Ranjan Kumar vs State of J & K

Sharma, J.—The appellant Ranjan Kumar (A1) was tried along with coaccused namely, Parshotam Singh (A3), Natha Ram (A4), Ashok Kumar (A5) and Dharam Pal (A6) for the commission of offences falling under Sections 302/324/364/452/342/148/149, R.P.C. In the police Challan Jagdish Raj Sharma s/o Bhagat Ram r/o Raipur Satwari was also arrayed as an accused to have committed offences falling under Sections 27 and 3/25 of the Arms Act, but he was discharged by the trial Judge. A1, A3 and A5 were found to have formed an unlawful assembly with a common object of committing offences. A5 died before the proceedings could be concluded. A1 and A3 were convicted under Section 364 read with Section 149, R.P.C. and sentenced to undergo rigorous imprisonment for seven years. They were also convicted for having infracted Section 148 read with Section 149, R.P.C. and sentenced to undergo rigorous imprisonment for there years. Besides this, A1 was convicted under Section 302, R.P.C. and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 500/. In default of payment of fine, he had to undergo simple imprisonment for one month. He was also convicted under Sections 3/25 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. A3 was convicted under Section 324, R.P.C. and sentenced to undergo rigorous imprisonment for three years. All the said convictions and sentences had to run concurrently. A4 and A6 were acquitted of the charges. A3 has not filed any appeal against his conviction and sentence.

The genesis of the incident as set out in the final report of the Police is that on January 10, 1986, A1, A3 and A5 had hired Taxi No. JKT 6461 from the Railway Station, Taxi Stand, Jammu, for return journey upto Kathua Town. On their way, when they reached Gandhi Nagar locality of Jammu City, two youths were found standing by the road said and they were given the lift. Thereafter, the Taxi was taken in different localities of Jammu City and finally was stationed nearby the Petrol Pump of "Choudhari Aishi Ram Batra". There four occupants from that Taxi got down. At their bidding, the fifth occupant (A5) did not allow the Taxi driver (Padam Dev Singh P.W.) to come down from the Taxi. He was shown a sharpedged weapon and made to sit at the steering of the vehicle. A1 had swathed himself with a Shawl and was clandestinely carrying a single barrel gun. A3 was similarly dressed and carrying a 'Toka'. It was at about 9 p.m., when A1 and A3 entered the wine shop where Bhupinder Singh (deceased), in the company of his brother Yash Pal Singh (complainant) was counting the cash proceeds of the sale of the day. Adjacent to this shop, there is "general Provision store" which is owned by them. A1 and A3 demanded two bottles of Dry Gin from Bhupinder Singh who after wrapping them demanded their price. At this, A1 aimed the gun at Bhupinder Singh and made a fire which hit him in the stomach. After this, both the accused started running. A3 was the first and followed by A1.

Yash Pal Singh (PW) succeeded in catching hold of fleeing A1. When they were grappling in front of the wine shop, Harbans Lal (PW) came pushing a 'Rehri' from the opposite direction which collided with them. A1 did not succeed in freeing himself from the clutches of the complainant.

He entreated A3 to rescue him. A3 responded and embarked upon attacking Yash Pal Singh (PW) with a ' Toka'. In this skirmish Yash Pal Singh

(PW) received three injuries and A1 succeeded in freeing himself. He thus made good his escape along with A3 but had left behind his gun and

shawl. A5 had not allowed the Taxi driver namely, Padam Dev Singh to stir out from the said vehicle. A1 and A3 along with their other two companions boarded the stationary taxi which sped away leaving the complainant high and dry. Yash Pal Singh (PW) took his injured brother Bhupinder Singh in a Autorickshaw to the S.M.G.S. Hospital, Jammu, where he remained under treatment up to 1411986 and thereafter shifted to PGI Chandigarh. On 1711986, he succumbed to his injuries. It is also in the evidence that fifteen minutes earlier to his incident, a minor scuffle had taken place between Yash Pal Singh (PW) and Amarjeet Singh alias Tonny who had visited the wine shop at about 8.45 p.m. and in the presence of Hardayal Singh, resident of Mohallah Mast Garh, Jammu, and Gurcharan Singh resident of Mohallah 'City Chowk ' Jammu, demanded half a bottle of wine on credit and on refusal thrown an egg on the face of the said complainant Yash Pal Singh. The latter had tried to catchhold of the former from the neck but could get at his muffler which was snatched. While fleeing, the said Tonny had hurled a threat on the life of the complainant. That after the gap of about fifteen minutes he (Tonny) reappeared on the spot in the company of A1 and A3 who picked up a quarrel in which Bhupinder Singh lost his life.

