Sindhu Sharma DECISION
Gita Mittal, C.J.
1. By way of the instant appeal a challenge is laid to the judgment dated 7th of April, 2018, passed by the Court of 2nd Additional Sessions Judge, Jammu in the case arising out of FIR No. 77/2010, registered by Police Station, Channi Himmat, Jammu under Section 302/34 of the Ranbir Penal Code against the respondents. By this judgment, the learned Trial Judge acquitted the respondents Vijay Kumar and Sukhdev Raj @ Kala for commission of the offences under Sections 302/34 of RPC with which they were charged. To the extent necessary, the facts giving rise to the case are briefly noted hereafter:
(i) On 9th of February, 2008, the Police Post, Sainik Colony received information that a dead body of an unknown male about 24 years of age was hanging from an iron road (saria) in a shop under construction at sector No. A, Sainik colony, Jammu.
(ii) As the death appeared to be in suspicious circumstances, inquest proceedings under Section 174 Cr.P.C. were initiated which were taken up by Sub-Inspector Karan Chalotra-Incharge, Police Post, Sainik Colony. During the course of this inquiry, the investigating officer visited the spot, prepared the site plan, took the dead body into police custody, got photography conducted and seized objects items from the spot. The dead boy was shifted to the hospital and a postmortem was conducted there. Clothes of the deceased were seized in evidence.
(iii) The dead body was identified as that of Harbans Lal S/o. Sardari Lai, R/o. Kana Chargal Morha Mela, Tehsil Jammu and handed over to the relatives of the deceased against receipt.
(iv) The samples of viscera of the deceased were obtained and sent to the Forensic Science Laboratory, Jammu. Statements of the witnesses were recorded under Section 175 of the Cr.P.C.
(v) Pursuant to the order No. Rdr/SPCS/8730-33 dated 7th of October, 2008, of the SP City South, the inquest was conducted by Sh. Sandeep Kumar Mehta, the then SDPO, City East, who recorded revised statements of witnesses under Section 175 of the Cr.P.C.
(vi) The postmortem report was obtained from the doctor, wherein it was opined that the death in the case was due to asphyxia as a result of strangulation.
(vii) On receipt of this opinion of the cause of death, the SDPO raised a query dated 18th of May, 2010 upon the department of Forensic Medicine Government Medical College, Jammu as to;
(a) Whether the death in the case was homicidal or suicidal.
(b) Since no struggle marks or external injuries were seen anywhere on the body, whether the death could be due to hanging.
(viii) These queries were responded to on 22nd of May, 2010 by Dr. L.D. Bhagat, Medical Officer (who stood transferred from Government Medical College, Jammu to the SDH, Bhadarwah as BMO), stating that so far as the first query was concerned, the decision as to whether the death was homicidal or suicidal was required to be taken by the investigating officer premised on his investigation. The Doctor observed that in most cases of strangulation, the death is homicidal or otherwise. In response to the second query, Doctor observed that struggle marks may not always be present if the victim is asleep or slightly under any sedative. It was also stated that the injury noted on page 2 of the postmortem report could not be due to hanging.
(ix) In view of the above that the SDPO had observed that in view of the above, the deceased had not died due to hanging, but someone had killed him and then hung him with a rope in an under construction shop, observing that prima facie the death of the deceased was due to strangulation committed by somebody else. A direction was issued by SDPO City East Jammu vide order dated 3rd of June, 2010 to register a case under appropriate section of law.
(x) In view of above directions of the SDPO, a case being FIR No. 77/2018 was registered at Police Station, Gianni Himmat for the commission of an offence under Section 302 RPC and investigation commenced thereupon.
(xi) During investigation, the investigating officer contacted two persons Rekha Devi and Raj Devi, two cousins, on the basis of call details found on telephone of the deceased, who were also examined as prosecution witnesses. These two witnesses disclosed that Vijay Kumar happened to be the brother-in-law (jija) of the deceased Harbans Lai; that Vijay Kumar used to come to their house and was adamant to kill Harbans Lai. Vijay Kumar used to beat his wife and she had returned to their parents. It was also disclosed that when Vijay Kumar came to take his wife back, there was a quarrel between the deceased Harbans Lal and Vijay Kumar, when Harbans Lal slapped him. At this, Vijay Kumar had threatened to kill Harbans Lal and also threatened these two ladies.
(xii) As per these ladies, Vijay Kumar threatened the deceased to kill him and even threatened the ladies after the cremation of the deceased that if they did not maintain silence they would also meet the same fate.
