State vs Ashwani Kumar & Ors.

Sanjeev Kumar J

1 This acquittal appeal, preferred by the then State of Jammu and Kashmir (now Union Territory of Jammu and Kashmir), is directed against an order and judgment dated 26.04.2010 passed by the learned 1st Additional Sessions Judge, Jammu [“the Trial Court”] in Criminal Challan No. 78/2006 titled State v. Ashwani Kumar and others, whereby the respondents/accused have been acquitted of the charges framed against them. 2. We have heard learned counsel for the parties, perused the record of the trial Court, the evidence led by the prosecution and the impugned judgment.

Before we advert to the grounds of challenge urged by learned counsel for the appellant-State for assailing the impugned judgment, it would be appropriate to notice, in brief, the prosecution case.

The prosecution case, as set up before the Trial Court, is that on 06.10.2005, at about 8:35 a.m., Police Station R.S. Pura received an information from a reliable source that Ajay Gupta alias Sonu, son of Vijay Gupta, resident of Ward No. 5, R.S. Pura, had gone with Tarsem Lal alias Sema, son of Mahinder Lal, resident of Ward No. 7, R.S. Pura, in connection with some work. At about 8:30 a.m., while Ajay Gupta and Tarsem Lal were returning to their respective homes and had reached near the house of accused Gurbachan Lal alias Bulli, accused Ashwani Kumar alias Achhi, Rakesh Kumar, Kala and Gurbachan Lal alias Bulli allegedly stopped Ajay Gupta and assaulted him with Tokas and Khokharies, with the intention of causing his death. It was alleged that the accused persons left Ajay Gupta lying injured in the street and fled away from the spot. On receipt of this information, FIR No. 82/2005 came to be registered at Police Station R.S. Pura for offences under Sections 307, 147, 148, 149 and 341 RPC and Section 4/25 of the Arms Act. The investigation was set in motion. The Investigating Officer, accompanied by other police personnel, took the injured Ajay Gupta to Government Medical College, Jammu. The site plan was prepared, blood-stained soil and simple soil were seized and statements of the witnesses were recorded.

During the course of investigation, information was received by the police that Ajay Gupta had succumbed to his injuries. Consequently, Section 302 RPC was added to the case. The dead body was taken into custody and subjected to post-mortem examination. The blood-stained clothes of the deceased were also seized and sealed. Photographs of the dead body were taken.It was subsequently alleged that Ranjit Singh, son of Karan Singh, had also accompanied the accused persons. Thus, according to the prosecution, five persons were involved in the occurrence. Accused Rakesh Kumar and Gurbachan Lal were arrested on 29.10.2005. According to the prosecution, accused Rakesh Kumar made a disclosure statement, pursuant to which a Toka was recovered from the bushes near Peer Baba Road, Bannota, R.S. Pura, at his instance. The prosecution further alleged that the deceased Ajay Gupta and accused Ashwani Kumar were heading rival groups and were having enmity with each other. It was alleged that on 05.10.2005, accused Ashwani Kumar called the other accused persons to his house, where a conspiracy was hatched to kill Ajay Gupta. It is further case of the prosecution that on the morning of 06.10.2005, accused Gurbachan Lal called Ajay Gupta from the house of Tarsem Lal into the lane and caught hold of him. The other accused persons, who were armed with Tokas and Khokharies, attacked him.

On conclusion of investigation, the challan was presented initially before the learned Judicial Magistrate 1st Class, R.S. Pura. Proceedings under Section 512 CrPC were initiated against some of the accused who were absconding. Since one of the offences was exclusively triable by the Court of Sessions, the case was committed to the Sessions Court and was thereafter transferred to the learned Trial Court.Charges were framed against the accused persons for offences under Sections 302, 147, 148 and 149 RPC and Section 4/25 of the Arms Act. The accused pleaded not guilty and claimed to be tried. In support of its case, the prosecution produced and examined 17 witnesses. The statements of the accused were also recorded under Section 342 CrPC. They denied the incriminating circumstances put to them and claimed to be innocent. In defence, the accused examined two witnesses.

