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2022 Supreme(J&K) 207
High Court of Jammu and Kashmir and Ladakh at Jammu
RAJNESH OSWAL AND MOHAN LAL, JJ.
Onkar Nath and Another – Appellant
Versus
State of J&K and Another – Respondent
Crl.A.(D) No 33/2019 c/w Crl.Ref. (L) No.13/2019 and Crl.A.(D) No.31/2019
Decided on 31-08-2022
Advocate Appeared:
For the Appellant :Mr. Sunil Sethi, Sr. Advocate with Mr. Navyug Sethi, Advocate
For the Respondent: Mr. Dewakar Sharma, GA
IMPORTANT POINT : If disclosure statement is not proved to have been made by accused, then any recovery allegedly made pursuant to said disclosure is of no consequence.
Headnote:
Ranbir Penal Code, 1989 – Sections 302/34 – Arms Act, 1959 – Sections 4/25 – Indian Evidence Act, 1872 – Section 27 – Murder – Common intention – Life sentence – A person walking on a street witnessing commission of offence can be a chance witness – Merely because a witness happens to see occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times – Important witnesses have not supported prosecution case – Witnesses have not disclosed about occurrence to any one till their statements were recorded – Investigating Officer could not explain delay in recording statement of these witnesses – There is dispute with regard to presence of witnesses on spot – Statement of such witnesses cannot be relied upon for convicting appellants – Appellants acquitted of charges. (Paras 27, 28, 31, 32, 33, 34, 35 and 36)
JUDGMENT :
RAJNESH OSWAL, J.
1. One appeal bearing Crl A(D) No. 33/2019 has been filed by appellants-Onkar Nath and Pawan Kumar, whereas the other appeal bearing Crl A (D) No.31/2019 has been filed by appellant-Rakesh Kumar against the judgment of conviction dated 25.04.2019 and order of sentence dated 27.04.2019 passed by the court of learned Additional Sessions Judge, Kathua (hereinafter to be referred as the trial court) in File No.108/14/12 titled “State versus Onkar Nath & Ors.”, whereby the appellants have been convicted for commission of offences under sections 302/34 RPC and 4/25 Arms Act and they have been sentenced to undergo rigorous imprisonment for life and fine of Rs. 30,000/- and in default of payment of fine, they have been directed to undergo further simple imprisonment for 03 months. Further the appellants namely Onkar Nath and Pawan Kumar have been sentenced to simple imprisonment for 03 years for commission of offence under section 4/25 Arms Act. Both these appeals are being disposed of by the common judgment.
2. The judgment has been assailed on the ground that the prosecution could not prove the case against the appellant as also the recovery of weapons has not been proved by the prosecution.
Contentions of Appellants:
3. Mr. Sunil Sethi, learned senior counsel assisted by Mr. Navyug Sethi has vehemently argued that even the alleged injured witness, who was complainant as well, has not supported the prosecution and the two witnesses, namely, Balbir Singh and Bachan Lal, who have been allegedly cited as eye witnesses cannot be relied upon as the mere perusal of their statements would reveal that they were chance witnesses and they have not been able to satisfactorily explain their presence on spot. In nutshell the contention of appellants is that prosecution has miserably failed to prove by cogent evidence that the appellants had killed the deceased. He further argued that even the disclosure statements of the appellants have not been proved, those led to the recovery of weapon of offences.
Contentions of Respondent:
4. Per contra, Mr. Dewakar Sharma, learned Dy. A.G, vehemently argued that the presence of eye witnesses on spot was natural as they were the passengers travelling in the Bus and the prosecution had proved the case against appellants beyond reasonable doubt.
5. Heard and perused the record.
Case of Prosecution:
6. The case of the prosecution is that on 28.04.2005 at 2035 hours, the complainant, Balbir Singh in an injured condition, made an oral report in the Police Station, Hiranagar that he was a driver of the bus bearing registration No. JK02T-6443 and one Santokh Singh alias Shoka S/o Thoru Ram was the conductor of the bus. After boarding the passengers from Jammu, they were going towards Kathua and at around 7:30 PM in the evening, when he reached at Kishanpur Kandi NHW, the bus was stopped for de-boarding of the passengers. He heard the noise and when he looked back, he found that three boys, one was having drat in his hand, second one was with kirch and third one was without weapon, had got hold of conductor. The boy, having drat in his hand, hit the conductor at his arm and the second boy having kirch hit him at the left side of the chest due to which the conductor was seriously injured and he fell down and became unconscious. When he intervened, then the boy having drat, hit him on his arm and threatened that in case he came ahead, he would kill him. All the three persons because of enmity and in pursuance of the conspiracy had injured the conductor with kirch and drat. When few passengers raised hue and cry, all the three accused ran away. He did not know the names of the boys but could identify them and all the three boys were of 25-30 years of age. One of them was tall and the other two were of normal height. He took the conductor in an injured condition to the Kathua Hospital and on examination, the Doctor declared him brought dead.
7. On receipt of the information, FIR bearing No.