(xiii) On the basis of this disclosure, the investigating officer apprehended Vijay Kumar who allegedly confessed to the commission of murder of the deceased for the reason that he wanted to avenge the insult and humiliation caused to him as the deceased slapped him. Again premised on the disclosure of the accused of Vijay Kumar, the investigating officer recorded the statements of Omkar Chand and Dharampal as two eye witnesses. The statements of these two witnesses were also got recorded under Section 164-A of Cr.P.C.
2. On completion of the investigation, the charge sheet came to be filed wherein it was stated that Vijay Kumar would often beat his wife who was the sister of the deceased Harbans Lal and Vijay Kumar resented Harbans Lai's intervention, asking him to refrain from doing so. For this reason, Vijay Kumar had threatened the deceased many times to kill him and finally in the evening of 8th of February, 2008 when he got opportunity, he along with Sukhdev Raj @ Kala-the other accused, killed him at Chowadi Morh by strangulation and thereafter to conceal the crime and to create appearance of the deceased having committed suicide, hung the dead body of the deceased from the iron rod in the roof of the shop No. 197, which was under construction at Sainik Colony.
3. After hearing the parties on the question of charge, the learned Trial Judge framed charges for the commission of offences under Sections 302/34 RPC. The respondents pleaded not guilty to the charges and claimed trial.
4. The learned Trial Judge put the incriminating circumstances to the accused persons under Section 342 of the Cr.P.C. The accused persons denied the correctness of the same.
5. After a detailed consideration of the entire evidence lead by the prosecution, by a detailed judgment dated 7th of April, 2018, the learned Trial Judge held that the persons examined as eye witnesses to support the prosecution were unreliable and could not be believed. It was held that the prosecution had failed to establish the case against the accused persons beyond reasonable doubt and by the impugned judgment dated 7th of April, 2018, the learned Second Additional Sessions Judge, Jammu acquitted the respondents of the charges for which they had stood trial.
6. Mr. Amit Gupta, learned AAG appearing for the appellant has stated that that the prosecution had placed sufficient material on record to support the charges and that the learned Trial Judge had not appreciated the evidence laid on record nor had correctly applied the law, resulting in the acquittal. It has been contended before us that the learned trial judge had taken a hyper-technical approach and that the conclusions drawn were against the weight of evidence placed on record.
7. On the other hand, Mr. Mohsin Bhat, learned counsel appearing for the respondents has supported the judgment, contending that the prosecution had brought a false case against the respondents and that there was no material at all to support the culpability of the respondents in the commission of offence.
8. Mr. Mohsin Bhat has placed the judicial pronouncements reported at MANU/SC/1243/2001 : 2002 (9) SCC 431, Lalloo vs. State of Uttar Pradesh; MANU/SC/0189/1976 : 1976 AIR (SC) 2488, State of Orissa vs. Brahmananda Nanda; MANU/SC/0594/1986 : 1986 AIR (SC) 593, Palanisamy and others vs. State of Tamil Nadu; MANU/SC/0103/2003 : 2003 (3) SCC 153, State of Punjab vs. Sucha and MANU/SC/0030/1995 : 1995 AIR (SC) 135, Jagga Singh vs. State of Punjab.
9. Mr. Mohsin Bhat has placed reliance on pronouncement of the Supreme Court in MANU/SC/0189/1976 : AIR 1976 (SC) 2488, State of Orissa v. Brahmananda Nanda wherein the evidence of a witness who had delayed disclosure of the names of the accused by one and half day was rejected as untrustworthy.
10. Mr. Bhat has also placed reliance on the pronouncement of the Supreme Court reported at MANU/SC/0030/1995 : 1995 (SC) 135 Jagga Singh v. State of Punjab, wherein an improvement regarding the dying declaration in the Court which was not stated before the police was rejected.
