat him nor he speak to the accused, and to the contrary also deposed
that for 2-3 hours when the accused was assaulting the deceased, he was
pinned down with foot. In the same breath, PW-1 Des Raj also deposed
that he stated before the Presiding Officer (statement recorded under 164-
A Cr.PC) that he asked the accused as to why he is assaulting her, on
which the accused replied that he shall kill him also. It has also come in
the testimony of PW-1 Des Raj that when he woke up on hearing hue and
cry of the deceased, he was threatened by the accused and then he was
pinned down with the foot. It renders the conduct of PW-1 Des Raj
doubtful and also manner of commission of crime becomes highly
suspicious beyond normal human conduct expected in such a situation.
This also casts doubt on the occurrence and the manner of the commission
of crime as alleged by the prosecution.
32. PW-1 Des Raj deposed that during the night of occurrence, the
electricity was on, but normally, they switch off the lights. PW-1 Des Raj
further deposed that after pouring kerosene oil on the deceased, she was
set on fire with the burning lamp. On this point, even PW-13 Vikram
Kumar (I/O) went rather one step ahead and deposed that it has come in
his investigation that at the time of occurrence, accused poured kerosene
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oil from the lamp and set her on fire by igniting matchstick. On the point
of setting of the deceased on fire, there are mutual and inherent
contradictions between the testimonies of PW-1 Des Raj, and PW-13
Vikram Kumar (I/o). At first instance, it does not sound to the reason that
if electricity was on, in that event, there was no question of lightning of
kerosene oil lamp and furthermore, if the testimony of PW-13 Vikram
Kumar (I/O) is to be believed, then it belies the testimony of PW-1 Des
Raj who happens to be the eye witness and deposed that accused set the
deceased on fire with the burning lamp. Therefore, the extent of credence
attached to the testimony of PW-1 Des Raj was unwarranted as credibility
of PW-1 is shaken by his conduct and further belied by the prosecution
witnesses.
33. The manner in which the deceased said to have set on fire and the
place where occurrence took place becomes doubtful in view of the
foregoing circumstances as pointed out by us which cast doubt on the
prosecution story and this fact is further strengthened when two
conflicting versions of PW-1 Des Raj and PW-13 Vikram Kumar (I/O) are
considered in this perspective. PW-1 Des Raj deposed that the accused
poured kerosene oil on the deceased and she was set on fire near the door,
however, when PW-13 Vikram Kumar is specifically confronted on this
point, he deposed that when he entered in the room, where occurrence
took place, the dead body was lying at the left side, but near the door, he
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found no burn marks or blackened spots. Therefore, on this account also,
the testimony of PW-1 Des Raj is belied, because if the version of PW-1
Des Raj would be taken as truthful, then, definitely, near the door, PW-13
Vikram Kumar (I/O) would have spotted fire marks and the blackened
spot, therefore, the manner of commission of offence is belied none other
than, the ocular witness himself. The trial Court erred in not properly
evaluating the discrepancies, contradictions, improvements, etc as are
visible in the prosecution case on the simple ground that version of PW-1
Des Raj, the eye witness is of sterling quality, which we do not find.
34. The credibility of the testimony of PW-1 can further be gauged, as
it has come in his cross-examination that at the night of occurrence, he did
not remember when they slept as they do not own a watch, but in the same
breath, he deposed that while going to Dudu (Police Post), he saw time on
mobile phone. Therefore, it is highly improbable that at the time of
occurrence, PW-1 Des Raj was not knowing the time when they slept.
This fact assumes relevance in view of the surrounding circumstances and
thus casts doubt regarding the manner, the time and the place of
occurrence, as alleged by the prosecution.
35. Since we have taken note of the fact that the accused, deceased,
PW-1 Des Raj, PW-2 Ravi Kumar, PW-Rajinder Kumar and their families
were putting up in one house and under one roof, therefore, it was
expected rather it was but natural that after PW-1 Des Raj informed PW-2
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Ravi Kumar and PW-Rajinder Kumar about the occurrence, the other
family members too would have rushed to the room where occurrence
took place. However, to the contrary, PW-1 Des Raj, in cross-examination
specifically deposed that only PW-2 Ravi Kumar, PW-Rajinder Kumar
had come at the place of occurrence, but the wife of PW-2 Ravi Kumar
did not come there. This fact also cast doubt on the prosecution story that
only two family members i.e. PW-2 Ravi Kumar and PW-Rajinder Kumar
had come, even after knowing about such gruesome murder, none from
the family members either arrived at the time of occurrence or associated
during investigation, so much so, the prosecution had given up PW-
Rajinder Kumar, who was cited as eye witness, therefore, absence of other
family members of PW-2 and also non-examination of such important
witnesses also casts doubt and puts dent in the prosecution case.
