RAM LAL Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This appeal is directed against the judgement of Sessions Judge, Udhampur, file No. 131-A/Session, dated 21-2-1992 whereby the appellant has been convicted under Section 302 R. P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for two months. The facts of the case may be mentioned briefly. Certain labourers were engaged by Contractor Om Prakash for the construction of residential quarters MESNCO at Thil opposite advance main workshop. Temporary hutments had been constructed for these labourers. On 24-8-1985 Anil Kumar accompanied by Tikam Singh reported to the Police at Udhampur that his father had contract for construction of residential quarters for which purpose labourers were engaged. At about 4.35 am Tikam Singh told him about the deadbody of Dil Bhai wife of Ram Lal lying in the bed on the floor outside the hut. Her neck had been cut from left side wherefrom blood had oozed and had fallen on the floor and the bed. Ram Lal was present in the hut during the night but he was not there when the deadbody was seen. Tikam Singh stated that he had seen the dead body himself with cut by a sharp edged weapon on the neck and that on 23-8-1985 accused Ram Lal did not take lunch being annoyed with his wife, but both of them had their meals at 10 in the night. They slept outside the hut along with minor son Bansi Lal. First Information Report 296/1985 was lodged and SHO Joginder Kumar started investigation of the case. While doing so, he took in possession the dead body, blood stained earth and recorded the statement of witnesses. Ultimately, challan was filed in the Court of Chief Judicial Magistrate Udhampur, which committed the accused for trial to the Court of Session, Judge, Udhampur; Charge was framed against the accused to which he pleaded not guilty. Consequently the trial commenced. The prosecution examined as many as sixteen witnesses m the case. According to Pritam Lal (PW 1) the accused gave statement to the police that the Tangia with which he had killed the deceased had been thrown on the otherside of the road which he could get recovered. This statement was recorded and got attested from the marginal witnesses. Thereafter, the accused went across the road and recovered the Tangia and handed it over to the police (Exp. 1). During the cross-examination, he pointed out that his hut was at a distance of 4/5 huts from the hut of the accused. He had slept inside the hut, whereas the accused, deceased and child slept outside. He did not hear any noise of Dil Bhai. He also went to the place of occurrence and after lighting the lamp he found that the deceased was still alive but was not speaking. Tangia (Exp. 1) was recovered from a distance of 20 feet from the road. Smt. Amrika Bhai (PW-2) has stated that she knew the deceased who was stabbed by the accused after sitting on her chest. Her statement was recorded on 5-2-1986. At about 4 in the night she came out of her hut for urination and saw that the accused was sitting on the chest of the deceased and was beating her. She could not say as to with what object he was doing so. Dhil Bhai did not raise any hue and cry but she raised cries. On hearing the cries 3/4 labourers came on spot. Tikam Singh was one of them but she did not know the names of others. Ram Lal ran away from the spot. They saw the deceased and found that the bed was stained with blood which came out from her neck. Tikam Singh informed Om Prakash, contractor about the occurrence that very night. She admitted that her hut was adjacent to the hut of the accused who had slept on the floor outside the hut alongwith the deceased. It was dark at the time of occurrence. The deceased was of good character and no outsider used to come to her. Ram Lal had never any quarrel with her. Anil Kumar son of the contractor had come to the spot on that very night. When Tikam Singh came to the spot, accused had already fled. Tikam Singh had followed the accused with 2/3 persons. Tikam Singh had seen the accused from a distance of 30 yards while he was going across the road. She had told Anil Kumar that Ram Lal had killed the deceased. She had also told Tikam Singh about it. Army men lived near their huts though they would not come to the house of the accused. Tikam Singh (PW-3) has stated that his statement was recorded on 5-2-1986. His hut was opposite to the hut of Ram Lal. At about 4 a.m., he heard noise of Smt. Amrika Bhai (PW-2) saying that the accused was beating the deceased. He came out and saw that accused had gone 25/30 paces away from his hut. Smt. Amrika Bhai was standing near her door. When he looked at the deceased, she was murmuring and he went after Ram Lal up to 8/10 paces, whereafter he came back since he was threatened with death by the accused in case he continued following him. In the meantime other labourers also came out of their huts. Smt. Amrika Bhai lighted the lamp and in its light they saw that the blood was oozing out from the neck of the deceased. During this night accused and deceased were sleeping outside the hut. The couple had a son, aged 5/6 years. When he asked the deceased as to what had happened, she could only say "ah ah" and said nothing more than this