11. We have been carefully taken through the entire record of the case and have given our considered thought to the submissions made by both sides. The prosecution has placed a case of direct evidence and examined two witnesses Omkar Chand (PW-1) and Dharam Pal (PW-2) as eye witnesses. These witnesses had claimed that the two of them along with the deceased Harbans Lai, have used to work in a shop at City Chowk and that on 8th of February, 2008 in the evening of 8th of February, 2008, they had together left on a scooter for Purmandal Morh from the City Chowk, Jammu, for the reason that the deceased had requested them to drop him there as his brother-in-law Vijay Kumar had called him. These two witnesses thereafter given an even stranger account. The witnesses stated that the deceased Harbans Lal joined his brother-in-law in a white Van No. 2080/JKO2G. As per the witnesses, Vijay Kumar had requested them to accompany and follow them on their scooter. According to these two witnesses, the accused drove the vehicle from Sainik Colony towards Chowadi road, stopped at an open place, started quarrelling with the deceased outside the Van in which they tried to intervene, but did not succeed. As per these witnesses, Vijay Kumar gave a blow of something or a kick, due to which the deceased fell down, where after Sukhdev brought out two ropes from the vehicle and they tied the hands of the deceased, put the other rope around his neck and pulled the same, threatening the two witnesses, if they disclosed the occurrence to anybody, they would face the same consequences which the deceased has faced. Thereafter, the accused put the deceased in the vehicle, while these two witnesses ran away. It was claimed that the accused drove the vehicle towards Sainik Colony, stopped outside at a shop there, brought out the deceased and hung him from iron rod (saria) in the said shop.
12. We may note the incisive analysis conducted by the learned Trial Judge of the inquest proceedings and the statements given by the various witnesses as recorded by the Inquiry Officer. The learned Trial Judge has also discussed the discrepancies and material contradictions in the evidence led by the prosecution rendering the same as unworthy of credence.
13. The learned Trial Judge has found the excuse of fear on account of threat from the accused persons as unacceptable in view of the contradictory conduct of the two witnesses. These two witnesses have claimed that despite the threats, despite the first act of strangulation as alleged, despite their fear, these two witnesses still followed the accused persons to the spot wherefrom the deceased was hung. Such conduct has been found to be unbelievable.
14. The witnesses clearly admitted that this occurrence took place on 8th of February, 2008. These witnesses made no effective effort to protect the deceased even though they were related to him. It was in the testimony of the two witnesses that there were residential houses around the shop where the deceased was hung, yet they did not make any hue and cry for help and quietly drove on to their own house. In order to explain their conduct of this silence, they claimed that this was out of fear from the accused persons. The witnesses did not disclose the occurrence to any person on the next day or when the deceased was cremated. The learned Trial Judge has found that the distance between their village and that of the accused Vijay Kumar was between 20 - 22 kms removing element of fear and that these two related witnesses maintained silence for a long period of 2 1/2 years.
15. It has come in evidence that to reach the shop from the place of strangulation, they had to cross an army gate, and several busy areas. At this point, the two witnesses who admittedly were not under any physical control of the accused but for independently riding their scooter, made no effort to inform any person. These witnesses do not have admittedly stated that the accused persons were not in possession of weapons at all. This conduct in remaining silent has been considered as most unnatural.
16. We find that in the instant case, the silence of these two eye witnesses was not for a short period but for a long period from 8th of February, 2008 when the occurrence took place till 24th of June, 2010 and 25th of June, 2010 when the evidence of Omkar Chand and Dharampal was recorded under Section 164-A Cr.P.C. i.e. for a period of more than two years and three months. Such a delay may be expected as reasonable if there is a plausible explanation for the same. In the instant case, apart from a bald claim of threats from the accused persons and fear for their lives, there is no material to support the same. The trial court has noted that the witnesses had categorically stated that accused was not possessing any weapon at the time of occurrence. The learned Trial Court has also noted the distance between the residences of the accused persons from that of the witnesses observing that the accused could not have been in constant contact of the witnesses and that the distance itself would have dissipated any threat or fear.
17. It has also been observed that the witnesses were working at places which were located far away from the location of the accused persons. Keeping in view the closeness of the relationship of these witnesses with the deceased, the learned Trial Judge has refused to accept the explanation of fear because of the threat from the accused persons. We see no reason to all to take a contrary view.
18. We also find from the record and the case diary that PW-Karan Chalotra has stated that the statement of Omkar Chand was recorded by the police under Section 175 of the Cr.P.C. on 19th of February, 2008 i.e. barely 10-11 days after the occurrence in which he did not give any evidence of having witnessed the occurrence. On the contrary, he merely informed the police that on 8th of February, 2008, the accused had left for his house at 6 pm from the place of his work.
19. The learned trial judge has placed reliance on the pronouncements reported at MANU/SC/0594/1986 : AIR 1986 SC 593, Palanisamy vs. State of Tamil Nadu, MANU/SC/0189/1976 : AIR 1976 SC 2488, State Of Orissa v. Mr. Brahmananda Nanda and the judgment of this Court reported at SLJ 2005 (1) 138 State of J&K v. Thangi and concluded that the evidence lead by the prosecution suffers from a serious infirmity in that the eye witnesses had kept silence for a period of over two years three months and had not spoken out when the police had examined them, barely 10-11 days after the occurrence, would be a reason enough to discredit and disbelieve the evidence of the eye witnesses.
