Jammu & Kashmir High Court
Raj Kumari vs State Of J&K on 27 September, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. .
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRA No. 11/2018 c/w Reserved on: 27.08.2024
CONF No. 10/2016 Pronounced on: 27.09.2024
Raj Kumari .....Appellant
Through :- Mrs. Deepika Mahajan, Advocate with
Mr. Atharv Mahajan, Advocate.
v/s
State of J&K .....Respondent
Through :- Mr. Ravinder Gupta, AAG.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
Rajesh Sekhri-J
01. This appeal has been directed against the judgment and order dated
20.04.2016, propounded by learned Principal Sessions Judge, Kathua (fort short,
“the trial court”) in file No. 28/Challan titled “State vs. Raj Kumari”, vide
which, appellant came to be convicted for offence under Section 302 of Ranbir
Panel Code, 1989, [“RPC”], and sentenced to undergo rigorous imprisonment
for life and pay fine of Rs. 10,000/- and in case of default in the payment of
fine, to further undergo rigorous imprisonment for three months.
02. The appellant has assailed the impugned judgment of conviction and
order of sentence on multiple grounds, however, before the grounds urged in the
memo of appeal are adverted to, it shall be apt to have a bird‟s eye view of the
background facts of the case.
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03. The prosecution story, as unfurled from the charge sheet, is that on
24.10.2012, PW Jaswant Singh lodged an oral report in Police Station, Kathua,
alleging inter alia that during the intervening night of 23 rd/24th of October 2012,
while his aunt namely, Soma Devi, who was residing in ward no. 10, Kathua
was asleep, some unknown persons trespassed into her house, killed her and was
robbed of her gold ear rings. It was reported that dead body of the deceased was
lying on the bed in her room. On the receipt of this report, the police agency
swung into action, FIR No. 431/2012, came to be registered and investigation
came into vogue. During investigation, the investigating agency, besides other
legal formalities, lifted finger prints from the room of the deceased, seized blood
stained articles and one brick lying in the veranda of the house. The
investigating officer recorded statements of witnesses in terms of Sections 161
CrPC and 164 CrPC.
04. It surfaced during investigation that marriage of the daughter of appellant,
was slated for 27.10.2012. About 15-20 days prior to the occurrence, appellant
came to the house of PW Kamlesh Kumari to invite her on the wedding of her
daughter. The appellant met the deceased in her house, where PW Kamlesh
Kumari used to work as a domestic help. The appellant on seeing the deceased
wearing gold ear rings and finger rings, thought to steal them. Accordingly, on
23.10.2012, the appellant along with her son came to the house of PW Kamlesh
Kumari at about 3.00/3.30 PM and in the evening met the deceased in her
house. The appellant after survey of the house of the deceased, returned to the
house of PW Kamlesh Kumari and during the intervening night, when all were
asleep, the appellant went to the house of the deceased Soma Devi, who opened
the door and allowed her to sleep with her on the bed. It is alleged that when
deceased fell asleep, the appellant assaulted the deceased on her head with a
3 CRA No. 11/2018
brick and robbed the aforesaid ornaments. It is also alleged that appellant also
made an abortive attempt to break open the lock of the room to steal other
articles and returned to the house of PW Kamlesh Kumari via the roof of the
house. It also surfaced that subsequently, the appellant handed over the stolen
ornaments to PW Anil Kumar, a goldsmith, for preparation of ornaments for her
daughter and during investigation, said gold ornaments came to be recovered by
the investigating agency from the goldsmith, PW Anil Kumar, pursuant to the
disclosure statement made by the appellant. From the foregoing material, the
investigating agency came to the conclusion that the deceased after being done
to death was robbed of her gold ornaments by the appellant and filed charge-
sheet against her under Sections 302/392 RPC.
05. The appellant was charged by the trial court for the aforesaid offences,
whereby she pleaded not guilty and claimed trial, prompting the trial court to
ask for the prosecution evidence and prosecution has examined 16 witnesses to
establish the charge.
06. A brief resume of the prosecution evidence is as below:-
07. PW 1 Jaswant Singh is the complainant.
He has deposed that on 24.10.2012 at about 8.30 AM, he heard noise in
the street, where his deceased aunt was residing. He went there and found dead
body of his aunt lying on a cot. He lodged report with the police. The police
came to the spot and besides other formalities, lifted fingerprints from the spot.