and nodded her head when asked whether the accused had killed her. One pair of Chappal of accused was also seized by the police (EXP ETS/1). No cries of the decease were heard. He could not say as to why the accused had slept outside. Arm people who lived nearby, used to talk to the deceased freely. He had no knowledge that the deceased was of bad character rather she was a gay lady. About 30 labourers used to live in the huts. He had seen the accused running from a distance of 30/35 feet. He informed Anil Kumar about the occurrence in detail and accompanied him to the police station for lodging report where the name of the accused was stated to be the killer of the deceased. The police was also informed about his following the accused. Jeevan Bhai (PW-5) has stated that her statement was recorded on 6-2-1986. The deceased was well built, beautiful and healthy as compared to her and used to line happily and would cut jokes which was not liked by her husband who used to restrain her from this behaviour. Some months back the accused hit her head with a brick and broke her tooth on another occasion. In the night she heard the cries of Smt. Amrika Bhai saying that the accused had ran away by killing the deceased. The deceased was not in a position to talk. Her hut was located 3/4 huts away from the hut of the accused who had slept outside that night with the deceased. Ram Sahai (PW-6) has also stated that his statement was recorded on 6-2-1986. While he was sleeping in his hut, he heard noise of Smt. Amrika Bhai that the accused was running away after killing the deceased. He came out and saw the deceased lying in the bed outside the door and blood was coming out from her neck. The accused was not there. He went to police station along with Pritam Lal. The accused gave statement to the police that he had thrown the axe below the bridge where there were bushes. His statement was recorded by the police. The accused took the police to a place where Tangia (Exp. 1) was recovered. It was taken out by the accused from the bushes and there was no troughfare at that place. His hut was next to the hut of the accused. He never heard her cries. Smt. Amrika Bhai's hut was at a distance of 6/7 huts. Accused and deceased had slept outside the hut while others had slept inside. He did not see the deceased with any army personnel, but she used to cut jokes with everybody otherwise the accused and deceased were living peacefully.

(2.) Dr. Jatinder Gupta (PW-4) found the following injuries on the person of the deceased; "An incised wound on the left side of her neck in the middle 2" long 1" wide and 1.5" deep cutting part of the sternomastoid muscle, left carotid vessels and left side of third vertebra." In his opinion the deceased died of shock due to haemorrhage from the said injury in her neck, with duration of 24 hours. It was grievous in nature caused by sharp cutting weapon like the Tangia (Exp. 1) On receiving the injury, the deceased could not have moved her head. She must have lost her senses and could not have responded.

(3.) Judicial Magistrate Ravinder Kumar (PW-7) recorded the statement of Tikam Singh and Amrika Bhai under Section 164 Cr. P.C. on the direction of Chief Judicial Magistrate Udhampur (EXP WRK and EXP WRK/1). They have been proved by this witness. Kartar Singh (PW-8) noticed the dead body of the deceased outside the door of the hut with blood oozing out of the neck injury and falling on the clothes at the bed. The police took possession the dead body, one chappal and blood stained earth in addition to gunny bag and Talai. He lived at a distance of 1 Km from the place of occurrence. Seized Chappal was not shown to him in the Court. People residing in the huts had told him that the Chappal belonged to the deceased. Casha Chowkidar. (PW-9) was called to the spot. He supports the recoveries made by the police and the seizure memo prepared by it. Hem Raj Gupta (PW-10) and Hans Raj (PW-11) are not very important witnesses. Prabh Dayal (PW-12) affected the arrest of the accused. While Mohd Sultan SHO (PW-14) and Joginder Kumar Anand (PW-15) conducted the investigation. It has been pointed out by SHO Mohd Sultan that he investigated this case partly. The accused made a disclosure statement while in custody regarding the weapon of offence which was recovered from the bushes on Dhair road where it was kept concealed by the accused which was not a thoroughfare. During cross-examination he admitted that there were no blood stains on the Tangia. The accused was brought to Udhampur on 4-10-1985 and disclosure statement was made on 6-10-1985 in the presence of Ram Sahai and Pritam Lal. He took over investigation from SHO Joginder Kumar Anand (PW- 15). Shri Joginder Kumar Anand (PW-15) also investigated this case for sometime. It was registered at the instance of Anil Kumar accompanied by Tikam Singh. He left for the place of occurrence and found the dead body of the deceased outside the hut on the floor over the bed and gunny bag which was stained with blood. On examination of the dead body, cut injury was found on the left side of the neck out of which blood in large quantity had come out and fallen on the clothes of the deceased who was wearing a Sari and