20. We find that even though in a case of direct evidence as the present where the prosecution was placing reliance on the testimony of the eye witnesses, the learned Trial Judge has rightly observed that aspect of motive for the crime becomes irrelevant, however, the learned Trial Judge has dwelt on the evidence lead by the prosecution to establish the motive for the occurrence. On this aspect, the learned Trial Judge found the testimony of these two related witnesses Rekha Devi and Raj Devi suspect. The learned Trial Judge has noted that the statement of Sardari Lai, father of the deceased was recorded under Section 175 of the Cr.P.C. on 9th of February, 2008 and 13th of February, 2008 soon after the incident wherein he categorically stated that he did not suspect the involvement of anybody. The other witnesses namely Kaka Ram, Gopal and Madan Lal whose statement was recorded on 13th of February, 2008 also made no mention of either of the earlier incident regarding the slapping or suspicion about the involvement of the accused persons.
21. The conclusions of the learned Trial Judge are premised on a consideration of judicial precedents reported at MANU/SC/0103/2003 : 2003 (3) SCC 153, State of Punjab vs. Sucha Singh, MANU/SC/1243/2001 : 2002 (9) SCC 431, Lalloo vs. State of Uttar Pradesh and the judgment of this Court reported at 1996 SLJ 264, Darshana Kumar vs. State.
22. Another circumstance which has been found unnatural and completely unacceptable is the evidence of PW Nos. 1 and 2 that after they met the accused persons at Purmandal Morh and dropped the deceased, the accused persons asked them to accompany them. The learned Trial Judge has found it improbable that any person who is going to commit the offence of murder would inform two persons to be eye witnesses to the commission of offence.
23. The conclusions of the learned Trial Judge are based on an in depth analysis of the entire evidence lead by the prosecution and application of judicial principles.
24. It is well settled that a judgment of acquittal is not to be lightly disturbed.
25. In the pronouncement of Supreme Court reported at MANU/SC/0224/2004 : (2004) 13 SCC 134; Ram Swaroop and others Vs. State of Rajasthan, the Supreme Court observed thus:-
"25........................................................................................................................................It is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly it is well settled that if the view taken by the trial court while acquitting the accused is a possible, reasonable view of the evidence on record, the High Court ought not to interfere with such an order of acquittal merely because it is possible to take the contrary view. It is not as if the power of the High Court in any way is curtailed in appreciating the evidence on record in an appeal against acquittal, but having done so, the High Court ought not to interfere with an order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse."
(Emphasis supplied)
26. The above principle was reiterated in MANU/SC/0595/2003 : (2003) 8 SCC 180; State of Rajasthan Vs. Raja Ram, the Supreme Court has held as follows:-
"11. The decision taken by this Court in the aforementioned case, has been further reiterated in State of Rajasthan v. Raja Ram, MANU/SC/0595/2003 : (2003) 8 SCC 180, wherein this Court observed thus:
"Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference."
(Emphasis supplied)
27. Again in MANU/SC/0627/2009 : (2009) 12 SCC 629; Vijay Kumar Vs. State by Inspector of Police, Madras and another, the Supreme Court summed up the legal position as follows:-
"12. The principles which have been set out in innumerable cases have been reiterated as under:-
(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers, it possesses while hearing an appeal against an order of conviction.
(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(3) Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reason for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.
(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused."
28. It is thus well settled law that, this court, while hearing an acquittal appeal can re-appreciate the evidence. However, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. (Ref: Ram Swaroop and Ors. v. State of Rajasthan, MANU/SC/0224/2004 : (2004) 13 SCC 134; Upendra Pradhan v. State of Orissa, MANU/SC/0501/2015 : (2015) 11 SCC 124 and State of Rajasthan v. Raja Ram, MANU/SC/0595/2003 : (2003) 8 SCC 180.) The present challenge has to be examined on these principles and parameters.
29. In this background, on a consideration of the entirety of the record, it cannot be said that the prosecution was able to connect the two persons with the commission of the offences by leading unimpeachable evidence or that the view taken by the trial court was not based on the evidence led by the prosecution. We have found that on the contrary, the findings of the trial court are premised on a close consideration of the evidence placed on record. It cannot be held that the findings are either erroneous or perverse.
30. In view of the above, we find no merit in this appeal, which is hereby dismissed.
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