Decided on February 18,1993

RAM LAL Appellant
STATE Respondents


MIR, J. - (1.)Convicted under S. 302, RPC and sentenced to imprisonment for life, with a fine of Rs. 500.00 in default of payment of which he will undergo three months further simple imprisonment, appellant-accused has preferred the present criminal appeal against the judgment of Sessions Judge Kathua dated 12-7-1990. The main grounds on which the present appeal is filed are as under :- (i) That the impugned judgment/ order is perverse because the evidence has been misappreciated. (ii) That the prosecution witnesses happen to be close relatives of the deceased and the Trial Court while believing their statements has committed an error of law; (iii) That even if the prosecution version would be believed it was a case of 'mistake' and conviction under S. 302 RPC was not warranted. Brief facts of the prosecution case : Deceased, Karan Singh, a young student who use to sleep in his father's shop for keeping a watch and ward during night, left his house at 10.30 p.m. on 15/07/1986 for the shop which stood at some distance. He was shot at between 10.30 and 11 p.m. prosecution witnesses, including the father and mother of the deceased, on hearing a gun shot immediately came out to find out as to what had happened. On reaching near the house of the appellant they found some one gasping for breath. Drawing close to him they saw that the deceased Karan Singh was lying wounded and unconscious. When they started crying, the accused with his father came out of their house and fell on the feet of Sham Dai, mother of the deceased, stating that mistake had been committed by him. He had killed him. The deceased was then straightway carried to Billawar Hospital which fell at a distance of 2 to 3 K. Ms. He expired at 12.30 mid-night. Soonafter the death of the deceased, F.I.R. was registered at 12.50 p.m. and statemets of the witnesses recorded. This FIR was received by the Judicial Magistrate Billawar on the same day at 10 a.m. sharp. Police completed investigation, recovered the gun and produced challan before the trial Court, on pleading not guilty appellant was tried.Prosecution has produced 14 witnesses, including Hari Chand Isher Singh, Kesar Singh, Mst. Sham Dai and Ram Dhan. Towards the conclusion of the prosecution evidence, statement of the accused in term of S. 342, Cr. P.C. was recorded. He has evasively denied every question which was put to him in respect of the evidence that had come against him. He has however, admitted that he and his father went to the spot where the deceased was lying where Hari Chand PW had asked them that somebody had killed his son. He has in this statement refused to produce any evidence in defence. The Sessions Judge on the anvil of evidence before him has convicted the accused and awarded life imprisonment with a fine of Rs. 500/ - in terms of S. 302, R.P.C.
(2.)The main features of the prosecution case which shall be elaborated subsequently, can be outlined as under : (A) Extra-judicial confession; (B) Accused immediately after the firing of the gun, having been seen by the prosecution witnesses going back to his house along with the gun; (C) Disclosure and discovery of gun; (D) Medical evidence; (E) Motive. A-Extra-judicial confession : As soon as the deceased left his house his parents heard sound of gun shots from the side through which pathway to their shop leads. Feeling perturbed they lost no time in going out to locate as to what was the matter. When they found their son unconscious in a pool of blood they started raising hue and cry. Appellant is said to have fallen upon the feet of Mst. Sham Dai mother of the deceased, whereafter he had confessed that the deceased was killed by him. This has been unequivocally stated by prosecution witnesses Sham Dai and Hari Chand parents of the deceased. Kesri Singh and Isher Singh P.Ws. have not only supported this version but despite lengthy cross-examination they have stuck to the version that the confessional statement was made by the accused appellant in their presence. It will be pertinent to mention here that FIR which was registered only some minutes after the death of the deceased boldly finds a mention of this extra-judicial confession. The electronic speed with which the investigating agency seems to have moved in registering FIR, recording the statements of prosecution witnesses and submitting the challan to the Magistrate leaves no room for apprehension that the story of extra-judicial confession was introduced by way of manoeuvring or padding. B-Accused seen with gun : After the extra-juducial confession the second most important cicumstance against the appellant is that immediately after firing he was seen going towards his house along with a gun. This has been stated by P.W. Isher Singh, who has categorically stated that as soon as he heard the gun shots from the side where house of the appellant was situate, he cried that he had heard a gun shot and himself left towards the house of the appellant with a torch. According to him it was at that time that he saw the accused appellant going towards his house when he was at a distance of 20/ 25 feet. He immediately had informed Kesri Singh and Hari Chand PWs that he had seen the accused with a gun. Both these witnesses have also testified that they had received this information from the said witness. C--Disclosure and discovery of gun : Pursuant to the disclosure statement made vide EXPWRD a country made No. 3030/ 1982-MFG, single barrel was recovered from a corner of his residential room hidden behind a steel trunk. The gun had been sealed and sent for Balistic expert's opinion. That at opinion in terms of EXPWHC certifies that the gun was found to be in normal working condition and the same had been fired through, prior to its receipt in the laboratory. In his statement under S. 342, Cr.P.C. accused-appellant has denied this recovery and on the other hand stated that this gunbelongs to his father whereas, according to him, he was putting up separately from his father, Mr. Goni in his argument has admitted that the gun is a licenced gun and he could not deny the ownership of this gun. D-Medical evidence. The medical evidence in this case has established that the deceased had prior to his death sustained injuries found on the dead body. The medical expert has been unequivocal in his opinion that the death of the deceased occurred due to cardiac respiratory failure resulting from gun fire primarily by injury Nos. 1 and 2. According to this witness the duration of these injuries also has been fixed well within a span of 24 hours. E-Motive In this case of pure circumstantial evidence existence of motive assumes importance. Here the prosecution has shown that the deceased used to make advances with the sister of the appellant namely, Mst. Kamlesh, which was not liked by him. This had ignited a fire of hatred and animosity against the deceased in the mind of the appellant. Prosecution evidence smacks of this observation having been made by the accused-appellant on this score before some witnesses. A close scrutiny of the site plan EXPWMT/4 reveals that the house of the appellant is situated quite adjacent to the pathway through which deceased is said to have passed on the fateful day of occurrence. The houses of the complainant and Isher Singh PWs are on the nothern side of the spot of occurrence. These two houses are adjacent to each other. Kamla tree which is said to have received some pellets out of the gun shot is quite at the head of pathway. An over all examination of this site plan, which is a duly proved document, corroborates version of prosecution witnesses.
(3.)We will have to marshal the points raised by the defence counsel in the arguments and the grounds taken in the memo of appeal in the backdrop of the above detailed circumstances. But before we do that we want to place one more important aspect of the case on record. Accused-appellant has not led any defence leaving whole prosecution evidence unrebutted. It is cardinal principle of law that a person who is facing trial has not only to rebut what has come against him in the evidence but he has also to probabilise a different version which favours him. The cross examination, no doubt is a weapon in the armoury of a defence counsel to shatter the credibility of a witness but apart from doing that defence has one more advantage of leading evidence in rebuttal. Once neither of the weapons is used, prosecution evidence remains as it is and the Court has no power to brush the same aside. Judicial findings on this point are clear that the statement of a witness on a particular point, if not challenged by way of cross-examination shall be taken to have been proved. When an accused declines to avail himself of the opportunity of shaking the prosecution evidence or giving out essential and material particulars of its case in defence or extract the same by way of cross examination it must follow that it did not dispute the testimony given by the prosecution witnesses who have deposed against the accused. As a result of this concept of law we have no hesitation in believing that part of the evidence which has all along remained unrebutted.

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