State of J&K vs Mohinder Singh

Mr. B.S. Walia, J. - State is in appeal against the order of acquittal dated 28.02.2015 passed by the Learned Sessions Judge Bhaderwah by

virtue of which the accused-respondent has been acquitted of the offence u/s 302, Ranbir Penal Code and Section 7/27,1.A. Act in FIR No.

64/2003, PS Gandoh. The State has also filed an application seeking leave to appeal besides application seeking condonation of delay of 143

days. However, as per Registry, delay is only of 99 days.

On noticing that the appeal had not been signed and also did not bear date, besides, defects pointed out had not been removed, the matter was

adjourned vide order dated October 28, 2015, to be listed after removal of defects. Despite the aforementioned order, defects were not removed

by the next date i.e. November 27, 2015 whereupon one weeks time was granted for removal of the defects and listing of the matter thereafter.

However, even by the next date, the defects were still not removed and when the matter came up for hearing on December, 22, 2015, Ld. State

Counsel prayed for the matter to be heard as the defects were not ones which impacted on the merits of the case as the appeal was signed by the

Station House Officer, Gandoh besides the objection of page marking not having been properly done as also of page No. 13 of the paper book

not being legible, were superficial. In the light of submissions made and finding that with effort material on page No. 13 was readable, we with the

assistance of learned Dy. A.G., have gone over the judgment passed by the learned Sessions Judge, Bhaderwah and are of the view that the

conclusions reached therein resulting in the acquittal of the respondent does not warrant any interference by this Court in view of the reasons

mentioned hereunder.

The matter pertains to the death of Naresh Kumar, SPO No. 3078, who while posted at STF Post Kota, Tehsil, Gandoh died in suspicious

circumstances while performing duty at the said post on the night of July 9, 2002 with his dead body being found lying in the post with a bullet

injury in the chest after sound of gunfire was heard during the night. On it not being established on the spot as to whether the deceased had died

from bullet injury from his own weapon or at the hands of somebody else, inquest proceedings u/s 174 Cr.P.C. were initiated by the SHO Police

Station Gandoh, enquiry was entrusted to one Des Raj, ASI, Investigating Officer, who on proceeding to the spot along with a medical team and

photographer took the body into custody and got post-mortem conducted on the same which revealed that the deceased had suffered a single

bullet injury on his chest as also exit wound on the back and that the deceased had died due to hemorrhagic shock on account of the same. The

investigating officer prepared site plan of the place of incident, seized bloodstained clothes of the deceased, SLR rifle, magazine containing 18 live

rounds, 3 spent cartridges besides a tape recorder and cassette belonging to the deceased lying at the place of incident. The seized arms and

ammunition were sealed in 3 different parcels and sent to the FSL Jammu after getting the same resealed from an Executive Magistrate and report

of the Ballistics Expert obtained where after the body of the deceased was handed over to his legal heirs for performing last rites, statement of

some witnesses were recorded by the investigating officer u/s 175 Cr.P.C. in order to ascertain the cause relating to the death of the deceased but

no clues were found.

On the directions of the Senior Superintendent of Police, Doda, the matter was entrusted to the Additional Superintendent of Police Bhaderwah,

who during the course of enquiry, recorded the statement of Savitri Devi grandmother of the deceased as also of some other witnesses and was of

the view that the death of the deceased was not a suicide but a well-planned murder. Accordingly, recommendation for registration of FIR against

the accused and ors was made in order to unearth their role in the crime.

Pursuant to registration of FIR, the matter was entrusted to Sub-Inspector Chanchal Singh who during the course of investigation recorded the

statement of witnesses u/s 161 of the Cr.P.C, but did not find involvement of the accused or any other person in the death of deceased,

consequently the case was closed as untraced and final report filed in the Court of the Ld. Munsiff, JMIC, Gandoh on December 28, 2004.

However, the Ld. Munsiff, JMIC, Gandoh summoned Savitri Devi, grandmother of the deceased, recorded her statement in Court on February

5, 2005 and vide order dated February 8, 2005, on the basis of the same as also report of the Additional Superintendent of Police Bhaderwah,

disagreed with the closure report and in the circumstances directed the Senior Superintendent of Police, Crime and Railways, Jammu to further

investigate the case. Pursuant to the aforesaid directions, investigation of the case was entrusted to Tahir Yousaf Khan, PSI, Crime Branch who

conducted investigation of the case afresh and examined witnesses conversant with the facts of the case u/s 161 Cr.P.C., and also seized

documentary record pertaining to the deceased as was produced before him by the complainant, Savitri Devi.