Upon consideration of the evidence and other material placed on record, the learned trial Court came to the conclusion that the prosecution had failed to establish the charges against the accused and, accordingly, acquitted them.

Learned counsel appearing for the appellant-State would argue that the learned Trial Court has failed to appreciate the evidence on record in its proper perspective. It is submitted that the homicidal death of Ajay Gupta stands established and that the ocular evidence, medical evidence and the circumstantial evidence collected by the police, when considered together, are sufficient to establish the involvement of the accused persons in the crime. It is further submitted that the testimony of PW Pushpa Devi and PW Sheela Devi could not have been discarded merely because they did not support the prosecution case in its entirety during cross-examination.

Per contra, learned counsel appearing for the respondents would support the judgment of acquittal. It is submitted that the learned Trial Court has examined the evidence in its entirety and has rightly found the prosecution case doubtful. It is further submitted that the material witnesses have not supported the prosecution case; the alleged eyewitnesses have resiled from the prosecution version; the alleged recovery of the weapon has not been established; and the alleged recovery was from an open and accessible place. It is also pointed out that no blood was found on the alleged weapon. Learned counsel, therefore, submits that the view taken by the learned Trial Court is only a plausible and reasonable view on the evidence available on record and, therefore, does not warrant interference in this appeal.

Having considered the submissions made by learned counsel for the parties and perused the evidence on record, the foremost question that arises for consideration is whether the prosecution has been able to establish, beyond reasonable doubt, that the respondents were responsible for causing the injuries to the deceased which resulted in his death.There is no dispute that the death of Ajay Gupta was homicidal in nature. PW-10 Dr. Braham Dutt, who conducted the post-mortem examination has very clearly stated that the death of Ajay Gupta was due to haemorrhage and shock as a result of multiple injuries caused by a heavy sharp-edged weapon. As many as 15 injuries were found on the dead body of the deceased. The homicidal nature of the death, therefore, stands established. However, the establishment of the homicidal death, by itself, does not prove involvement of the respondents/accused in the commission of the offence. The prosecution was required to further establish, through reliable and cogent evidence, that the respondents were the persons who had caused the injuries which resulted in the death of Ajay Gupta. It is on this aspect that the prosecution case falls short.

The prosecution mainly relied upon the testimony of the eyewitnesses, namely, PW Pushpa Devi, PW Sheela Devi, PW Melo Devi and PW Tarsem Lal. PW Tarsem Lal and PW Melo Devi were declared hostile by the prosecution. Despite their lengthy cross-examination, nothing material could be elicited from their testimony so as to connect the accused persons with the commission of the offence.PW Raj Kumar also did not support the prosecution case and rather stated that he neither knew the accused persons nor the deceased. PW Davinder Kumar likewise did not support the prosecution. PW Parveen Gupta was declared hostile. His testimony that, although he knew the accused persons and the deceased, yet nothing happened in his presence, does not further the case of the prosecution; rather, it completely destroys it. PW Darshan Kumar, who was cited as a witness to the disclosure statement and recovery of the weapon, also did not support the prosecution case. He stated that he did not know the accused persons and that his signatures had been obtained by the police at Government Medical College, Jammu. He specifically denied that accused Rakesh Kumar had made any disclosure statement in his presence or that any weapon was recovered at his instance.Thus, despite the witnesses having been subjected to lengthy cross-examination, their testimony does not provide any reliable material connecting the accused persons with the occurrence.