A brick bearing mark MBK, used in breaking open of the lock, came to be
seized by the police. The said brick was found broken on its edge. A bolt, brick,
pieces of brick, bed sheet and a towel were seized by the police and the sealed
packets were respectively given the marks A, B and D. He signed a document
with respect to brick, pieces of brick and a bolt and PW Karnail Singh also
4 CRA No. 11/2018
signed the said documents. He has admitted the FIR Ext-P1/1, lodged by him,
the seizure memo of dead body Ext-P1/1, seizure memo of clothes Ext-P1/2,
seizure memo with respect to clothes of the deceased Ext-P1/3, seizure memo of
brick Ext-P1/4, supurdnama of ring Ext-P1/5 and receipt of dead body Ext-P1/6.
In cross-examination, he has stated that when he reached the spot, door of the
room was open but there was nobody inside the room where dead body was
lying. He went to the police station and lodged an oral report. The injury on the
head of the deceased was visible and deceased was bleeding from ears and nose.
Ear rings of the deceased had been taken away. The brick was broken on its
edge. On 23.10.2012, he had not seen the accused in the vicinity around the
house of the deceased.
08. PW 2 Karnail Singh, has stated that deceased was his aunt who used to
reside all alone in her house because his uncle had already expired. His cousin
PW Kamlesh Rani used to look after his aunt. On 24.10.2012 at about 8.30 AM,
PW Kamlesh Rani saw dead body of the deceased lying on the bed. She raised
alarm and the neighbourers assembled on the spot. He also went there and saw
the dead body. PW Jaswant Singh came there and went to the police station to
lodge the report. Police came to the spot and besides other formalities, lifted the
fingerprints, recovered the brick, bolt, pieces of brick, bed sheet and a pillow.
His statement was recorded by the police in the hospital. The ring was handed
over to PW Jaswant Singh. He has admitted the seizure memo of dead body
Ext-P1/1, seizure memo of clothes Ext-P1/2, seizure memo with respect to
clothes of the deceased Ext-P1/3, seizure memo of brick Ext-P1/4, supurdnama
of ring Ext-P1/5 and receipt of dead body Ext-P1/6. In cross-examination, he
has stated that he does not know as to who killed the deceased.
5 CRA No. 11/2018
09. PW 3 Surinder Singh, has stated that on 24.10.2012, he received
telephonic information from PW Kamlesh Devi about the murder of his mother-
in-law. He reached Kathua at about 10.00 AM and saw dead body of the
deceased lying on a bed. The police seized a pillow, a towel, blood stained bed
sheet and a brick. A ring was handed over to PW Jaswant Singh. The witness
goes on to state that on 28.10.2012, when he went to Police Station, Kathua to
enquire about the case and while they were sitting in the room of the SHO, the
accused admitted that she had given two ear rings and two other rings to a
goldsmith, namely, Anil Kumar, and she could get them recovered. A document
in this respect was prepared and accused put her impression over the same. He
and his wife signed the said document. Thereafter, accused was taken by the
police to the shop of the goldsmith, PW Anil Kumar. He and his wife
accompanied the police. The goldsmith produced stolen ornaments from his
locker to the police which were identified by his wife, because she got them
prepared for her deceased mother and ornaments belonged to the deceased. He
is sure that his mother-in-law was killed by the accused. He has admitted memo
of receipt of dead body Ext-P1/6, memo of disclosure Ext-P4 and memo of
recovery Ext-P4/1. In cross-examination, he has stated that when he went to the
spot, he saw that blood was coming out from the right ear and nose of the dead
body. The deceased had received injury on the right side of her head. He did not
see whether blood was coming out from the site of the injury or not. He did not
count the number of injuries. He had seen the ear rings and other rings with the
deceased. Besides him, his wife and police officials, employees of goldsmith
were present in his shop.
10. PW 4 Mamta Rani is daughter of the deceased.
6 CRA No. 11/2018
She has deposed that on 24.10.2012, she received a telephonic call from
her cousin sister PW Kamlesh Kumari that her mother is lying dead in her
house. She rushed from Jammu and reached Kathua at about 10.00 AM. People
had assembled in her house and police was also present there. She saw that there
was bleeding from the nose of her mother. She noticed that ear rings and finger
rings of the deceased were missing. No other article was found missing from the
house. The dead body was taken away by the police for post-mortem and later it
was cremated. In the evening, she enquired from PW Kamlesh Kumari, who
told her that appellant, who happens to be her aunt, along with her son had come
there. The appellant expressed her desire to meet the deceased. PW Kamlesh
intended to take the appellant through the gate of the house, to which the
appellant objected and she desired to go to the house of the deceased through
the common roof between the houses of PW Kamlesh Kumari and that of the
deceased. She was also told by PW Kamlesh Kumari that after about 10
minutes, she was called by her husband and while she returned to provide meals
to her husband, the appellant stayed back in the house of the deceased. When
PW Kamlesh was again going to the house of the deceased, she saw the
appellant coming back to the house of PW Kamlesh through stairs and on being
enquired by PW Kamlesh, the appellant replied that she was feeling sleepy.