During the aforesaid investigation it came to light that the deceased and accused along with some other STF personnel were posted at STF Post

Kota, Gandoh and that the accused was engaged with one Veena Devi, daughter of Dayal Chand, relative of the deceased and that the accused

used to visit the house of said Dayal Chand which was also visited by the deceased who had developed illicit relations with Veena Devi which was

objected to by the accused leading to the beating up of the deceased by the accused 7/8 days prior to the incident and for which the accused was

nursing a grudge against the deceased and that on the fateful day the deceased was deployed for guard duty on the post which was to end at 1

o'clock at night, that accused and other STF personnel were also present in a room of the post. As per the investigation, at about 12:30 AM, the

accused went to the post where the deceased was performing duty and with a criminal intention took the service rifle of the deceased in his

possession from which he fired upon the deceased and shot him dead, thereafter in order to conceal his crime, the accused fired 2 rounds from the

said rifle so that other police personnel may treat the incident to be a case of militant attack. Blood marks were also found on a red chair lying in

the post which suggested that the accused after killing the deceased had tried to put the deceased in the said chair in a sitting posture. In the

aforementioned circumstances, the accused was taken into custody and final report u/s 173 Cr.P.C. filed against the accused on completion of the

investigation for the commission of offence u/s 302 RPC and 7/27 IA Act before the Ld. JMIC Gandoh on December 3, 2007 who committed the

case for trial to the Court of the Ld. Session Judge Bhaderwah on the same day. Formal charges for the commission of aforesaid offences were

framed against the accused on April 9, 2008 to which the accused pleaded not guilty and claimed trial. As such, prosecution was directed to lead

evidence, whereupon 21 prosecution witnesses were examined in support of prosecution case.

The Ld. Sessions Judge Bhaderwah on finding no incriminating material on record in the absence of prosecution witnesses having stated anything

against the accused, dispensed with the recording of the statement of the accused u/s 342 Cr.P.C. and treating the case to be one based on

absolutely no evidence against the accused, proceeded to dispose the challan in terms of Section 273 of the Cr.P.C. without calling upon the

accused to enter defence.

No doubt, the deceased died a homicidal death as evident from post-mortem certificate EXPW-ND which records death due to hemorrhagic

shock on account of bullet injury. However, there is no direct evidence on record regarding the crime in question against the accused and the entire

case rests on circumstantial evidence.

Admittedly, on the fateful day, the deceased was performing sentry duty at the police post in the bunker on the terrace of the house of

Mohammad Yousuf (PW -10) and around midnight gunfire sound was heard due to which the other police personnel deployed at the post sleeping

in the adjoining room went upstairs and found the body of the deceased lying in the bunker upside down with a bullet injury on his chest.

PW-6 i.e. Bansi Lal, SPO deposed that on the fateful day he heard sound of two gun shots at night while he was asleep and when he along

with Ranjit Singh SPO i.e. PW-17, and the accused went to the bunker where the body of the deceased was lying, on seeing the dead body of the

deceased, the accused started weeping saying that his friend had been killed by somebody. PW-6 was declared hostile by the prosecution but

nothing adverse was elicited against the accused from his cross-examination.

PW-16 i.e. Mohammad Farooq stated that he was sleeping in his house at the time of the alleged incident and he heard sound of 2 gun shots at

night where after accused along with some other policemen came to his room and told that the deceased had committed suicide by firing from his

own gun and on going to the spot, he saw the body of the deceased lying in the bunker with its face towards the ground. He further stated that the

post of STF was established in a room of his house and that the police and militants usually exchanged fire amongst themselves.

PW-17 i.e. Ranjit Singh, SPO was also present in the post on the fateful day and stated that upon hearing the sound of firing he went to the

bunker and saw the body of the deceased lying there with a bullet injury on the chest but he did not know as to how the deceased was killed but

accused was having good relations with deceased.

Bir Singh (PW-18), Naresh Kumar (PW-19) Ajay Kumar (PW-21) and Bishroop Singh (PW-23), all SPOs who were also present at the

post on the fateful day stated on similar lines as deposed by PW-6, PW-16 and PW-17 except PW-18 who deposed that relations between the

accused and deceased were not strained over a girl nor any clash took place between them prior to the occurrence. However he ruled out the

killing of the deceased by militants and stated that the same was the work of some insider whose identity was not known to him.

PW-19 also deposed that relations between the deceased and accused were good prior to the occurrence while PW-21 stated that deceased

died due to his personal enmity with someone but later on came to know that the deceased had committed suicide.

