Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(J&K) 478

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
SANJEEV KUMAR, MOHAN LAL, JJ.
Baba Kali Dass Bharati S/o Kirpa Ram – Appellant
Versus
State through Public Prosecutor – Respondent
C.R.A. No. 49 of 2011, CONF No. 14 of 2011
Decided On : 23-08-2023

Advocates:
Advocate Appeared:
For the Appellants : Ravi Abrol, Mohsin Bhat.
For the Respondent: Pawan Dev Singh.

The main legal point established in the judgment is the requirement for the prosecution to present credible and reliable evidence to prove the guilt of the accused beyond reasonable doubt in a criminal case.

Headnote:
Conviction Appeal - Murder - 302/34 RPC - Direct Evidence, Circumstantial Evidence, Medical Evidence - [KEYWORD] - Murder - 302/34 RPC - [Direct Evidence of eyewitnesses PW-7 Yash Pal & PW-9 Jagat Singh, Circumstantial Evidence of PW-1 Brij Nath Parihar, PW-2 Khushwant Singh, PW-3 Faquir Singh, PW-4 Chajju Ram, PW-5 Kulbir Singh, PW-6 Davinder Singh, PW-8 Om Parkash, PW-9 Jagat Singh, PW-10 Sat Pal, PW-11 Bishambar Singh, PW-12 Dr. Balkar Choudhary, Medical Evidence of PW-12 Dr. Balkar Choudhary] - The court analyzed the direct evidence of eyewitnesses PW-7 Yash Pal & PW-9 Jagat Singh, Circumstantial Evidence of PW-1 Brij Nath Parihar, PW-2 Khushwant Singh, PW-3 Faquir Singh, PW-4 Chajju Ram, PW-5 Kulbir Singh, PW-6 Davinder Singh, PW-8 Om Parkash, PW-9 Jagat Singh, PW-10 Sat Pal, PW-11 Bishambar Singh, PW-12 Dr. Balkar Choudhary, and Medical Evidence of PW-12 Dr. Balkar Choudhary. The court found that the evidence of eye witnesses PWs 7 & 9 namely Yash Pal & Jagat Singh is unworthy of reliance, discarded and rejected. The evidence of prosecution witnesses, is therefore, qualitatively and quantitatively, insufficient to bring nexus between appellants/ convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. The whole case of the prosecution, therefore, becomes doubtful.
Fact of the Case:

Appellants have been convicted for the murder of deceased Baldev Singh. The prosecution alleged that on 14.02.2003 at 10.30pm, the deceased was killed at Shamshan Ghat Sadian R.S. Pura by Baba Kali Dass and Rekha Kumari. The case was registered under Section 302/34 RPC. The prosecution presented direct evidence of eyewitnesses PW-7 Yash Pal & PW-9 Jagat Singh, circumstantial evidence of PW-1 Brij Nath Parihar, PW-2 Khushwant Singh, PW-3 Faquir Singh, PW-4 Chajju Ram, PW-5 Kulbir Singh, PW-6 Davinder Singh, PW-8 Om Parkash, PW-9 Jagat Singh, PW-10 Sat Pal, PW-11 Bishambar Singh, PW-12 Dr. Balkar Choudhary, and medical evidence of PW-12 Dr. Balkar Choudhary. The appellants challenged the legality, propriety, and correctness of the judgment of conviction on the grounds of lack of credible evidence and misapplication of judicial mind by the trial court.
Finding of the Court:

The court found that the evidence of eye witnesses PWs 7 & 9 namely Yash Pal & Jagat Singh is unworthy of reliance, discarded and rejected. The evidence of prosecution witnesses, is therefore, qualitatively and quantitatively, insufficient to bring nexus between appellants/ convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the accused and commission of offences. The whole case of the prosecution, therefore, becomes doubtful.
Issues: The issues revolved around the credibility and reliability of the evidence presented by the prosecution, particularly the direct evidence of eyewitnesses and the circumstantial evidence. The court had to determine whether the evidence was sufficient to prove the guilt of the appellants beyond reasonable doubt.
Ratio Decidendi: The court held that the evidence presented by the prosecution was weak, fragile, and lacking in credibility, and did not establish a connecting link between the accused and the commission of the offences. The court found the entire story of the prosecution to be incredible and unbelievable, leading to the conclusion that the appellants' guilt was not proven beyond reasonable doubt.
Final Decision: The criminal conviction appeal was allowed, and the impugned judgment of conviction and order of sentence were set aside/quashed. The appellants/convicts were acquitted of the charges leveled against them for commission of offences U/Ss 302/34 RPC.

JUDGMENT :

MOHAN LAL, J.

1. Appellants have assailed the judgment of conviction dated 15.11.2011 and order of sentence dated 18.11.2011 rendered by the court of Ld. Sessions Judge Jammu in case titled State vs. Baba Kali Dass Bharati and Another bearing File No. 12/Sessions, whereby, they have been convicted in FIR No. 27/2003 of Police Station R.S. Pura (Jammu) for commission of offence punishable u/s 302/34 RPC and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- each.

2. Aggrieved of and dissatisfied with the impugned Judgment of conviction, appellants have assailed its legality, propriety and correctness and have sought its setting aside on the following grounds:

(i) that the court below has passed the impugned judgment and sentence on the surmises and conjectures which is foreign to the principal of criminal law, the prosecution was under strict liability to prove guilty of beyond doubt, the court below was obliged to analyse and appreciate the evidence to reach to a conclusion that it is the accused only who has committed offence in question, but in the case in hand prosecution has failed to prove the offence against the appellants but despite that the trial court has rendered conviction against the accused/appellants.

(ii) that the trial Court has also not appreciated rightly the fact that firstly the eye witnesses have not supported the prosecution at all, secondly the recoveries and the seizure memos were not proved by any independent witnesses and lastly, the statement of the investigating officer is in contradiction to all the evidence which has come on record, there is complete misapplication of judicial mind by the court below whereby the appellants have been seriously prejudiced by the manner in which they have been held guilty and convicted.

(iii) that as per prosecution case the occurrence is of 14.02.2003 whereas statements of PWs Brij Nath Parihar, Khushwant Singh, Faquir Singh, Chhaju Ram, Kulbir Singh and Davinder Singh who are witnesses to alleged seizure memos have stated that the occurrence is of 15.02.2003, so their statements could not be believed at all.

(iv) that the statement of PW-7 Yash Pal (eye-witness) cannot be relied upon for the reasons that he is not aware of date, time and year of incident , as per his deposition accused No. 2 Rekha Kumari hit the deceased with axe which is contrary to the prosecution story and the investigation conducted, the said witness has stated that he has not made any statement before the police and moreso he has stated that it was daylight when he went to shamshan ghat but the incident is of night time, so the evidence of PW-7 Yash Pal cannot be relied upon therefore there is no evidence to connect the appellants with commission of crime attributed to them.

(v) that the recoveries made during the investigations cannot be believed as PW-12 Doctor Balkar Choudhary (witness to post-mortem report) has made statement in the court that the weapon shown in the court though resemble with the weapon shown to him during investigation, but it is not the same “spade” as the same does not bear his signature which he subscribed when the same was shown to him during investigation for opinion, moreover it has not been proved by the prosecution that which injury was specifically caused by particular accused and which injury specifically was sufficient to cause death in the ordinary course of nature.

3. Ld. Counsels for appellants have reiterated the same arguments which form the edifice of the memo of appeal, and have vehemently sought the reversal/setting aside the impugned judgment of conviction and sentence.

4. Ld. Dy. AG has supported the impugned judgment and has sought its confirmation by canvassing arguments, that the trial court has rightly appreciated the evidence putforth by the prosecution and has rightly come to the conclusion that the appellants ar