Thereafter, the accused went to sleep. She was further informed by PW
Kamlesh that at about 3.30 AM, she woke up and found the appellant missing
from her bed. PW Kamlesh saw the appellant getting down through the stairs
and she was frightened. When PW Kamlesh enquired about the reasons, the
appellant told her that she was feeling frightened. On being enquired by PW
Kamlesh, the appellant revealed that she had gone to the roof. The witness goes
on to state that while the appellant was in the house of PW Kamlesh, she was
7 CRA No. 11/2018
feeling frightened and could not stay there. At about 4.00 AM, the appellant
woke her son up and both of them left. The witness has further stated that on
25th, she went to the police station, where her statement was recorded. On 28th,
she again went to the police station, where she saw that appellant was being
questioned by SHO. At first, the accused did not make any confession, but later
she confessed her guilt. The appellant in the police station narrated that when
the deceased was asleep, she gave a blow of brick upon her head, stole her ear
rings and finger rings and the said ornaments were handed over by her to
goldsmith PW Anil Kumar of Govindsar. The document, in this respect, was
prepared by the police. Thereafter, the appellant was taken to the said goldsmith.
The goldsmith produced ear rings and finger rings from an almirah. The
document was prepared in this respect. She has admitted the memos of
disclosure and recovery, Ext-P4 and Ext-P4/1 respectively. In cross-
examination, she has stated that on right side of the room, there was a lock and
an unsuccessful attempt had been made to break open the said lock. She found a
brick lying near the door. PW Kamlesh did not work as a domestic help, but
used to look after the deceased because she is her cousin sister. There is no
mention in her statement under Section 161 CrPC that PW Kamlesh Kumari
intended to take appellant to the house of the deceased through the gate of the
house. Her husband-Surinder Singh was along with her when she went to the
Police Station on 28th. The appellant while making the confession had also
disclosed that before stealing the ornaments, she had confirmed that deceased
had died. The witness has stated that the memos of disclosure and recovery were
prepared in the police station, after the police returned from the place of
recovery and they signed the said documents after returning from the shop of the
goldsmith. At the time of recovery, besides herself, her husband, the police
8 CRA No. 11/2018
officials and the goldsmith, employees of the goldsmith were present. She has
admitted that PW Kamlesh had not seen the appellant killing the deceased.
11. PW 5 Anil Kumar, is the goldsmith, from whom the ornaments alleged
to have been stolen by the appellant, came to be recovered by the investigating
agency.
He has deposed that he runs a shop of goldsmith at Govindsar. The
appellant had placed an order to prepare ornaments in connection with the
marriage of her daughter. On 20.10.2012, appellant came to him and purchased
some articles of silver etc. On 24.10.1012, appellant again came to his shop at
about 4.00/4.30 PM. The appellant gave him a pair of gold ear rings and two
finger rings, weighing 11 grams 860 miligrams and asked him to prepare
ornaments. Prior to this, the appellant had purchased ornaments from him in
connection with 2/3 weddings. On 28th, he read in the newspaper that a murder
had taken place in Kathua. After some time, his cousin Arjun Singh came to him
and told that people were saying that said murder had been committed by one
Raj Kumari, the accused. Thereafter, he called his uncle Avtar Singh and told
him that appellant had given him some ornaments. His uncle made a telephonic
call to the police station and police came to his shop along with PWs Mamta
Rani and Surinder Singh. The appellant Raj Kumari was also with the police.
He handed over the aforesaid ornaments to the police, those were identified by
PW Mamta Rani. He has admitted the memo Ext-P4/1 and also identified the
gold ornaments in the Court. He also made his statement under Section 164
CrPC. In cross-examination, he has stated that appellant was known to him for
the last about 10 to 11 years. The husband of the appellant, who was a retired
army personnel and a farmer, is also known to him. One of the sons of the
appellant is also in army. The appellant had purchased gold ornaments from him
9 CRA No. 11/2018
in connection with the marriage of her 3-4 children and she never deceived him.
He had prepared the ornaments for the wedding of the daughter of the appellant
which was solemnized on 27.10.2012 and he received the payment. After the
ornaments were prepared, the appellant along with her husband and daughter-in-
law, came to him. It was not written in the newspaper as to who had committed
the murder. On 28.10.2012, police came to him on receipt of telephonic call.