The other SPOs at the Post i.e. PW-6, PW-14, PW-15, PW-16, PW-17, PW-19, PW-21 besides Mohammad Yousuf i.e. PW-10 i.e.

landlord of the house where the STF post was established were the first to reach the bunker where the dead body of the deceased was lying

with,a bullet injury on his chest. However none of the aforesaid prosecution witnesses said anything with regard to the involvement of the accused

in any manner in the killing of the deceased. Savitri Devi i.e. PW 8 who was a crucial witness, for reasons best known to her, chose to give a clean

chit to the accused by Stating that she had no suspicion over anybody with regard to the killing of her grandson.

Deposition of Panna Lal PW-1, Bihari Lal PW-2, Zakir Hussain PW-3, Sher Mohammad PW-4, Kamal Kishor PW-5, both hostile, Hukam

Chand PW-7, Mohammad Sultan BW-9, Mohd. Ayub PW-11, Prem Nath PW-13 and Krishan Lal PW- 20, is nothing except hearsay in the

absence of actual knowledge about the cause of death of the deceased.

S.H. Bukhari, PW-12 i.e. Scientific Officer, Ballistics, FSL Jammu proved his report EXPW-SH in the file with regard to examination of the

rifle of the deceased as also spent cartridges but his report is of no help to the prosecution in the absence of any incriminating evidence against the

accused. As regards the testimony of Deepak Kumar Salathia PW-15 i.e. the then ASP Bhaderwah, it appears that in the enquiry conducted by

him on the directions of the then SSP Doda in the year 2002, he had recommended registration of FIR against accused as per his report Mark - A

on the file. However the report of PW-15 is not a relevant piece of evidence in the absence of any adverse material in the file against accused.

However, the Investigating Officer of the Crime Branch, namely Tahir Yousuf Khan was not produced in the witness box despite a number of

opportunities which would have been helpful to unravel the loose ends of the case. As per record, there is no evidence to the effect as to whether

the deceased died as a result of murder committed by someone or met with an accidental death or committed suicide. In the light of the position as

discussed above it is apparent that the prosecution has not been able to prove either the motive on the part of the accused to do away with the

deceased or for that matter any evidence to show the involvement of the accused in the commission of the incident leading to the death of the

deceased. The Ld. Sessions Court in the circumstances held that the prosecution had miserably failed to prove its case against the accused beyond

reasonable doubt, consequently prosecution case was rejected and accused acquitted.

In the instant case there is no eye witness to the incident. None of the prosecution witnesses said anything with regard to the involvement of the

accused in any manner in the killing of the deceased.

Savitri Devi-PW-8, i.e. grandmother of the deceased at whose instance the case was further investigated by the Crime Branch on the

directions of the Ld. Munsiff, JMIC, Bhalessa on her written plea that the case had not been properly investigated by the police because the

deceased had been murdered by somebody in a well planned manner, unfortunately while appearing in the witness box during the trial took a U-

turn by stating that she had no suspicion over anybody regarding the death of her grandson nor she had any knowledge about the identity of the

person(s) involved in the murder.

PW-6, i.e. Bansi Lal, SPO, PW-17 i.e. Ranjit Singh SPO, PW-16 i.e Mohammad Farooq, Bir Singh (PW-18), Naresh Kumar (PW-19)

Ajay Kumar (PW-21) and Bishroop Singh (PW-23), all SPOs who were also present at the post on the fateful day never stated anything to

implicate the accused. Although PW-6 was declared hostile by the prosecution but nothing adverse was elicited against the accused from his

cross-examination.

PW-16 i.e. Mohammad Farooq stated that the post of STF was established in a room of his house and that the police and militants usually

exchanged fire amongst themselves while PW-18 deposed that relations between the accused and deceased were not strained over a girl nor any

clash took place between them prior to the occurrence. Likewise, PW-19 also deposed that relations between the deceased and accused were

good prior to the occurrence while PW-21 stated that deceased died due to his personal enmity with someone but later on came to know that the

deceased had committed suicide.

Although PW-22 also stated that the accused and deceased were having good relations but he also stated that they used to visit the house of

Dayal Chand and that the deceased used to say that he was having an affair with the daughter of Dayal Chand with whom accused wanted to

marry, and later on he heard that accused had killed the deceased by firing upon him. The aforesaid statement of PW-22 about the killing of the

deceased by the accused without disclosing the identity of the person from whom he learnt of accused having killed deceased is hearsay, besides

runs contrary to his categorical statement of the accused and deceased haying good relations prior to death of the deceased. The person who told

PW-22 of accused having killed deceased was neither named nor examined despite said person being the right person to depose to prove the

killing. However, for reasons best known to PW-22, said person was not named. There was no other witness who stated that the accused had

killed the deceased.