36. Now, on switching over to other aspects of the occurrence, as the
prosecution story goes, PW-13 Vikram Kumar (I/O) on receiving the
information regarding the occurrence on, 27.10.12 proceeded to the spot
along with police team, including PW-5 Dalbir Singh (HC Photographer),
PW-HC Kabla Singh (given up by the prosecution) PW-6 Tilak Raj and
two lady police personnel and PW-7 Arif Choudhary (FSL Expert) and
after completing partial codal formalities, returned to Udhampur on,
28.10.12 and again on 29.10.12, went to village Jageth in search of the
accused. Therefore, as per the testimony of PW-13 Vikram Kumar (I/O),
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he along with police team proceeded to the spot on 27.10.12 and during
night, stayed there and returned to Udhampur on 28.10.12 and whereafter,
in the next day i.e. on 29.10.12, went to the village in search of the
accused. PW-6 Tilak Raj deposed that after completing the formalities at
the place of occurrence on 27.10.12, they returned to Udhampur and again
went there on 28.10.12, and returned back. He further deposed that on
29.10.12 again they proceeded to the spot. At the same time, it has come
in the testimony of PW-5 Dalbir Singh (Photographer) that he along with
PW-13 Vikram Kumar (I/O), FSL, and police team, went to the spot from
Udhampur. While contradicting the testimonies of PW-5 Dalbir Singh and
PW-13 Vikram Kumar (I/O), the FSL expert, PW-7 Arif Choudhary has
denied the suggestion that he went to the spot along with PW-13 Vikram
Kumar (I/O). The witness also contradicted his earlier statement made
under Section 161 Cr.PC where, it was stated that he went to Village
Jageth Baggard along with PW-13 Vikram Kumar (I/O). This has also
come in the testimony of PW-7 Arif Choudhary that he went to the spot
with driver and photographer (PW-5 Dalbir Singh). The witness has
denied the suggestion that he and PW-5 Dalbir Singh did not go on the
spot and they have completed all the formalities in the police station itself.
PW-5 Dalbir Singh (photographer) deposed that he took the photographs
of the place of occurrence and also at the time of conducting of post-
mortem on 28.10.12, he photographed the dead body. When this witness
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was confronted with the photographs of the occurrence, including that of
dead body of the deceased, which are Mark-1 to Mark-24. None of such
photographs bear the date, 28.10.12 i.e when the post-mortem on the dead
body was said to have been conducted. The witness justified this omission
by deposing that it is omitted because of mistake.
37. The presence of prosecution witnesses at the time, day and place of
occurrence further becomes doubtful when we go through the testimony
of fingerprint expert, PW-12 Hakeem Abdul Rashid. PW-12 Hakeem
Abdul Rashid (fingerprint expert) deposed that questioned prints Q1 and
Q2 were found identical with the specimen prints S1 and S4. However,
witness further deposed that it is not possible to get clear finger
impressions like Q1 and Q2 from sickle (Dharath). During his re-
examination, the witness has stated that seized Dharat (sickle) has rough
surface so clear impressions like Q1 and Q2 cannot be lifted from such
surface.
38. These all circumstances when taken collectively, cast doubt on the
presence of the prosecution witnesses right from the day and time of visit
to the place of occurrence by PW-13 Vikram Kumar, PW-5 Dalbir Singh
(photographer), PW-7 Arif Choudhary (FSL Expert), other posse of cops
and resultant, the respective investigation done and expert opinion
rendered by them. The prosecution also failed to prove the fingerprints
allegedly lifted from the weapon of offence at the time of recovery as in
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this regard, a specific question was put to PW-7 Arif Choudhary who
deposed that the fingerprints developed at the time of recovery not shown
to him in the Court.
RECOVERY OF WEAPON OF OFFENCE
39. As per the prosecution story, the recovery of weapons of offence
i.e. wooden staff (Dalath) and sickle (Dharath) was made pursuant to the
disclosure of accused on 29.10.12 that he has killed the deceased with
wooden staff and sickle and same has been concealed by him in the field
of PW-2 Ravi Kumar under a tree in the grass and same was recovered at
the instance of accused.
40. If the testimony of PW-1 Des Raj is to be believed then, the weapon
of offence would not have been recovered at the instance of the accused
for the reason that PW-1 Des Raj specifically deposed in his cross-
examination that while fleeing from the spot, accused left the sickle and
wooden staff. This is not the solitary evidence which casts doubt as to
what has been recovered was concealed by the accused, in that, PW-2
Ravi Kumar deposed that during the night of occurrence, when he along
with PW-Rajinder Kumar and PW-1 Des Raj reached on the spot, the
accused was present in the verandah wielding sickle without handle and
thereafter, he fled from the spot. If the testimony of PW-2 Ravi Kumar is
to be believed then, only accused was wielding sickle, therefore, question
of recovery of wooden staff did not arise. In any case, there is
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contradiction between the nature of weapon of offence allegedly used in
the crime and furthermore, whether while fleeing from the spot accused
fled leaving weapons of offence or fled with weapons of offence is also
not certain, rather it is marred by the contradictions.