PW Mamta Rani, daughter of the deceased was not known to him. His statement
was recorded by SHO Chanchal Singh in the police station in the presence of
Dy.SP. He handed over the ear rings and finger rings to the police on
28.10.2012, when police came to his shop at about 2.00/2.30 PM. At that time
he did not know that those ornaments were stolen, but he handed over the
ornaments to the police out of fear. Appellant Raj Kumari owes him a sum of
Rs. 41,500/- and he was asked by the appellant to adjust the outstanding amount
against the aforesaid ear rings and finger rings. After handing over the
ornaments, he went to the police station and signed the document there. He got
his statement recorded in the court at the instance of the police.
12. PW 6 Jatinder Mishra, Tehsildar Kathua, has stated that on
19.11.2012, police officials of police station, Kathua produced six sealed
packets marked A, B, C, E, F and Q for resealing. He resealed those packets and
issued the authority letter Ext-P6 in favour of FSL Jammu. In cross-
examination, he has stated that the certificate Ext-P6 had already been prepared
by the police officials. One of the stamps on the certificate bears his signatures,
whereas the other stamps do not bear his signatures.
13. PW 7 Dr. Vasna Devi, has deposed that autopsy on the dead body of the
deceased was conducted by Board of Doctors of which she was a member. In
the opinion of the Board, the deceased died due to the injuries on vital organ i.e.
10 CRA No. 11/2018
brain leading to cardiopulmonary arrest. She has admitted the post-mortem
report Ext-P8. She has also admitted the certificate Ext-P7 regarding the alleged
weapon of offence, brick (Mark-A). The witness has stated that the injuries
mentioned in the post-mortem report of the deceased could be caused by such
brick. In cross-examination, she has stated that so far as external injuries are
concerned, there were only bruises on the scalp of the deceased. However,
internally, the deceased had a fracture in paritotemporal bones on left side of the
head and brain membranes were torn and congested. The brain substance of the
deceased was ecchymosed and edematous. Neither the dimensions of the
internal injuries nor their shape is mentioned in the post-mortem report. The
duration of the death was 12 to 14 hours of the post-mortem. It is not mentioned
in the report that a corner of the brick was broken. There were 3 to 4 external
injuries/bruises on the person of the deceased. The injuries, which led to the
death of the deceased, could be inflicted with the brick in question if force is
applied.
14. PW 8 Dr. Mohinder Lal is also one of the members of the Medical
Board, who conducted post-mortem of deceased Soma Devi, with alleged
history of assault. He has stated that during post-mortem, following external and
internal injuries were noticed on the dead body of the deceased:-
a. Bleeding from the mouth and left nostril seen;
b. Bruises over the scalp on left parito temporal region. It is bluish pink in colour.
That parito temporal bones on left side fractured. Membranes were torn and
congested. The brain substance edematous and ecchymosed with laceration seen.
He has stated that Board was of the opinion that deceased had died due to
injuries to vital organ i.e. brain leading to cardio pulmonary arrest and death due
to head injury. He has admitted the post-mortem report (Ext-P8). In cross-
examination, he has stated that post-mortem was conducted on 24.10.2012 at
about 11.30 AM and time since death is within 12-24 hours of conducting post-
11 CRA No. 11/2018
mortem. As per the time since death mentioned in the post-mortem report, the
deceased had died before 11.30 PM on 23.10.2012. He did not examine the
weapon of offence. He has not seen the weapon of offence. The dimension of
the injuries is not mentioned in the post-mortem report. It is also not mentioned
whether the injuries are regular or irregular. In this type of injury, a lot of force
is needed.
15. PW 9 Dr. Ravinder Kumar is also one of the members of Board of
Doctors, which conducted post-mortem of the deceased Soma Devi on
24.10.2012. The witness has admitted the post-mortem report Ext-P8.
16. PW 10 Arjun Singh has stated that on 25th/26th October, he read in the
newspaper that in ward no. 10 some lady had committed the murder of another
lady. He heard the rumour that a lady from Morali had committed the murder.
He narrated all these to one of his friends Anil Kumar, who is a goldsmith. Said
Anil Kumar told him that a lady from Morali had purchased ornaments from
him and the payment is due. Anil Kumar also told him that the said lady had
given him some ornaments. His father made a telephone call to the police
station, whereupon police came over there and conducted the proceedings. In
cross-examination, he has stated that it was not written in the newspaper as to
who had committed the murder. He does not know when his father made a call
to the police station, because it was not made in his presence. He cannot say
whether police came to the spot on the phone call of his father or not. The police
came to the shop of Anil Kumar at about 3.00 to 4.00 PM. He was not present
there. He does not know whether police recovered any ornaments from the shop
of Anil goldsmith or not. It is wrongly written in his statement under Section
161 CrPC that the recovery of ornaments from the shop of Anil goldsmith had
12 CRA No. 11/2018
taken place in his presence. His father too did not go to the shop of Anil
goldsmith. He had not seen the accused on the shop of Anil goldsmith.