Bloch. A gents plastic Chappal was found towards the foot side of the deceased. It was of the accused and was seized separately. The witnesses saw the accused running from the place of occurrence in the light of moon. Anil Kumar (PW-13) was narrated the occurrence by Tikam Singh and Dev Raj. He went to the police station along with Tikam Singh. Before he reported the matter he had gone to the spot where he must have been told the name of the killer and weapon used by Smt. Amrika Bhai, Tikam Singh and others. Neither he, nor Tikam Singh gave the name of the accused to the police while recording first information report which shows that the name of the killer was not known to either of the prosecution witnesses by the time the first information report was recorded. Consequently, the investigation has not at all been truthful and the witnesses have been created simply to initiate and substantiate the case against the accused. The accused has stated under S. 342 Cr. P.C. that the witnesses had given false statement on account of hostility towards him. He did not make any disclosure statement to the police regarding the recovery of weapon of offence. He had good relations with his wife and they were living peacefully. He had gone to his village in connection with some domestic obligation. Two witnesses namely Prem Lal (DW-1) and Shoki Ram (DW-2) have been examined in defence. These two witnesses were living in some of the huts near the place of occurrence. Prem Lal (DW-1) has stated that Amrika Bhai was heard crying that Ram Lal's wife had been murdered by somebody. She had not stated the name of the killer. Tikam Singh came to the spot afterwards. He did not name anyone although his relations with the accused were not good. The accused and his wife were living peacefully and there was no dispute between them. He had gone there two days prior to the occurrence. He occupied 4th hut from that of the accused and 3rd hut from the hut of Smt. Amrika Bhai. He could not say the time of the death of the deceased though he had seen the deadbody outside the hut. He had no knowledge whether the deceased had slept outside or inside the hut. Both these witnesses say that they slept inside their huts. Shoki Ram (DW-2) heard the cries of Smt. Amrika Bhai that deceased had died. He came out of the hut and saw the deceased lying dead with blood on her bed. Somebody had killed her. Smt. Amrika Bhai did not name anybody at that time. Accused had gone to his village 2/3 days prior to the occurrence. Nobody has said anything about the killer of the deceased. He has denied the suggestion that the accused ran away after killing the deceased. He belongs to the village of the accused. The deceased was not of bad temperament and accused never gave beatings to her prior to the occurrence. Smt. Amrika Bhai use to meet him but she never told him about the killing of the deceased by the accused. We heard learned counsel for the parties and perused the case tile carefully in order to examine the correctness of the impugned judgement. It was contended by Mrs. S. Kaur learned counsel for the accused that the trial Court judgement is patently wrong being against the facts on the file. The trial Judge has not appreciated the evidence correctly resulting in erroneous conclusions adverse to the accused. Specifically, it was urged that the prosecution case suffers from numerous deficiencies and the guilt has not been proved against the accused. The evidence is thoroughly weak, shaky and undependable. No conviction could possibly be recorded on this evidence. The motive for commission of crime has not been proved. Apart from this, direct, circumstantial evidence is totally unsatisfactory. The discovery of weapon of offence is not in accordance with law and it has wrongly been held that the accused was last seen with the deceased and his sudden disappearance and subsequent arrest from his village indicated his participation in the crime. Shri Hafiz-ur-Rehman, Govt. Advocate submitted that there is clinching evidence of the commission of crime by the accused, therefore, his conviction is absolutely correct and is not liable to be set aside. The prosecution has been able to prove the motive for the commission of crime. Even if it is taken that motive has not been proved satisfactorily, other evidence of direct, circumstantial and Medical is so strong that the plea of the accused is rendered completely without any basis. Smt. Amrika Bhai may be the sole eye witness to the occurrence, but her testimony is good enough to substantiate the charge against the accused. There is evidence of recovery of weapon of offence at the instance of the accused, evidence of witnesses who came to the spot soon after the event, fleeing of the accused from the place of occurrence and failure to prove the plea of alibi taken by him are sufficient to hold him responsible for the death of the deceased. With a view to examine the rival contentions of the learned counsel for both sides, we examined the matter extensively to satisfy ourselves whether judgement of the trial Court is sustainable. The first question for determination is whether the accused had motive to kill the deceased. According to the prosecution, the