On receiving the information of this incident, the Police immediately reached the S.M.G.S. Hospital, Jammu, where the statement of the complainant Yash Pal Singh (PW) was recorded by the S.H.O. and the weapon of offence (gun) as well as Shawl and Muffler were handedover to him. The S.H.O. forwarded the statement along with his endorsement to the Police Station Pacca Danga, where at 10.15 p.m. case under F.I.R. No. 13/86 for the commission of offence falling under Secs. 307/34, R.P.C. was registered. After the completion of the investigation, final report was submitted in the Court. The accused were charged and accordingly convicted as stated above.

A1, through the medium of this appeal has challenged his convictions and sentences on the grounds that the trial Court has misappreciated the evidence and arrived at wrong conclusions. That there is no evidence of cogent and convincing nature which had established that A1 had participated in the Commission of the alleged crimes but the trial Court has based its findings on surmises and conjunctures. That the alleged eyewitnesses namely, Gurcharan Singh and Dayal Singh are planted witnesses, and wrongly their statements have been relied upon. That yawning infirmities in the prosecution evidence had made it decrepit and unworthy of any use. No reliance could be placed on the testimony of Padam Dev Singh (PW) who himself was an accomplice.

We have heard the counsel appearing for the parties as well as assiduously perused the record.

The defence counsel has contended that there in not even an iota of evidence which establishes that A1 had shot the gun fire at the deceased.

Yash Pal Singh (PW) is the prime mover of the gear because at his instance the case was registered under F.I.R. 13/86 in the Police Station Pacca Danga, Jammu. His assertions recorded in the F.I.R. and their subsequent reaffirmations made in the statement on oath require a close scrutiny. In the F.I.R., the features of the assailant who caused the gun fire have been described as "heavy built, medium statured, wearing round necked full sleeves woollen sweater of chocolate colour and pants." The descriptive features of the other assailant who caused injuries to the complainant runs comparatively taller than the other, was bearing short moustaches and had swathed himself with a shawl and carrying a ' Toka ' in his hands.

About the occurrence, it is alleged (in the F.I.R.) that the person who was wearing sweater caused gun fire on Bhupinder Singh which hit him in the stomach. The complainant caught hold of the assailant along with the gun. The assailant yelled hoping for help from the ""Shawl Wala companion who complainant with "Toka" and caused the injuries on the chest and the leg. The complainant had made an unsuccessful attempt for snatching 'Toka' from him but in the struggle the latter had received some scratches.

In the statement on oath Complainant Yash Pal Singh gave a totally different version regarding the identity of the assailants. There he has stated that both the accused had swathed shawls. The accused who was taller had concealed a gun below his shawl.(This reference is for A1). He is categorical in stating that A1 had caused the injury with the gun and that sharp edged weapon 'Toka' was being carried by A3 and he had inflicted injuries with the 'Toka' to the complainant when at the call of A1 he was freeing him from the hold of the complainant. He has shown the possibility of A1 receiving some injuries from the 'Toka' because he (complainant) had been using him (A1) as a sheath for the blows of 'Toka' which were being given by A3. The medical evidence has also lent corroboration to the fact that A1 had some injuries including one caused by a sharpedged weapon on his body. It is thus found that the version of the incident contained in the F.I.R. and the account given in the statement on oath are diagonally opposed to each other.

Mr. Goni, the learned counsel appearing for defence has strenuously contended that the trial Judge has thoughtlessly glossed over these serious contradictions and in a casual and perfunctory manner held that these infirmities had, paled into insignificance in presence of the eyewitnesses account which has colour of consistency and a ring of truth.