17. PW 11 Ishfak Ahmed Bhat, has stated that in October 2012, he was
posted as Patwari Halqa Taraf. On 09.10.2012, he went to the house of deceased
Soma Devi in ward no. 10 Kathua along with police. He prepared a Dasti
Khaka, as per demarcation made by police. He also prepared copy of Khasra
Girdawari, with respect to Khasra No. 558 min of village Taraf. He has admitted
both the documents Ext-P1 and Ext-P2 prepared by him.
18. PW 12 Darshan Singh, has stated that accused is the maternal aunt of his
wife and deceased was paternal aunt of his wife. Last year, when he returned
from his duty, he saw the accused in his house. He enquired from his wife PW
Kamlesh Kumari regarding the purpose of visit of the accused and he was told
that accused was on way to the house of her brother and she would stay for one
night in their house. His wife also told him that accused wanted to meet the
deceased. Accused went to the house of the deceased and stayed there. His wife
also accompanied the deceased. He called his wife after half an hour for meals
and his wife came back. He enquired about the accused from his wife and his
wife went to call the accused. While his wife was going to call the accused, she
saw her getting down from the stairs leading to the roof. Thereafter, all of them
had meals and went to sleep. He slept in one room, whereas, accused, his wife
and his daughter slept in the other room. Son of the accused slept outside. He
woke up at about 4.30 AM and accused told him that she was leaving. He told
the accused that she will not get any transport, but accused told him she had to
go to Channgrain to get money from somebody. At about 8.00 AM, he went to
Morali. His wife went to the roof, but could not find the deceased. Thereafter,
she went to the house of the deceased and found her lying dead. His statement
13 CRA No. 11/2018
was recorded after 3-4 days. In cross-examination, he has stated that accused did
not express her desire to meet the deceased in his presence. After about an hour,
he called his wife back from the house of the deceased and one hour thereafter
accused also came back from the house of the deceased. At that time, accused
was neither frightened nor was feeling breathlessness. He went to sleep at about
9.00/10.00 PM. He woke up in the morning at about 5.00 AM and saw the
accused leaving. His wife had already woken up. At about 8.00 AM, they came
to know that the deceased had died. He does not know as to how the deceased
had died.
19. PW 13 Kamlesh Kumari, has stated that accused is her maternal aunt
and deceased was her paternal aunt. On 23.10.2012, accused came to her house
at about 3.30 PM. The roof of her house and that of house of the deceased are
adjacent to each other. She offered meals to the accused, whereafter, she
expressed her desire to meet the deceased. She accompanied the accused to the
house of the deceased through the roof. She stayed there for about 5-7 minutes
and in the meantime, she was called back by her husband. She came back and
accused stayed back with the deceased. After some time, when she was again
going to the house of the deceased, she saw the accused coming down from the
stairs. She along with her daughter and accused slept in one room. Her husband
and her son slept in other room and son of the accused slept in the Veranda. At
about 3.15 AM, she woke up and saw that accused was not present on her cot,
but her chappal was lying there. The accused was not present in the room and
could not be found there. After some time, while she was engaged in her work,
the accused came over there when she enquired from the accused as to where
she had gone, the accused replied that she had gone to sleep on the roof. At
about 4.00 AM, the accused woke up and left alone with her son. After some
14 CRA No. 11/2018
time, she went to the house of the deceased at about 8.30 AM and found the
door of the house of the deceased closed. She opened the door and found the
deceased lying dead. On coming back, she saw a brick lying in her veranda. She
telephonically informed daughter of the deceased Soma Devi and narrated the
whole story. Neighbourers assembled on the spot. She has admitted her
statement Ext-P13 under Section 164 CrPC. In cross-examination, she has stated
that she is doing the job of cleaning the utensils etc. and was doing the same job
in the house of the deceased and the deceased used to pay her. The accused
knew the deceased since long. At about 8.00 PM, accused expressed her desire
to meet the deceased. It is not mentioned in her statement under Section 164
CrPC that she had advised the accused to go to the house of the deceased
through the gate. She was called by her husband and she went back within 2-3
minutes. At about 8.00/8.15 PM, when accused was coming back from the
house of the deceased, she was not feeling frightened, but in the morning at
about 4.00/4.30 AM, she found the accused frightened and she was feeling
breathlessness. When she saw the accused at about 2.45/3.15 AM, her clothes
and hair were wet. She does not know at what time, accused went to the house
of the deceased. In the morning, when the accused was leaving along with her
son, she asked as to where she was going and the accused replied that she was
going to Channgrain to get money from somebody. However, the same does not
find mention in her statement under Section 164 CrPC. Her statement under
Section 164 CrPC was recorded after about one month of the occurrence. Police
accompanied her and she made the statement as per their version. She did not
see the occurrence with her own eyes.
