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2017 Supreme(J&K) 6
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mohammad Yaqoob Mir & B.S. Walia, JJ.
Jagdish Raj - Appellant
Vs.
State - Respondent
Cr. Appeal No. 50 of 2009 c/w Confirm. No.16 of 2009
Decided On : 03-02-2017
For the Appellant :Mr. R.P. Sharma, Advocate.
For the Respondent: Mr. Raghu Mehta, AAG.
The judgment underscores the significance of procedural fairness, the need for conclusive evidence in circumstantial cases, and the accused's right to recall witnesses after an alteration of the charge.
Headnote:
Section 302 RPC - Conviction based on circumstantial evidence - Acquittal due to lack of conclusive evidence - Failure to recall witnesses after alteration of charge - Violation of procedural safeguards
Fact of the Case:
The appellant was convicted for murder under Section 302 RPC based on circumstantial evidence. The defense argued that the prosecution failed to recall witnesses after the alteration of the charge, leading to a vitiated trial. The defense also presented evidence to challenge the prosecution's case.
Finding of the Court:
The court found that the circumstantial evidence presented by the prosecution was not conclusive and lacked corroboration. The defense evidence was not adequately considered, and the procedural safeguards following the alteration of the charge were violated.
Issues: The issues revolved around the sufficiency of evidence, procedural irregularities, and the failure to recall witnesses after the alteration of the charge.
Ratio Decidendi: The court emphasized the importance of procedural safeguards and the need for conclusive evidence in cases based on circumstantial evidence. It highlighted the violation of the accused's right to recall witnesses after the alteration of the charge.
Final Decision: The appellant was acquitted and released, and the appeal was allowed. The court found that the prosecution failed to prove the case beyond a reasonable doubt, and the procedural irregularities led to a vitiated trial.
Yaqoob, J.
1. Appellant vide judgment impugned dated 18.08.2009 has been convicted for having committed murder punishable under Section 302 RPC. After hearing on quantum vide order dated 19.08.2009 has been sentenced to undergo imprisonment for life and fine of Rs.2,000/-.
2. The learned trial court has submitted the proceedings of the case for confirmation of the sentence as required in terms of Section 374 CrPC. Same stand registered as Confirmation No.16/2009.
3. Registration of the case as Crime No.34/1998 P/S Nowshera Rajouri on completion of investigation has culminated in filing the Charge sheet (Challan) before the Court of Judicial Magistrate First Class (Sub Judge) Nowshera on 23.06.1998 for commission of offence punishable under Section 306 RPC. Learned Magistrate on the same date committed the case to the Court of Sessions Judge Rajouri.
4. Learned Sessions Judge vide order dated 24.07.1998 framed the charge against the accused for commission of offence punishable under Section 306 RPC to which accused pleaded not guilty, as such prosecution was asked to lead evidence in support of the case. Out of the listed 13 PWs, from 24.07.1998 to 02.08.2002, 10 witnesses were produced and examined. Prosecution evidence was closed by the trial court vide its order dated 02.08.2002.
5. After hearing the learned PP as well as counsel for the defence in terms of Section 273 CrPC on 14.09.2002, it was opined by the learned trial court that accused is required to enter upon the defence. So was asked to produce the witnesses in defence. On the next date, i.e. 11.10.2002 as was fixed, counsel for the accused made a statement that witnesses in defence are not required. Case was finally heard on 12.12.2002 and reserved for judgment.
6. On 30.05.2003, learned trial court recorded that the trial has been completed and final arguments have been heard. One of the prosecution witnesses Dr. Swatantar Singh, Assistant Surgeon, SDH, Nowshera, who had conducted the post-mortem on the dead body of the deceased on 18.05.1998 has stated that one of theinjuries found on the person of the deceased at the time of post mortem by the Doctor was
“A well defined ligature mark, slightly depressed over the neck, just below the level of thyroid cartilage, encircling the neck completely and horizontally. The margins of the mark are having abrasions. Ligature mark is half inch in width.”
7. The opinion of the doctor as recorded in the post mortem report EX.-PW-SS/1 was reiterated by him in his statement so as to show that the cause of death was
“Asphyxia and Venous congestion as a result of ligature around the neck”.
8. Learned trial court observed that the post mortem report in itself did not indicate that the death of the deceased was suicidal. Further noticed that doctor in his statement as witness has made it clear that the said injury could most probably be caused by strangulation and the strangulation can only be homicidal or accidental. Learned trial court considering the nature of post mortem report and after reading the prosecution evidence felt that the evidence of the police officers/officials connected with the investigation of the case is essential for the just decision of the case. Prosecution has not produced the said witnesses i.e. PW 11 and 12 when they are required to be examined in light of the points raised, invoking the powers under Section 540 Code of Criminal Procedure summoned PWs 11 and 12 who had investigated the case. PW12 was produced and examined whereas whereabouts of the PW 11 could not be traced when for the long time till 31.03.2004 his presence could not be secured. Learned trial court in its order dated 31.03.2004 recorded that despite all efforts presence of the PW-11 could not be secured, as such cannot be again summoned.
9. As reflected in order dated 30.03.2009 by the trial court, that pursuant to the order of the High Court dated 05.03.2009, the case had been withdrawn from the file of learned Sessions Judge Rajouri and