The learned trial Judge has dealt with this aspect of the case in the following manner :

Whether the witness had been wrong while giving the features mistaking A1 for A3 or the scribe made a mistake while scribing it, there is contradiction between the F.I.R. and the version the witness gave in the Court in this behalf. But the question arises whether the contradiction goes to the root of the case so as to discredit the witness completely. This, however, is a matter of appreciation of evidence. The witness also deposed that he identified A1 in the test identification parade held in Police Station, Pacca Danga, Jammu, in presence of PW Narayan Singh. Whether test identification was properly held according to the rules is different but this fact is not denied as the only defence is that he had seen A1 prior to it. So according to him A1 and A3 were assailants who came to his wine shop at 9 p.m. on 1011986 and demanded Dry Gin. A1 at that time, he had shot the deceased while A3 was armed with 'Toka' with which he assailed the witness. He had snatched the gun from A1 and latter handed it to the Police along with the shawl the shawl which was left behind. The evidence of this witness is only with regard to the charge of murder and assault. He does not know from where the accused came and where did they go after committing the crime. But he is not the only witness of the occurrence as PWs Gurcharan Singh and Dayal Singh have been named in the F.I.R. So much will depend upon the appreciation of their evidence.

Since he did not know the assailants, he only described their features. But in case the accused were known to the witnesses in whose presence the occurrence took place, failure to record their names in the F.I.R. after consultation with them will not make his evidence less trustworthy, because in that case it would be attacked on the ground that it was drafted giving a shape to the case to be put up against the accused after due deliberation. Since entire criticism against the evidence of Yash Pal Singh having been directed only about the contradiction in the F.I.R. and his statement in the Court regarding whether A1 or A3 was armed with the gun, what will be its effect on the prosecution case, will be considered only after the evidence of PWs Gurcharan Singh and Dayal Singh who have been named in the F.I.R. is analysed.

Before any opinion is expressed upon this significant feature of the case, it will be advantageous to state here the legal position as to how far the contents of an F.I.R. are relevant in evidence of a case. The apex Court had an occasion to deal with such a contingency while dealing with the case of Malkiat Singh v. State of Punjab, (1991) 4 SCC 341, wherein it was held that :

F.I.R. is not substantive evidence. It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an afterthought.

The prosecution at this stage has acrimoniously urged that enigmatic facts of the case do not warrant any scrutiny because such contradictions do not go to the root of the case and they are generally found in the trial of each and every case. In support of their contention, they have cited the case of Krishna Pillai v. State of Kerala, (AIR 1981 SC 1237 : (1981 Cri LJ 743), wherein the principle laid down is as under. :

The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspect thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal case.

Adverting to the facts of the present case, it has to be seen whether the contradictions found in the F.I.R. and in the testimony of its maker namely, Yash Pal Singh (PW) are of penumbral nature or they got to the root of the case. Such scrutiny acquires atmost importance because any element having the tendencious effect of implicating an innocent person with the alleged crime as a result of an afterthought has to be warded off.

The version of the F.I.R. is earlier and it records that the gun was being carried by that accused who was heavily built in the frame of his body and was of medium stature. That the 'Toka' was being carried by that accused who was taller to him. It is further alleged that the gun fire was made by the former and the injuries were cased with the 'Toka' by the latter. The latter had also received some scratches in this scuffle.

In his statement on oath, the witness has given a diametrically opposed version as according to him the gun fire was made by that accused who was taller (A1) and that the other accused namely A3 was carrying 'Toka' with which he had caused him the injuries. By no stretch of imagination such a contradiction can be said to be of consistent nature. Rather, it is incongruous and goes to the root of the controversy so far as the death of Bhupinder Singh is concerned. Be that as it may, the learned trial Judges has tried to coverup this lacuna by adopting an argument that the witness had identified the assailant in the identification parade. The defence has argued that identification parade was not held in accordance with law. The facts of the case bearup the contention of the defence because at the time of holding the parade, A1 was already in the Police Lock up and Yash Singh (PW) had already seen him. Narayan Singh (PW) being the Magistrate, had held the identification parade and has admitted that A1 was broughtout from the lockup to a room which was at a distance of about 20/25 feet. That he was brought through an open varanda. The identification parade was held in that room. Here, also the possibility cannot be ruled out that Yash Pal Singh (PW) had an occasion of seeing A1 prior to the holding of identification parade. In the case of Chaman Appellant v. State of U.P., (AIR 1992 SC 601: (1992 Cri LJ 524) the apex Court did not rely upon such an identification parade where the moles, scars on the face of the accused were covered to a large extent with paper and similar paper covering was done on the parade. It was held so because the possibility of witnesses seeing the accused before the parade was not eliminated.