20. PW 14 Mangat Ram, has clicked photographs of the dead body of the
deceased. He has stated that he went to ward no. 10, Kathua along with FSL
15 CRA No. 11/2018
team. He took photographs of the dead body of a lady and handed over the
prints to SHO. He has admitted the photographs marked A to H. In cross-
examination, he has stated that the bricks shown in the photographs marked B
were lying outside the door in the street and the brick shown in photograph
Mark-C was lying in the house of the deceased. The said brick was not lying in
the veranda of the house of PW Kamlesh Kumari. When he took the
photographs of the brick, its edges were not broken.
21. PW 15 Subash Chander, is also the photographer who has clicked the
photographs of the proceedings at the shop of the goldsmith. He has stated that
on 28.10.2012, he along with SHO and accused went to the shop of goldsmith at
Govindsar. Goldsmith produced two ear rings and finger rings to the police,
which were given by the accused to him. The said ornaments were identified
and he took photographs of the proceedings. He has admitted the photographs
Mark A to G. In cross-examination, he has stated that they reached the shop of
goldsmith at about 4.00/4.30 PM. First the police went inside the shop and
thereafter, the accused went there. He did not take any photograph regarding
identification of ornaments by the accused and there is no photograph to reflect
the entry of the accused in the shop.
22. PW 16 Chanchal Singh, is the investigating officer of the case. He has
stated that on 24.10.2012, Jaswant Singh lodged an oral report, alleging inter
alia that his aunt Soma Devi, who was residing all alone in her house at ward
no. 10, Kathua, had been killed by somebody during the intervening night of
23rd/24th October, 2012 and her two ear rings had been stolen. He visited the
place of occurrence along with team of FSL and photographer. The finger prints
were lifted and photographs were taken. He had observed that some solid object
had hit left side of the head of the deceased and deceased was bleeding
16 CRA No. 11/2018
profusely from ears and nose. The bed sheet, pillow and towel lying on the bed
of the deceased were found blood stained. He seized and sealed the said articles.
He also noticed that lock of a room near the veranda of the house was attempted
to be broken. He also found a broken brick bearing Mark-MBK on the spot,
used for breaking open the lock. A broken iron bolt was also lying on the spot.
He seized the bolt, pieces of brick and the broken brick. The dead body of the
deceased was taken into custody and was subjected to post-mortem. Clothes of
the deceased were also seized and sealed. Blood sample of the deceased was
also obtained and sealed. After the post-mortem, the dead body was handed over
to the heirs and receipt was obtained. He got the blood stained bed sheet, towel,
pillow, clothes and sample of blood resealed from the Executive Magistrate and
obtained an authority letter. He recorded statements of witnesses. He questioned
Mamta Rani, daughter of the deceased, Kamlesh Kumari, in whose house
accused had stayed during the night of occurrence. After the questioning, he
arrested the accused on the basis of suspicion and interrogated her. During
interrogation, the accused made a disclosure that after killing the deceased, she
robbed her ear rings and finger rings and kept the same with the goldsmith,
namely, Anil Kumar. He prepared the memo of disclosure and recovered the
stolen ornaments from the shop of the goldsmith. He prepared the site map of
the place of recovery and also the memo of recovery. He recorded the
statements under Section 161 CrPC and under Section 164-A CrPC. After
investigation, offences under Sections 302/392 RPC were found established
against the accused. He has admitted his signatures on the FIR (Ext-P16) drafted
by him. He has also admitted the relevant documents including the site map of
the place of occurrence (Ext-P16/1), the site map of the place of recovery (Ext-
P16/3), seizure memo of the dead body (Ext-P1/1), seizure memo of bed sheet
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(Ext-P1/2), seizure memo of clothes of the deceased (Ext-P1/3), seizure memo
of brick (Ext-P1/4), superdnama of ring (Ext-P1/5), receipt of dead body (Ext-
P1/6), impression of brick (Ext-P16/6), memo of disclosure (Ext-P14), memo
of recovery of ornaments (Ext-P4/1), memo of personal search of accused (Ext-
P16/7) and arrest memo of accused (Ext-P16/8). In cross-examination, he has
stated that first of all he went to place of the occurrence and prepared the site
plan. As per the investigation, it was revealed by PW Kamlesh Kumari that
accused had come to her house about 15/20 days prior to the occurrence.