41. Now, coming to the actual recovery allegedly made at instance of
accused. Two witnesses i.e. PW-4 Ramesh Chander (Sarpanch) and PW-
Mansa Ram, Chowkidar (given up by the prosecution) were cited as
witnesses to the disclosure and recovery. PW-Mansa Ra (Chowkidar) was
given up, however, PW-4 Ramesh Chander deposed that on the disclosure
of the accused, the weapons of offence were recovered from the spot on
the identification of the accused and PW-7 Arif Choudhary (FSL expert)
lifted the finger prints and handed over to the police. PW-7 Arif
Choudhary when entered in the witness box deposed that a wooden staff
and sickle without handle were concealed under the tree in the grass and
on the identification of the accused were recovered. There were blood
stains on the wooden staff, but no finger prints were found on it.
However, on sprinkling finger print powder on the sickle, two finger
prints were visible, which were lifted, sealed and preserved and handed
over to PW-13 Vikram Kumar (I/O). The witness when shown the sickle
in the Court, he deposed that today also, blood stains are not seen on the
sickle.
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42. To the contrary, PW-4 Ramesh Chander who is witness to the
recovery and is Sarpanch of the area deposed that the seized sickle and
wooden staff have the blood stains but wooden staff shown to him in the
Court did not contain blood stains, however, the sickle still contains the
blood stains. Therefore, there is a contradiction between the testimony of
PW-4 Ramesh Chander and PW-7 Arif Choudhary. If PW-7 Arif
Choudhary is to be believed, then only wooden staff had the blood stains,
but sickle did not contain blood stains. Even when the sickle was shown
to PW-7 Arif Choudhary in the Court, he deposed that the blood stains are
not visible on the sickle even today. However, to the contrary, PW-4
Ramesh Chander deposed that the seized sickle and wooden staff were
containing the blood stains, however, the wooden staff shown to the
witness in the Court did not contain the blood stains, but sickle contains
the blood stains.
43. Therefore, according to the witnesses to the recovery, there is a
contradiction as to what was recovered as per the prosecution case,
whether same was produced in the Court. On the point of recovery of
weapon of offence allegedly used in the crime, there is another flaw, in
that, PW-12 Hakeem Abdul Rashid (fingerprint expert) deposed that Q1
and Q2 were found identical with the specimens prints S1 and S4 of the
suspect, however, witness in cross-examination and also in re-
examination, specifically deposed that it is not possible to get clear finger
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impressions from the seized weapon of offence (Dharat) shown to the
witness in the Court, as Dharat has rough surface so clear impressions like
Q1 and Q2 cannot be lifted from such surface.
44. On the point of use of alleged weapons of offence, there is
contradiction right from the place of occurrence, to the alleged recovery
made, their examination by the expert and thus, the manner and the place
of occurrence as alleged by the prosecution, when pitched against the
alleged weapons of offence allegedly used in the crime, same becomes
doubtful, as same suffers from the contradictions, discrepancies, inasmuch
as, what was allegedly used during crime and was recovered had been
belied by the expert witness.
45. At this stage, it is important to note that when accused was
examined under Section 342 Cr.PC, so as to explain the circumstances
appearing in the evidence against him, on the point of alleged disclosure
and recovery at his instance, witness stated that he did not make any
disclosure rather, PW-7 Arif Choudhary (FSL expert) had taken his finger
prints at 4-5 places at Police Post Dudu but the trial Court completely
overlooked his statement.
MOTIVE
46. The motive for the alleged murder of deceased was her alleged extra
marital relation and despite the accused said to have counseled and
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advised the deceased, she did not budge from such acts, which led to the
killing of the deceased at the hands of the accused.
47. On going through the testimonies of PW-1 Des Raj, who was
residing with deceased, one would find that the witness was categoric in
deposing that the accused and the deceased were not fighting with each
other and further PW-2 Ravi Kumar also deposed that he never saw the
accused and the deceased fighting. PW-2 Ravi Kumar further went on to
depose that deceased was a chaste lady and he did not tell the police that
deceased was unchaste nor informed that the accused was suspicious
about the purity of the deceased. There is no iota of whisper in respect of
the chastity of deceased on account of her alleged extra marital relation.
However, PW-13 Vikram Kumar (I/O) deposed that it has come in his
investigation that accused and deceased were quarreling, which led to the
murder of the deceased at the hands of the accused by pouring kerosene
oil and setting her on fire with the match stick, however, none of the
prosecution witness have supported this version of PW-13 Vikram
Kumar, therefore, alleged motive attributed for the alleged murder of the
deceased is also not proved by the prosecution.
MEDICAL OPINION
48. The deceased died during the intervening night of 26/27 th October,
2012, however, post-mortem was conducted on, 28.10.12 in the house
where the accused and the deceased were putting up. The reason offered
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for not conducting the postmortem in the hospital (health centre) by PW-9
Dr. Din Mohd. (Medical Officer) was due to the protest of the public,
however, to the contrary, PW-13 Vikram Kumar (I/O) deposed that the
post-mortem on the dead body of the deceased was conducted by PW-9
Dr. Din Mohd on 28.10.12 at 7.30 a.m as she had already died and thus,
the question of taking the dead body of the deceased to the dispensary did
not arise. The witness further deposed that he did not know as to whether
before him, the police had made any attempt to shift the dead body to the
Primary Health Centre (PHC).