The learned trial Judge has taken into account, the testimony of the testimony of the alleged eyewitnesses namely, Gurcharan Singh (PW) and Dayal Singh (PW) for not rejecting the evidence of Yash Pal Singh (PW). Their testimony is the fulcrum on which hinges the fate of this case. The appraisal of their evidence has to be done with care and caution because a variation in regard to their particulars has crept in at the initial stage of the case. Admittedly, Gurcharan Singh (PW) is a close relation of the deceased (first cousins). He resides in Mohallah "Shahidi Chowk" of Jammu City, whereas, in the F.I.R. he is shown to be a resident of Mohallah "Purani Mandi" Jammu. The name of Dayal Singh (PW) has been show as Hardayal Singh"" in the F.I.R. The defence has contended that none of them is an eyewitness of the alleged occurrence. That Dayal Singh (PW) is a man of easy virtues as his past conduct is loaded with a credit of many criminal activities and Gurcharan Singh (PW) being a close relation of the deceased is an interested witness.

Mr. Goni, (the defence counsel) has contended that as per version of Yash Pal Singh (PW), both these witnesses were present when Amarjeet Singh alias Tonny had visited his shop and after creating a melee and hurling a threat had reappeared on the spot. At that time, he was accompanied by A1 and A3. A1 on a slight pretext i.e. demand for the price of two sold bottles of Gin without any further provocation took the extreme step of ending the life of Bhupinder Singh. After the gun fire again a scuffle took place between A1, A3 and Yash Pal Singh (PW). That being a close relation of the deceased, Gurucharan Singh (PW) who too was a young man would not have kept quiet on all these occasions. The argument of the learned counsel carries conviction and has to be appreciated in a pragmatic and not abstract manner. Gurcharan Singh (PW) has stated that when he reached S.M.G.S. Hospital at 9.15 p.m., the Police was already there. That at about 10 p.m., the S.H.O. had spotted him and enquired about the incident. That he knew the accused by names and had disclosed this fact to the S.H.O. who did not record his statement at that time but the same was scribed at about 12 or one o' clock of the night. The record reveals that the case was registered in the Police Station Pacca Danga, at 10.15 p.m. In case this version of the witness is correct, S.H.O. would have reflected it in the F.I.R. as it favoured the investigation of the case. The alleged winking at such an important link in the investigation on the part of the concerned S.H.O. is such an anomaly which cannot be accepted without a demur. Moreover, Mr. Bansi Lal Trisal (PW) S.H.O. has denied in his statement about the disclosure of such names to him by Gurcharan Singh (PW) at any time before his statement was recorded under Section 161, Cr. P.C. Had Gurcharan Singh (PW) been present on the spot, in the normal course of human conduct the could have made no bones about naming the accused with Yash Pal Singh (PW). Mr. Bansi Lal Trisal (PW) has stated that when he saw Gurcharan Singh (PW) in the S.M.G.S. Hospital, there were no blood stains on his clothes Mr. Gurcharan Singh (PW) has given an explanation that he could not accompany the injured to the Hospital, because he had to close the shutters of both the shop. However, it has been disclosed by him that in this job the servant of the deceased namely, Sarjoo Ram had assisted him. The presence of the servant on the spot makes his explanation unacceptable. As a close relation he would not have allowed any grass to grow under his feet for arranging the closure of the shops and not attending to his brother who was at his last gasp. Furthermore, in his statement on oath he has categorically stated that A1 had even been calling A3 by name (Parshotam Singh) to rescue him from the clutches of Yash Pal Singh (PW).