accused wanted to do away with the deceased, since he suspected her fidelity towards him and she had been warned and subjected to beating as well in the past not to cut jokes with the other persons Narration of evidence hereinabove clearly points out that the deceased was free and frank with other persons, but there is no dependable evidence to indicate that she was not faithful to the accused and had been subjected to beatings at times by him for her behaviour. Rather, it has been stated by most of the prosecution witnesses that the deceased was a good lady with cheerful disposition, and with good physical features. The couple was living peacefully and there could be no reason for the accused to have killed her. The trial Court has rightly rejected the case of the prosecution on this aspect. Turning to other evidence in the case, there are glaring weaknesses in the prosecution case. It is pointed out that the prosecution witnesses say that the accused, deceased and the child slept outside the hut during that night. The accused was seen beating the deceased while sitting on her chest. Her cries attracted Smt. Amrika Bhai and other labourers living in the nearby huts. The statement of Smt. Amrika Bhai is hardly dependable. She states that she noticed the occurrence when she came out for urination, but she also states that the deceased did not raise any hue and cry but raised cries on which 3/4 labourers came to the spot. It is in evidence that she continued standing in front of her but for sometime and evidence points out that 3/4 labourers came to the spot. If this is accepted, then the accused should have been seen beating the deceased by all of them and all of them should have run after him in the normal course. At one stage Smt. Amrika Bhai states that 2/3 persons ran after the accused, but at another states that only Tikam Singh followed him. She has thus contradicted her own statement on this crucial point. The basic flaw in the prosecution story is the incredibility of the case. When all the labourers were sleeping inside their huts, there could be no reasons why only the family of the accused should have slept outside the hut in the month of August when there are rains. The legitimate conclusion can be that the incident did not take place outside the hut, Either it took place inside the hut or the deceased was killed somewhere else and her body placed in front of the hut. The assailant could hardly be recognised during this part of the night more particularly when he was sitting on the chest of the deceased with his back towards the huts of the prosecution witnesses. When the weapon of offence could not be noticed, it is difficult to expect that the accused could be recognised by the witnesses when the occurrence was not preceded by any quarrel between the couple. Apart from this, the prosecution case is that minor son of the couple aged 5/6 years was also sleeping with them, but there is no evidence pointing out his reaction to the beating of the deceased by the accused nor about his subsequent keeping. The child could have been the most important witness pointing out the killer of the deceased. The prosecution has not cited the child as well as Om Prakash although they are most material witnesses to the case. There is no explanation with respect to this omission. Further, it has not been established that the bed over which the deceased was sleeping belonged to the family. The Chappal recovered from the spot has not been connected either with the deceased or the accused eliminating the participation of outsider in this occurrence. The statement of Tikam Singh that the accused had threatened the latter in case he followed him is hardly acceptable when there were 3/4 labourers on the spot, Tikam Singh could not have run after the accused alone. It appears that this version of the witness is plainly concocted to support the prosecution version. There is another aspect of the case which deserves to be noticed. In case the incident took place on the spot as alleged by the prosecution, apart from the fact that the accused would not have postponed the killing of the deceased to that part of the night though motive part of the prosecution case has been rejected, however, in case he intended to kill her he would not have laid the bed outside in the open knowing fully well that his hut was along with the huts of other labourers. Rather, he could have killed her inside the hut during the night. Further, it is stated by Smt. Amrika Bhai that the cries of the deceased attracted her and 3/4 labourers to the spot. If this version is accepted, then the deceased should have cried that she was being beaten and killed by the accused. Prosecution case therefore, appears to be totally false. Dr. Jatinder Gupta has pointed out in his statement that with this kind of injury, the deceased would have become unconscious and incapable of response. Consequently, the version of Smt. Amrika Bhai is rendered thoroughly baseless. Apart from the conclusion that the incident did not take place in the manner suggested by the prosecution, these witnesses did not see the taking place of the occurrence and all of them including the defence witnesses saw the dead body in the morning.