49. As to what were those exceptional circumstances under which the
post-mortem was conducted in the private house and the dead body was
not shifted to the nearest public health centre PHC is not coming forth and
what has been deposed by PW-9 Dr. Din Mohd. is in contradiction to the
testimony of PW-13 Vikram Kumar (I/O). The post-mortem report, EXT-
P17 was issued on, 20.11.12 i.e. after about 22 days of the conducting of
the post-mortem and when PW-9 Dr. Din Mohd. was specifically asked
about the preservation of any rough note of post-mortem examination held
on, 28.10.12, he could not produce any proof, therefore, whatever has
been observed and opined in the post-mortem examination report, EXT-
P17, becomes doubtful as the ordinary human memory goes, it is not
possible to remember the dimensions of the alleged injuries as have been
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shown in the report total numbering around 15 internal and external
injuries.
50. In this regard, be it noted that when the Doctor was specifically
asked that as to whether any note was prepared or preserved, the witness
could not offer any plausible reason and deposed that the post-mortem
report was not prepared by him on the spot, however, the findings were
recorded on the spot and final post-mortem report was prepared after
consulting Parikh’s Medical Jurisprudence. The witness deposed that
rough findings noted on the spot have not been seen by him.
51. When the contradictory reasons for conducting postmortem in
private house given by PW-9 Dr. Din Mohd and PW-13 Vikram Kumar
(I/O) are read in conjunction with the testimony of PW-5 Dalbir Singh
(Photographer), the post-mortem report further becomes doubtful, in that,
PW-5 Dalbir Singh deposed that at the time of post-mortem, he had
photographed the dead body, but when he was confronted with the
photographs, Mark-1 to Mark-24, none of the photographs contain the
date 28.10.12, i.e., when the post-mortem was conducted, however, PW-5
Dalbir Singh (Photographer) justified the omission to note down the date
on the post-mortem photographs said to have been taken at the time of
autopsy on 28.10.12 due to mistake.
52. As to whether the nature of injuries pointed out by the Doctor
during the post-mortem were possible by the weapon of offence allegedly
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used in the crime is also not coming forth and there appears to be
abdication of duty cast on the prosecution to show the weapon to the
Doctor, so as to confirm the injuries noted by him are possible by such
weapon of offence. There is nothing on record to show that any attempt
has been made in this regard either by the prosecution or by the Court,
therefore, it may not be wrong to say the genesis of the crime had been
suppressed and the prosecution story becomes highly doubtful in view of
this omission on the part of the prosecution.
53. Be it noted that the Doctor has observed during post-mortem,
lacerated wounds, contusions, abrasions, etc. however, one of the alleged
weapons of offence used in the crime was sickle, which is a sharp edged
weapon, but no incised or stabbed wound was found, which is also
indicative of the fact that genesis of the crime was suppressed by the
prosecution and the manner in which the alleged crime alleged to have
been committed does not conform to the dock evidence tendered by the
prosecution witnesses, particularly the expert witnesses.
54. PW-9 Dr. Din Mohd. deposed that at the time of autopsy the clothes
of the deceased were dried, however, in sharp contradiction, PW-2 Ravi
Kumar deposed that he douse the flames with 5/6 buckets of water,
therefore, it appears that scene of crime was either tinkered with or the
manner of commission of crime was completely suppressed, which casts
doubt on the veracity of the prosecution case.
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ARREST OF ACCUSED
55. The manner in which the custody of the accused has been taken by
the police is itself doubtful and further reflects on the veracity of the
prosecution case. As per the prosecution case, the accused was arrested on
29.10.12. In this regard, PW-13 Vikram Kumar (I/O) deposed that on
29.10.12, they made search of accused and in the afternoon on the
identification of PW-2 Ravi Kumar, accused was arrested at 3.15 from the
road at Jakhed Baggard.
56. To the contrary, PW-3 Poli Devi, sister of the deceased deposed that
when she heard about the occurrence, she reached there in the morning at
5 am and police had arrived at 9 am. The accused was in the room, who
was handcuffed by the police. The statement of the accused made under
Section 342 Cr.PC assumes importance, when accused was asked inter-
alia that at the time of occurrence, he was found wielding weapon of
offence and after setting the deceased on fire, fled from the spot. The
accused while denying the allegations stated inter-alia that police had
arrested him on 27th in the morning at 9 am.
57. PW-13 Vikram Kumar (I/O) was specifically confronted with the
statement of PW-3 Poli Devi and asked that it has come in her statement
that on the day of occurrence, the accused was arrested however, PW-13
Vikram Kumar (I/O) pleaded ignorance in this regard and replied that he
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did not investigate this aspect on the spot nor police of police post Dudu
handed over the accused to him.
58. If accused was arrested in the morning of 27.10.12, then question
arises why PW-13 Vikram Kumar shown his arrest in the afternoon of
29.10.12. Regarding arrest of accused, there is admission on the part of
the accused in statement made under Section 342 Cr.PC, which finds
support from the testimony of PW-3 Poli Devi. All these discrepancies
and contradictions are pointer to the fact that during the intervening
period, prosecution had got enough time to manipulate and fudge the case
and this view of ours is strengthened by the delay caused in sending
special report to the Ilaqa Magistrate.