Investigating Officer of the Crime Branch, namely Tahir Yousuf Khan who conducted investigation of the case afresh, examined witnesses u/s

161 Cr.P.C, conversant with the facts of the case, seized documentary record pertaining to the deceased as was produced before him by the

complainant, Savitri Devi, and who in the circumstances took the accused into custody and filed final report u/s 173 Cr.P.C. against the accused

on completion of the investigation for the commission of offence u/s 302 RPC and 7/27IA Act leading to framing of charges for the commission of

aforesaid offences against the accused on April 9,2008 was not produced in the witness box despite a number of opportunities.

In the light of the position as discussed above it is clear that the prosecution has not been able to prove either the motive on the part of the

accused to do away with the deceased or for that matter any evidence to show the involvement of the accused in the commission of the incident

leading to the death of the deceased. There is no eye witness to the incident. None of the prosecution witnesses said anything with regard to the

involvement of the accused in any manner in the killing of the deceased. The statement of PW-22 about the killing of the deceased by the accused

without disclosing the identity of the person from whom he learnt of accused having killed deceased is hearsay, besides runs contrary to his

categorical statement of the accused and deceased having good relations prior to death of the deceased. The statement of PW-22 is therefore of

no use. Reference to the observations of the Hon'ble Supreme Court in Pawan Kumar v. State of Haryana, (2003) 11 SCC 241 and

Haradhan Das v. State of W.B., (2013) 2 SCC 197 with regard to hearsay evidence are reproduced below :

Pawan Kumar v. State of Haryana, (2003) 11 SCC 241.

The other circumstance is that after boarding the taxi, the accused persons had gone to the hotel in question, stayed there during night in a room

along with the driver of the vehicle, in the early morning both the accused left the hotel asking the waiter Vijay Kumar to take care of their uncle i.e.

the driver who was in the room and that they would be returning soon, but never returned and thereafter on opening of the room, the driver was

found dead. According to the statement of Mahavir Singh (PW 6), owner of the hotel, the waiter Vijay Kumar told him that ""the three persons,

namely, two accused persons and the deceased went to the hotel, stayed there during the night and the accused persons left the hotel leaving the

driver in the room"". Vijay Kumar, who was the solitary witness to prove this circumstance, has not been examined for reasons best known to the

prosecution as even according to the prosecution case and evidence there was no other witness on this point. The owner of the hotel has simply

stated that he learnt all-these facts from Vijay Kumar. The presence of the accused persons in the hotel on the fateful night could have been

established by examination of Vijay Kumar, who could have been the only competent witness to prove the same, but he has been withheld for

which no explanation is forthcoming. So far as the evidence of the owner of the hotel, Mahavir Singh (PW 6) is concerned, that is hearsay

evidence as he learnt everything from the waiter and had otherwise no personal knowledge of the same. Evidence of this witness could have been

used to corroborate substantive evidence. In the absence of examination of Vijay Kumar in court, to prove this circumstance, there is no

substantive evidence which could have been corroborated by the evidence of PW 6. Thus evidence of PW 6 cannot be of any avail to the

prosecution to prove this circumstance.

Haradhan Das v. State of W.B., (2013) 2 SCC 197.

Another important aspect of the case is that all these witnesses had appeared at the place of occurrence or near the place of occurrence of in

the house of Barindra Nath Mukherjee only after the incident was over. Even if these witnesses were informed by some other persons as to how

the incident had occurred or other persons including injured persons as to how the incident took place once they arrived at the place of

occurrence, it may not have been a very valuable piece of evidence as ex facie it would be hearsay evidence. It is not the quantity but the quality of

evidence which is of the court's concern.

The Ld. Sessions Court in the circumstances rightly held that the prosecution had miserably failed to prove its case against the accused beyond

reasonable doubt, consequently prosecution case was rejected and accused acquitted.

In the facts and circumstances of the case, the conclusion drawn by the trial Court holding that no offence was made out against the accused

u/s 302 RPC and Section 7/27 I.A. Act, does not warrant any interference. Accordingly, no case is made out for condoning the delay in late filing

of the appeal as well as for grant of leave to appeal. Resultantly, the application seeking condonation of delay as well as leave to appeal and

consequently the appeal are dismissed. Copy of the judgment be transmitted to the trial Court.