However, there is no such mention in the statement of PW Kamlesh Kumari,
recorded under Section 164 CrPC. Besides, PW Kamlesh Kumari, her family
members including her husband, son and daughter had also seen the accused in
her house. He arrested the accused at about 11.30 AM. There is no document in
the challan to show that murder of the deceased was committed by an assault
with a brick. The brick seized by him was not stained with blood. It was
confessed by the accused during interrogation that she had killed the deceased
by hitting her with a brick on her head. He did not prepare any disclosure memo
in this respect. It did not reveal during investigation that prior to the disclosure
of the accused, somebody telephoned him from Govindsar that ornaments were
lying with goldsmith Anil Kumar. He has denied the suggestion that prior to the
disclosure of the accused, he was aware about the whereabouts of the
ornaments. He has also denied the suggestion that prior to his proceeding to
Govindsar, Anil Kumar was aware about it. He went to the place of recovery,
however, he is not figuring in any of the photographs relating to the recovery.
He did not send the brick to FSL. He has denied the suggestion that he has
falsely implicated the accused and that the brick was seized from the veranda of
PW Kamlesh Kumari.
18 CRA No. 11/2018
23. This is the crux of the prosecution evidence adduced before the trial
court. The statement of the accused under Section 342 CrPC came to be
recorded by the trial court, whereby appellant denied the incriminating material
against her and did not prefer to lead any evidence in defence.
24. Learned trial court, having analyzed and marshalled the prosecution
evidence, has convicted the appellant primarily on the grounds that appellant
was last seen in the company of the deceased during the intervening night of the
occurrence and the recovery and identification of the robbed ornaments of the
deceased, consequent upon the alleged disclosure statement made by the
appellant. Learned trial court is of the view that the circumstances established
by the prosecution, unerringly point to the guilt of the appellant and fortify the
inference that it was the appellant alone who killed the deceased and robbed her
ornaments.
25. The appellant has questioned the impugned judgment inter alia on the
grounds that learned trial court has failed to appreciate the prosecution evidence
in its right perspective and prosecution has failed to establish a complete chain
of circumstances leading to the only hypothesis that it was the appellant who
committed murder of the deceased and robbed her gold ornaments. The
appellant has also assailed the impugned judgment on the ground that the
procedure in terms of Section 27 of the Evidence Act, regarding disclosure and
consequent recovery of the ornaments from the shop of goldsmith has not been
adhered to.
26. Having heard the rival contentions and perused the record, we have given
our anxious consideration to the legal position obtaining the facts and
circumstances attending the present case.
19 CRA No. 11/2018
27. It is evident from the prosecution story that there is no eye witness to the
occurrence and entire case of the prosecution hinges upon the circumstantial
evidence.
28. It is trite that with a view to base conviction on the basis of circumstantial
evidence, the prosecution is obliged to establish all the pieces of incriminating
circumstances by credible and clinching evidence and the circumstances so
proved must form a complete chain of events consistent only with the
hypothesis of the guilt of the accused and inconsistent with his innocence. The
legal position as to how such matters are to be examined has been succinctly
expounded by Hon‟ble Supreme Court in number of cases and we may gainfully
refer to Varun Choudhary vs. State of Rajasthan (AIR 2011 SC 72), Raj
Kumar Singh Vs. State of Rajasthan; [(2013 5 SCC 722], 2011(1) Crimes
319 (SC), 2014(i), SLJ 147 (HC), (2011) 12 SCC 545 and (2014) 3 SCC 412
and Nizam Vs. State of Rajasthan (2016) 1 SCC 550.
29. If we approach the present case with the aforesaid principle of law in
mind, we find that learned trial court has predominantly relied upon following
three circumstances to conclude that prosecution has succeeded to establish that
it was the appellant alone who killed the deceased and robbed her gold
ornaments:-
(1) that appellant and deceased were last seen together during the intervening
night of 23rd/24th of October 2012,
(2) the disclosure statement made by the appellant and consequent recovery of
ornaments at her instance from the goldsmith, PW Anil Kumar and
(3) identification of the ornaments by PW Mamta Rani, daughter of the
deceased.