DELAY IN SENDING SPECIAL REPORT
59. As per the prosecution story, the initial report EXT-P1 was lodged
in Police Post Dudu, on 27.10.12 at 6.10 am and when same was
transmitted to the police station, Basantgarh, a formal case being FIR No.
30/2012 under Section 302 RPC and 4/25 Arms Act was registered
against the accused on 27.10.12 at 9.10 am and investigation commenced.
However, the special report was received by the Magistrate on 29.10.12 at
11.15 am. The learned PP while justifying two days’ delay in sending the
special report submitted that 27.10.12, was Saturday and 28.10.12 was
Sunday and this report was submitted on 29.10.12 i.e. on Monday, as it
has also been noted in the impugned judgment by the trial Court.
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60. PW-13 Vikram Kumar (I/O) was specifically confronted on this
point, who deposed that the case was registered on, 27.10.12 at 9.10 am,
however, neither with authenticity he can say when special report was
dispatched from the Police Station, Basantgarh nor he had inquired from
the SHO concerned in this regard. Therefore, the justification during
arguments given by learned PP that because of holidays, the special report
could not be dispatched promptly is liable to be rejected, particularly,
when the prosecution case is full of improvements, contradictions,
discrepancies etc.
61. It is not a case where the prosecution case is free from notable
improvements or discrepancies, but on every point, there are loopholes
which put dent in the prosecution case, therefore, in this regard, sending
of special report belatedly to the Illaqa Magistrate assumes importance.
62. In this regard, Hon’ble Supreme Court has categorically held that
not sending the report due to public holidays is irrelevant and the police is
duty bound to send it immediately without any fail, therefore, justification
given that it could not be sent because of public holiday lies in the teeth of
the law laid down by the Hon’ble Supreme Court in case, State of
Rajasthan Vs. Teja Singh and Ors; AIR 2001 SC 990, wherein para 4
held thus:-
“4. We have examined the evidence of the three eye-
witnesses as also that of Iqbal Singh (PW-10) the
Investigating Officer. We have also perused the evidence
of Ram Pratap, Sarpanch (DW-1) and we do not find any
reason to differ with the finding of the High Court while
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right to re-appreciate the evidence. In our opinion, the
High Court, in that process, has not committed any
error. As a matter of fact, the explanation put forth by
the learned counsel in regard to the delay in the FIR
reaching the Court is not tenable because assuming that
there were some Court holidays that cannot be a ground
for the delay in the FIR reaching the Magistrate, because
requirement of law is that the FIR should reach the
concerned Magistrate without any undue delay. We are
of the opinion that the explanation given by the
prosecution regarding the delay in the FIR reaching the
Magistrate is neither convincing nor acceptable.”
EXAMINATION OF ACCUSED AND HIS EXPLANATION UNDER SECTION 342 CR.PC.
63. The accused specifically stated in his statement under Section 342
Cr.PC that he was arrested on, 27.10.12, which is further strengthened by
the testimony of PW-3 Poli Devi, the sister of the deceased. At the same
time, accused also stated in his statement under Section 342 Cr.PC that his
fingerprints were taken by PW-7 Arif Choudhary at 4-5 places in the
police post Dudu. Fingerprint expert-PW 12 Hakeem Abdul Rashid
deposed that lifted fingerprints were clear without any distortion,
however, it is not possible to get clear finger impressions from the seized
weapon of offence (Dharat) as same is having rough surface. Furthermore,
there is also contradiction between the testimony of PW-7 Arif Choudhary
and PW-4 Ramesh Chander as to which of the weapons of offence
recovered was containing blood stains. However, the trial Court did not
take into consideration, the statement of the accused made under Section
342 Cr.PC which was a valuable piece of defence and thus assumes
importance in view of attending circumstances inasmuch as it is a
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this regard, Hon’ble Supreme Court in case, Reena Hazarika Vs. State
of Assam; AIR 2018 SC 5361 held as follows:-
16. Section 313, Cr.P.C. cannot be seen simply as a part
of audi alteram partem. It confers a valuable right upon
an accused to establish his innocence and can well be
considered beyond a statutory right as a constitutional
right to a fair trial under Article 21 of the Constitution,
even if it is not to be considered as a piece of substantive
evidence, not being on oath under Section 313(2), Cr.P.C.
The importance of this right has been considered time
and again by this court, but it yet remains to be applied
in practice as we shall see presently in the discussion to
follow. If the accused takes a defence after the
prosecution evidence is closed, under Section 313 (1) (b)
Cr.P.C. the Court is duty bound under Section 313 (4)
Cr.P.C. to consider the same. The mere use of the word
„may‟ cannot be held to confer a discretionary power on
the court to consider or not to consider such defence,
sinceit constitutes a valuable right of an accused for
access to justice, and the likelihood of the prejudice that
may be caused thereby. Whether the defence is
acceptable or not and whether it is compatible or
incompatible with the evidence available is an entirely
different matter. If there has been no consideration at all
of the defence taken under Section 313 Cr.P.C., in the
given facts of a case, the conviction may well stand
vitiated. To our mind, a solemn duty is cast on the court
in dispensation of justice to adequately consider the
defence of the accused taken under Section 313 Cr.P.C.
and to either accept or reject the same for reasons
specified in writing.