The evidence of PW Pushpa Devi and PW Sheela Devi, on which the prosecution mainly relies upon to establish the identity and involvement of the accused persons, also does not inspire confidence.PW Pushpa Devi, who is stated to be the paternal aunt of the deceased, initially supported the prosecution case in her examination-in-chief. She stated that, on hearing the cries of the deceased, she, PW Sheela Devi and Tarsem Lal came out and saw the accused persons beating the deceased. She further stated that accused Gurbachan Lal had caught hold of the deceased while the other accused persons were beating him. However, in cross-examination, the witness resiled from the prosecution version. She stated that the accused persons had not beaten the deceased in her presence and that she had not named any of the accused before the police. She further stated that the accused persons had no enmity with the deceased and that she did not know why the police had arrayed them as accused.PW Sheela Devi, mother of the deceased, also did not give a consistent account of the occurrence. Though, in her examination-in-chief, she stated that she knew the accused persons, yet in cross-examination she stated that she did not know them and had neither seen them at the time of the occurrence nor seen them committing the murder of the deceased. PW Tarsem has not supported the case of the prosecution and stood declared hostile by the prosecution The testimony of these two witnesses, therefore, does not present a consistent and trustworthy account of the occurrence.

It is well settled that the testimony of a hostile witness is not liable to be discarded in its entirety and that the Court may rely upon such part of the testimony as is found to be credible and receives support from the other evidence on record. In the case at hand, the discrepancies appearing in the statements of the witnesses cannot be brushed aside as mere minor or insignificant variations. On a cumulative consideration of their evidence, serious doubt arises as to their presence at the place of occurrence and, equally, as to the identity of the persons alleged to have committed the offence. The prosecution was required to prove, by clear, cogent and convincing evidence, the involvement of the respondents/accused in the commission of the alleged offence. However, the testimony of PW Pushpa Devi and PW Sheela Devi does not inspire sufficient confidence to sustain the prosecution case against the respondents/accused.

Another circumstance which assumes significance is the delay in recording the statements of the eyewitnesses. The occurrence took place on 06.10.2005. PW Pushpa Devi and PW Sheela Devi were projected as eyewitnesses. Their statements, however, were recorded by the Investigating Officer only on 10.10.2005, after a gap of four days without rendering any explanation.

It is true that delay in recording the statement of a witness during investigation is not, in every case, sufficient by itself to discard the prosecution case. The effect of such delay depends upon the facts and circumstances of each case.In the present case, however, the delay assumes significance because these witnesses were projected as natural eyewitnesses to a serious occurrence. No satisfactory explanation for the delay of four days in recording their statements has emerged from the record. The learned Trial Court was, therefore, justified in considering this circumstance along with the other infirmities appearing in their testimony.. The conduct of the witnesses also assumes significance. Though they were projected as eyewitnesses, neither of them informed the police nor took the injured to the hospital. The evidence of the Investigating Officer shows that the injured was taken to Government Medical College, Jammu, by the police party and that the FIR was registered on the basis of information received from a reliable source and not from any eyewitness. This circumstance, viewed in the backdrop of the material inconsistencies appearing in their testimony, further renders it unsafe to base a conviction upon their evidence.

The prosecution also sought to connect accused Rakesh Kumar with the occurrence on the basis of the alleged recovery of a Toka. According to the prosecution, accused Rakesh Kumar was arrested on 29.10.2005 and, pursuant to a disclosure statement made by him, a Toka was recovered on 08.11.2005 from the bushes near Peer Baba Road, Bannota, R.S. Pura.The alleged recovery, however, has not been established through any reliable and convincing evidence. The witness examined in support of the disclosure statement and recovery did not support the prosecution case. The place from which the weapon was allegedly recovered was open and accessible and the recovery was made after a considerable lapse of time.More importantly, no blood was detected on the alleged weapon. The prosecution version regarding the recovery is also not consistent with the evidence of PW Pushpa Devi. The prosecution witnesses stated that the accused persons were armed with Tokas and Khokharies, whereas only one Toka was allegedly recovered. PW Pushpa Devi further stated that the accused persons had thrown the weapon into a drain while fleeing from the spot, whereas the alleged recovery was effected from bushes.The prosecution has failed to satisfactorily explain the discrepancy between the two versions. In the circumstances, the alleged recovery does not possess the degree of certainty and reliability necessary to connect accused Rakesh Kumar with the commission of the offence. The learned Trial Court was, therefore, justified in declining to place reliance upon the alleged recovery. The prosecution also alleged that the accused persons had fired upon PW Tarsem Lal. The aforesaid allegation is not supported by cogent and convincing evidence on record. The prosecution also relied upon the alleged motive arising out of the purported enmity between the deceased and accused Ashwani Kumar. It is well settled that motive, even if established, by itself cannot take the place of substantive evidence connecting the accused with the commission of the offence. In the present case, the ocular evidence does not inspire confidence and the alleged recovery has also not been satisfactorily established. In such circumstances, the alleged motive, by itself, cannot bridge the material deficiencies in the prosecution case or furnish a basis for recording a finding of guilt. Motive is a double-edged weapon. It could be a reason for the commission of the offence. It can also be a reason for false implication.

