STATE Vs. ZILLA SINGH

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment dated April 17, 1971, of the learned Additional Sessions Judge, Srinagar, acquitting the respondent of the charge under Section 302, R. P. C. for causing on the evening of February 14, 1968, the death of Amar Singh constable No. 673 of D. Company of the 1st Battalion of the Indo Tibetian Border Police force posted at the transit camp at Chuma-tong, about 120 miles from Leh, which was used as a place for resting and keeping equipment by the army and police personnel in distress.

(2.) THE story as put forth by the prosecution was that on February 18, 1968, when Lance Naik Ram Dass of D Company of the aforesaid force who had been detailed by his superiors from Handlay post to get fresh supplies of pepper from the aforesaid transit camp reached the bunker of the deceased, he found the latter lying murdered on his cot. On seeing the gruesome sight he was panic stricken and ran for help to the Head quarters of the 16th Dogra Regiment which was closeby. On being apprised of the matter the Commandant, the Subedar Major, and some other officers of the regiment including a doctor repaired to the spot. After mounting guard at the bunker and asking Lance Naik Ram Dass to stay on, the Commandant rang up Mr. M. L. V. Garg, the Assistant Commandant of the I. T. B. Force at Leh, and informed him about the incident. Mr. Garg in turn informed the Superintendent of Police, Leh, vide Ex. P-l and requested him to take necessary action. On receipt of Ex. P-l the Deputy Superintendent of Police, Leh, directed Shri Ghulam Hassan Khan, Circle Inspector of Police, to investigate into the alleged offence. The Circle Inspector, instructed the police station Neoma to register a case under Section 302, R. P. C. and himself left for Chumatong on that very evening along with Mr. S. N. Singh, Deputy Superintendent and some constables of the I. T. B. Force. On the arrival at the spot on the following day the Inspector took charge of the dead body of the deceased, prepared the site plan, the injury statement of the deceased, and other necessary papers and seized the articles found lying in the bunker. On his return to Leh the Circle Inspector handed over the dead body to Dr. S. T. Phuntsog, Medical Officer, Leh, who performed the autopsy on February 20, 1968, and found the following injuries on the person of the deceased : 1/-One incised wound 3"x2"x3 1/2" in front of the neck cutting the larynx and anterior wall of the oesophagus (that part through which food passes) and cutting the intervening muscles and ligaments. 2/-Two incised wounds about 1 1/2"x 1" x 1/2" on the right side of the neck cutting the neck muscles and external carotid artery. 3/- One incised wound 2"x 1"x 2" on the left side of the neck cutting the platysma and muscles of the left side of the neck with carotid artery. The doctor was of the opinion that the death of the deceased was the result of excessive haemorrhage due to multiple incised wounds on the neck which were sufficient in the ordinary course of nature to cause the death of the deceased. The doctor was further of the opinion that the injuries had been inflicted on the deceased by means of a sharp edged weapon some 3 to 6 days before the post-mortem examination. The specimens of the spleen, lungs, liver and stomach of the deceased were sent by the doctor to the Chemical Examiner for examination which revealed that opium was either taken by the deceased or was administered to him. During the course of the investigation the police obtained on March 13, 1968, from the I. T. B. stores the kit belonging to the respondent which had been deposited by him on his transfer from Chumantong to some other post. At the instance of and pursuant to the information stated to have been supplied by the respondent, the police recovered a Roamer Watch the same day, alleged to belong to the deceased from a "mani" near the Khalsi bridge. Acting on another piece of information alleged to have been given by the respondent, the police made a search for the knife the supposed weapon of offence in the Sindh river but the same did not yield any fruitful result. After completing the investigation the police challaned the accused in the Court of the Judicial Magistrate, Leh, who committed him to the Court of Sessions. After holding a regular trial the learned Additional Sessions Judge, Srinagar, to whose file the case was transferred acquitted the respondent of the aforesaid charge holding that it had 'not been established beyond doubt that no one but the accused had cause and opportunity to murder the deceased. ' It is against this acquittal order that the present appeal is directed.

(3.) APPEARING on behalf of the State Mr. Amar Chand has urged that the facts and circumstances proved in the case are incompatible with the innocence of the accused and are incapable of any explanation on any other hypothesis than that of guilt of the accused.