17. Unfortunately neither Trial Court not the
High Court considered it necessary to take notice of,
much less discuss or observe with regard to the aforesaid
defence by the appellant under Section 313 Cr.P.C. to
either accept or reject it. The defence taken cannot be
said to be irrelevant, illogical or fancifulin the entirety of
the facts and the nature of other evidence available as
discussed hereinbefore. The complete non consideration
thereof has clearly caused prejudice to the appellant.
Unlike the prosecution, the accused is not required to
establish the defence beyond all reasonable doubt. The
accused has only to raise doubts on a preponderance of
probability as observed in Hate Singh Bhagat Singh vs.
State of Madhya Bharat, AIR 1953 SC 468 observing as
follows:
“26. We have examined the evidence at length in
this case, not because it is our desire to depart from our
usual practice of declining to the assess, the evidence in
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departure from the rule that when an accused person but
for the word a reasonable defence which is likely to be
true,….. then the burden on the other side becomes all the
heavier because a reasonable and probable story likely to
be true friend pitted against AV and vacillating case is
bound to raise a reasonable doubts of which the accused
must get the benefit….”
A similar view is expressed in M. Abbas vs. State of
Kerala, (2001) 10 SCC 103 as follows:
“10. … On the other hand, the explanation given by the
appellant both during the cross examination of
prosecution witnesses and in his own statement recorded
under Section 313 CrPC is quite plausible. Where an
accused sets up a defence or offers an explanation, it is
well settled that he is not required to prove his defence
beyond a reasonable doubt but only by preponderance of
probabilities….”
Now, let us take a survey of case law on the points under
consideration.
64. Since there are variations and improvements in the initial report
EXT-P1 and its maker; PW-1 Des Raj; there is also delay in sending the
special report, the Doctor was not shown the weapon of offence, so as to
give his opinion as to whether nature of injuries are possible with the
alleged weapon of offence; postmortem report was prepared after 22 days
without any note prepared during postmortem and the prosecution has
given up eye witness, PW-Rajinder Kumar, who as per PW-1 Des Raj
arrived along with PW-2 Ravi Kumar at the place of occurrence
immediately on being informed by him. Another prosecution witness,
PW- Parsu was also given up, so much so, PW-Mansa Ram (Chowkidar)
who was witness to confession, recovery and finger print was also given
up by the prosecution without any plausible justification.
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65. While dealing these aspects as we have noted, Hon’ble Supreme
Court in Ishwar Singh and ors. Vs. State of U.P 1976 CriLJ1883, in
para 9 held:-
“9. We have pointed out that the trial Court in
convicting the appellants overlooked certain
significant features of the case, namely, the
inordinate and unexplained delay in despatching the
first information report to the Magistrate; the
difference in the account given by the prosecution
witnesses and as appearing from the first
information report of the occurrence; the absence of
any statement in the first information report as to
the injuries received by some of accused, and the
non-examination of material witnesses. The High
Court in affirming the Judgment of the trial Court
also failed to advert to these circumstances. We do
not therefore think that the case against the
appellants has been proved beyond reasonable
doubt. The appeals are accordingly allowed and the
Order of conviction and the sentences passed on the
appellants are set aside We direct that the appellants
be set at liberty forthwith.”
66. When the recovery does not conspire confidence as to the manner
and with regard to its nexus to the alleged offence, the Court is required to
give benefit of doubt to the accused as discussed at length that the
recovery of weapon of offence is marred with contradictions and is
doubtful, therefore, in this regard, the law laid down by the Hon’ble
Supreme Court in Bijender alias Mandar Vs. State of Haryana; AIR
2022 Supreme Court 466. Para No. 17 is noteworthy, which reads as
under:-
“17. Incontrovertibly, where the prosecution fails to
inspire confidence in the manner and/or contents of
the recovery with regard to its nexus to the alleged
offence, the Court ought to stretch the benefit of
doubt to the accused. Its nearly three centuries old
cardinal principle of criminal jurisprudence that “it
is better that ten guilty persons escape, than that one
innocent suffer”. The doctrine of extending benefit
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a strong suspicion, holds its fort on the premise that
“the acquittal of a guilty person constitutes a
miscarriage of justice just as much as the conviction
of the innocent”.