It is a settled principle of criminal jurisprudence that the prosecution must stand on its own legs and establish its case by leading cogent and reliable evidence. Any weakness or infirmity in the defence cannot be pressed into service to cure the inherent deficiencies or lacunae in the prosecution case. The defence evidence led by the respondents may, by itself, not be sufficient to establish the defence version; however, that is not the test to be applied in a criminal trial. The burden always remains upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Where, upon an overall appreciation of the evidence on record, the prosecution fails to establish the charge beyond reasonable doubt, the accused are entitled to the benefit of such doubt.

It is true that this Court, while hearing an appeal against acquittal, has the power to reappreciate the evidence. However, the scope of interference in an appeal against acquittal is well settled by the Hon’ble Supreme Court in Chandrappa v. State of Karnataka, (2007) 4 SCC 415.The Supreme Court has held that an appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. At the same time, in a case of acquittal, there is a double presumption in favour of the accused; firstly, the presumption of innocence available to every accused and, secondly, the further reinforcement of such presumption by the acquittal recorded by the Trial Court. The Supreme Court has further held that where two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the Trial Court.

The aforesaid principles squarely apply to the facts of the present case. Having reappreciated the evidence on record, we find that the learned Trial Court has carefully considered the material circumstances arising from the evidence. The learned Trial Court has not discarded the prosecution case merely on account of minor discrepancies. Its findings are based upon material contradictions in the testimony of the alleged eyewitnesses, their having resiled from the prosecution version during cross-examination, the unexplained delay in recording their statements and the failure of the prosecution to satisfactorily establish the alleged recovery of the weapon.The prosecution has undoubtedly established that the deceased suffered a homicidal death. It has, however, failed to establish beyond reasonable doubt that the respondents were responsible for causing his death. The medical evidence establishes the cause and nature of death, but does not establish the identity of the assailants. The ocular evidence is not consistent and the alleged recovery of the weapon has also not been satisfactorily proved.The circumstances, when considered together, create a reasonable doubt regarding the involvement of the respondents/accused in the commission of the offence. The learned Trial Court has, therefore, rightly extended the benefit of doubt to them. The prosecution was required to establish the guilt of the respondents by reliable and cogent evidence, which it has failed to do.

For the reasons stated above, we find no merit in this appeal. The view taken by the learned Trial Court is a plausible and reasonable view on the evidence available on record. No perversity, manifest illegality or miscarriage of justice has been demonstrated so as to warrant interference by this Court in an appeal against acquittal. Consequently, the appeal is dismissed. The judgment of acquittal dated 26.04.2010 passed by the learned 1st Additional Sessions Judge, Jammu, in Criminal Challan No. 78/2006 titled State v. Ashwani Kumar and others, whereby the accused/respondents Rakesh Kumar, Ranjeet Singh and Gurbachan Singh were acquitted, is upheld.So far as the absconding accused are concerned, as noticed by the learned Trial Court, upon their apprehension, the file shall be placed before the learned Trial Court for further proceedings.The record of the Trial Court be sent back along with a copy of this judgment.