This being so, when Yash Pal Singh had the occasion of knowing A3 by name, he would not have missed the golden opportunity of inserting the same in the F.I.R. The reason assigned by the learned trial Judge that Yash Pal Singh (PW) had no time for interacting with Gurcharan Singh (PW) for knowing the name of any of the assailants is not plausible but whimsical and as such carried no weight. 18. The other alleged eyewitness is Dayal Singh (PW). His name as shown in the F.I.R. is Hardayal Singh. He has admitted in his deposition that he had faced criminal charges on various occasions and that once he was detained under the provisions of the JandK Public Safety Act. According to him, from the place of occurrence he directly came to his house, took his meals and after 10 p.m. went to the S.M.G.S. Hospital where he donated his blood which was transfused to the injured Bhupinder Singh. If this version is correct, then why S.H.O. failed to record his statement up to 1411986 is not understandable. On the night of 1011986, the statement of other eyewitness namely, Gurcharan Singh (PW) was recorded and normally it was also expected that when he (witness) was available in the hospital he should have also been examined. The explanation given by him that he was busy in effecting repairs to his house and could not go to the Police Station is not satisfactory. The cumulative effect of all these circumstances is that his evidence is unworthy of any credence.

After taking stock of all the facts and the circumstances, there remains nodoubt in holding that Yash Pal Singh (PW) had failed to identify the real assailant who fired gun shot on Bhupinder Singh which caused his death. That Gurcharan Singh (PW) was not present on spot when the alleged occurrence took place. Similarly, Dayal Singh (PW) was not an eyewitness and he has been planted as a got up witness.

The next question which arises for consideration and determination is whether the prosecution has succeeded in establishing the charge against the appellantaccused, that he was a member of unlawful assembly and in furtherance of the common object had abducted padam Dev Singh (PW).

The learned trial Judge has convicted the appellant accused for the offences falling under Sections 364, 148 and 149, R.P.C. In order to bring home these charges, reliance has been placed on the testimony of Padam Dev Singh (PW). The defence has challenged the findings on the ground that Padam Dev Singh (PW) was an accomplice and as such as untrustworthy witness. That even the investigating agency had no faith in him because from the very beginning (i.e. on 621986) his statement as a witness was got recorded under the provisions of Sec. 164, Cr. P.C. when his evidence is appraised, it is found that in a hamhanded manner he has narrated his sojourn with the accused in the City of Jammu. He has narrated only one incident when he was threatened by A5 not to come out from the vehicle and kept on waiting for the arrival of four accused who had gone on prowl. He has also stated that when they returned there was no gun with them. It means that he had the knowledge that some incident had taken place. He did not report this incident to anybody nor lodged any report regarding his alleged abduction. Nowhere in his statement he has even faintly adumbrated that he was abducted for being murdered or he was disposed of or put in danger of being murdered. Thus, the ingredient of Sec. 364, R.P.C. are not established to bring home the charge of kidnapping.

Regarding the offences falling under Secs. 148 and, 149 R.P.C., the learned trial Judge should have satisfied himself that before an accused becomes a member of an unlawful assembly, it must be shown either from his active participation or otherwise that he shared the common object of the unlawful assembly. It is not necessary that the accused must be guilty of an overt act. It is sufficient if it is shown that as a participant of the unlawful assembly he was sharing the common object of the same. In the instant case there is no evidence against the appellantaccused which holds him guilty.

In this view of the matter, the charges against the appellantaccused falling under Sections 364, 148 and 149, R.P.C. were not established.

Similarly, there was no evidence to connect him with the commission of offence falling under Sections 3/25 of the Arms Act.

On a conspectus being made of all the facts and the circumstances of the case. We, therefore, hold that the prosecution had failed to establish beyond any shadow of doubt that appellant (A1) had caused the murder of the deceased Bhupinder Singh. The evidence equally had fallen short of proving the abduction of Padam Dev Singh (PW) as well as establishing that he was a member of the unlawful assembly. In this view of the matter, the gruesome and fiendish murder of unfortunate Bhupinder Singh is remaining shrouded in the thick layers of mystery. The learned trial Judge had misdirected himself in appreciating the evidence and had arrived at wrong conclusions of the facts and law.

In the result, we accept this appeal. The judgement and order of the learned trial Judge dated 1811994 is setaside. The appellantaccused be set at liberty forthwith.

The reference made in this case by the learned trial Judge for confirmation of convictions and sentences accordingly stands rejected.