67. On the point of requirement that the attention of Doctor has to be
drawn to the weapon of offence so as to confirm the nature of injuries,
Hon’ble Supreme Court in Amar Singh Vs. State (NCT of Delhi);
(2020) 19 SCC 165 in para Nos. 30 & 31, held as under:-
30. While emphasizing the importance of eliciting
the opinion of medical witness in such circumstances
this Court in the case of Kartarey and Ors. V/s State
of U.P. has observed as under SCC p. 177, para 26
“We take this opportunity of emphasizing the
importance of eliciting the opinion of the medical
witness, who had examined the injuries of the
victim, more specifically on this point, for the proper
administration of justice particularly in a case
where injuries found are forensically of the same
species, example stab wound, and the problem
before of the Court is whether all or any those
injuries could be caused with one or more than one
weapon. It is the duty of the prosecution, and no less
of the Court, to see that the alleged weapon of the
offence, if available, is shown to the medical witness
and his opinion invited as to whether all or any of
the injuries on the victim could be caused with that
weapon. Failure to do so may sometimes, cause
aberration of the course of justice”.”
31. The same has been again asserted by this Court in
Ishwar Singh V/s State of U.P. by observing as
under:-
“26….It is the duty of the prosecution, and no less of
the Court, to see that the alleged weapons of the
offence, if available, is shown to the medical witness
and is opinion invited as to whether all or any of the
injuries on the victim could be caused with that
weapon. Failure to do so sometimes, cause aberration
of the course of justice.”* On the basis of the evidence
on record it is difficult to say whether the injury to
the deceased was caused by the knife with a broken
tip which was ceased. These variations relate to vital
parts of the prosecution case, and cannot be dismissed
as minor discrepancies. In such a case, the evidence of
the eye witness “cannot be accepted at its face value”,
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U.P.
68. We have delved on the point, as to whether it is possible to inflict
multiple external and internal injuries of different dimensions by the
accused alone and no resistance is offered or struggle made by the
deceased or for that matter by the PW-1 Des Raj. Furthermore, this point
assumes importance in the wake of the testimony of PW-1 Des Raj that
the accused alleged to have assaulted the deceased for 2-3 hours
simultaneously with two weapons of offence and during this period also,
accused had pinned him down with foot and deceased was set on fire by
the burning lamp. Be it noted that the prosecution failed to show the
Doctor that weapons of offence, so as to confirm the nature of injuries and
so also during the trial, the trial Court overlooked this aspect of the matter.
Hon’ble Supreme Court while dealing with somewhat similar facts and
circumstances in Amar Singh Vs. State (NCT of Delhi); (2020) 19 SCC
165 in para 27 held as under:-
“27. Thus, there are total 15 injuries inflicted by three
assailants, two having hockey sticks and one knife as per
prosecution story. Parminder Singh PW-1 emphatically
stated that whole incident barely lasted five minutes. It
would be practically impossible to inflict 15 injuries of
the type by three assailants simultaneously attacking the
deceased within a short span of 5 minutes particularly
when the victim being a normal healthy person naturally
must have offered resistance. Inflicting 15 injuries on the
body of the deceased by three accused persons would
require a considerable amount of time. This itself suggest
that three accused had sufficient time at their disposal to
conduct the crime and the entire incident could not have
taken place within five minutes as stated by eye witness
Parminder Singh PW-1. This fact coupled with the fact
that two brothers of the deceased remained a mute
spectator when the third brother was being assaulted is
CRA No. 9/2017
c/w
CONF No. 2/2016 392025:JKLHC-JMU:1524-DBclear indication of the fact that PW-1 Parminder Singh
was not present on the spot and not an eye witness of the
incident.”
Similarly, in the case on hand, for 2-3 hours, during the commission
of crime, PW-1 Des Raj against all probabilities remained mute spectator
which casts doubt on the presence of PW-1 on the spot.
69. Once, the Court has come to a finding that prosecution has
suppressed the genesis and origin of the occurrence, and also failed to
explain the injuries on the person of the accused, in that event, accused is
entitled to the benefit of doubt. Hon’ble Supreme Court in case Bhagwan
Sahai and anr. Vs. State of Rajasthan; 2016 CriLJ 3154, while dealing
on the point that once, it is shown that the prosecution has suppressed the
genesis and origin of occurrence, the benefit of doubt has to be given to
the accused what is held in Para No. 8 is noteworthy:-
“8. The aforesaid view of the High Court is devoid of legal
merits. Once the Court came to a finding that the
prosecution has suppressed the genesis and origin of the
occurrence and also failed to explain the injuries on the
person of the accused including death of father of the
appellants, the only possible and probable course left open
was to grant benefit of doubt to the appellants. The
appellants can legitimately claim right to use force once
they saw their parents being assaulted and when actually
it has been shown that due to such assault and injury their
father subsequently died. In the given facts, 1976 (4) SCC
394 Page 5 Crl.A. No.416 of 2016 @ SLP(Crl.)2301/2016
adverse inference must be drawn against the prosecution
for not offering any explanation much less a plausible one.
Drawing of such adverse inference is given a go-bye in the
case of free fight mainly because the occurrence in that
case may take place at different spots and in such a
manner that a witness may not reasonably be expected to
see and therefore explain the injuries sustained by the
defence party. This is not the factual situation in the
present case.”
CRA No. 9/2017
c/w
CONF No. 2/2016 402025:JKLHC-JMU:1524-DB
CONCLUSION
70. While summing up, we arrived to the conclusion that the
prosecution case suffers from the following notable shortcomings:-
a) There is variation in the initial report EXT-P1 and its maker PW-
1 Des Raj.
b) There are contradictions regarding type of weapons of offence
used; the manner in which the deceased was assaulted and the
nature of injuries caused by such weapons.
c) The recovery of alleged weapon of offence is marred by the
discrepancies and contradictions.
d) There is unexplained delay in dispatching the special report to
the Illaqa Magistrate.
e) The post-mortem was conducted in the private house, the
Doctor, PW-9 and the Investigating Officer, PW-13 have put
forth contradictory reasons for the same.
f) The Doctor was not shown the weapon of offence so as to
confirm the possibility of nature of injuries sustained by the
deceased, with such weapons.
g) Doctor issued the post-mortem report after 22 days and failed to
show as on what basis, he prepared the report after such a long
gap between the actual conducting of the post-mortem and
CRA No. 9/2017
c/w
CONF No. 2/2016 412025:JKLHC-JMU:1524-DB
issuance of the report, particularly how he memorized the
alleged multiple wounds of different dimensions.
h) There is a contradiction as to the day and time of arrest of the
accused.
i) There are also contradictions as to the day and time of visiting of
police officers and expert witnesses to the place of occurrence,
which casts a doubt on the veracity of investigation.
j) The prosecution has also withheld the important witnesses PW-
Rajinder Kumar (eye witness) PW-Mansa Ram (Chowkidar),
and PW- Parsu without any plausible reason.
k) Prosecution has attributed specific motive for the crime, but
failed to prove it.
71. Though we are not relying on this point, but same is boggling our
mind, therefore, just placing it on record, in that, we are pained to note
that during entire gamut of the discussion, the trial Court somewhere
missed to take note as to what happened to the little baby who said to have
sustained burn injuries on the back, but neither provided medical
treatment nor a slight attempt is made that if accused was the author of the
crime and was present on the spot why he did not make effort to evacuate
his 2 ½ years old son from the raging flames, till the PW-2 Ravi Kumar
arrived and evacuated the toddler to his room. In this regard, we are
reminded of the great philosopher Aristotle, whose philosophy
emphasizes natural human relationship and virtues. In his work
Nicomachean Ethics, Aristotle discusses the deep love parents have for
their children, which aligns with the idea that a father would risk his life
to save his child:
CRA No. 9/2017
c/w
CONF No. 2/2016 422025:JKLHC-JMU:1524-DB“Parents love their children as themselves, for their issue or like
another self, coming from them.” (Nicomachean Ethics, Book
VIII, 1155 a).
This quote underscores the intrinsic, self sacrificial bond that makes
it nearly unimaginable for a father not to act to evacuate his 2 ½ years old
from a fire as an extension of his own being. The trial Courts’ failure to
address this aspect in its judgment overlooks the natural and powerful
paternal instinct.
72. In the wake of above discussed contradictions, improbabilities,
discrepancies, improvements, conflicting opinion of the experts, etc, the
justification of the trial Court that the testimony of PW-1 Des Raj is of
sterling nature do not inspire confidence, as it loses sheen and withers
away and is overshadowed by doubt and consequently, also renders the
prosecution case unworthy of reliance.
73. Once, we arrived to the conclusion that the prosecution story is not
free from reasonable doubt, in that event, as per the settled proposition of
law the benefit of doubt belonged to the accused, which should have been
granted by the trial Court. In this regard, the observation of the Hon’ble
Supreme Court in, Narendra Singh and anr. Vs. State of M.P; AIR
2004 Supreme Court 3249 in para Nos. 30 and 33 assumes
importance:-
“30. It is now well-settled that benefit of doubt
belonged to the accused. It is further trite that
suspicion, however, grave may be cannot take place
of a proof. It is equally well-settled that there is a
long distance between ‘may be’ and ‘must be’.
33. We, thus, having regard to the post mortem
report, are of the opinion that the cause of death of
Bimlabai although is shrouded in mystery but benefit
CRA No. 9/2017
c/w
CONF No. 2/2016 432025:JKLHC-JMU:1524-DBthereof must go to the appellants as in the event of
there being two possible views, the one supporting the
accused should be upheld.”
74. For the foregoing reasons, we are unable to concur with the
findings of the trial Court, particularly when on every point under
consideration we have noted deficiencies and flaws, which are staring at
the heavy burden cast on the prosecution to prove the guilt beyond all
shadow of doubt so as to rebut the presumption of innocence, which is a
cornerstone of criminal jurisprudence, therefore, accused cannot be sent
behind the bars by curtailing his liberty on the basis of such fragile
prosecution evidence.
75. In view of the aforesaid, while giving benefit of doubt, we allow
this appeal and set aside the judgment of the trial Court. The appellant is
acquitted of the charge. He shall be set at liberty forthwith, if not required
in any other case.
76. For the reasons, reference for confirmation of the sentence is
declined and the CONF No. 2/2016 is rejected.
77. The record of the trial Court be sent down forthwith.
(Shahzad Azeem) (Sindhu Sharma)
Judge Judge
JAMMU
01.07.2025
Tarun/PS
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No