30. Let us discuss one by one.
Circumstance 1
20 CRA No. 11/2018
31. The first and foremost circumstance relied by the prosecution and
accepted by learned trial court is that appellant/accused was last seen in the
company of the deceased during the intervening night of 23 rd/24th of October
2012.
32. The law relating to the „last seen theory‟ no longer remains res integra
now. The theory of last seen together, traces its genesis to Section 106 of the
Evidence Act, 1872 [“the Evidence Act”], which envisages that when any fact is
especially within the knowledge of a person, the burden of proving that fact is
upon the said person. The “last seen theory” is based on this principle of law
and if a person is last seen with the deceased, the said person is obliged to
explain as to the death of the deceased and in a case which hinges on the
circumstantial evidence, if an accused fails to offer plausible explanation in
discharge of the burden placed upon him in terms of Section 106 of the
Evidence Act, it provides an additional link in the chain of circumstances
proved against him. However, it is also significant to underline that conviction
of an accused cannot be based solely on the theory of last seen together because
it only provides an additional link in the chain of circumstances against the
accused.
33. Let us analyze the prosecution evidence in the background of aforesaid
principle of law.
34. It is the prosecution case that appellant came to the house of PW 13
Kamlesh Kumari on 23.10.2012. PW 12 Darshan Singh is husband of PW 13.
Therefore, in order to establish the last seen theory, the prosecution seeks to rely
upon the statements of PWs 12 and 13. As per the prosecution version, the
appellant came to their house and desired to meet the deceased and it was PW
13 who took her to the house of the deceased. PW 12 Darshan Singh has stated
21 CRA No. 11/2018
that appellant came to their house and when he enquired about the purpose of
her visit, he was told by his wife that appellant was on way to the house of her
brother and intended to spend a night in their house. His wife took the appellant
to the house of the deceased. After about half an hour, he called his wife back.
His wife returned and after providing meals, his wife again went to the house of
the deceased. She saw the appellant coming downstairs from the roof. The
witness goes on to state that all of them including the appellant went to sleep in
his house and in the morning when he woke up, he saw that appellant along with
her son were leaving their house. His wife PW 13 Kamlesh Kumari has
corroborated the testimony of her husband by stating that appellant came to her
house at about 3.30 PM. The roof of her house and that of the house of the
deceased were contiguous to each other. The appellant expressed her desire to
meet the deceased. She accompanied her to the house of the deceased. However,
within 5 to 7 minutes, she was called by her husband, she came back, but the
appellant stayed back. The witness further stated that she again went to the
house of the deceased, but found that accused was coming down the stairs and
all of them including the appellant went to sleep in their house. The witness
goes on to state that at about 3.15 AM, when she woke up, she did not find the
accused on her bed. However, while she was engaged in her work, the appellant
came to her and on being enquired by her, the appellant told her that she had
gone to sleep on the roof. She has further stated that appellant woke up and left
along with her son. What emerges from the statements of these two material
prosecution witnesses is that though the appellant along with PW Kamlesh
Kumari went to the house of the deceased, but both of them came back and the
appellant slept in the house of PW Kamlesh Kumari and not in the house of the
deceased. Both the prosecution witnesses PWs Darshan Singh and his wife PW
22 CRA No. 11/2018
Kamlesh Kumari, are consistent in their depositions that appellant and PW
Kamlesh Kumari went to the house of deceased, after sometime PW Kamlesh
Kumari was called by her husband, she came back, however, when again she
was going to the house of the deceased, she found the appellant coming down
the stairs and thereafter the appellant slept in the house of PWs 12 and 13. There
is nothing in the prosecution evidence to suggest that appellant after staying for
night in the house of PWs 12 and 13 was again seen going to the house of the
deceased or seen in the company of the deceased thereafter. All what emerges
from the statements of PWs 12 and 13 is that appellant was last seen in the
company of PWs Kamlesh Kumari and Darshan Singh and not in the company
of the deceased.
35. It appears that there is another aspect of the matter, emerging from the
testimonies of PWs 12 and 13, which weighed with the trial court. PW Kamlesh
Kumari has also stated that in the morning at about 4.00/4.30 AM while
appellant along with her son was leaving their house, she found that appellant
was frightened and short of breath. Here it is pertinent to mention that PW
Darshan Singh, husband of PW Kamlesh Kumari has stated that he woke up at
about 4.30/5.00 AM and appellant told him that she was leaving. It is pertinent
to note that both the husband and wife saw the appellant leaving their house in
the wee hours of the morning, however, while PW Kamlesh Kumari found the
appellant frightened and short of breath, her husband PW Darshan Singh has not
stated so. Therefore, this material contradiction in the testimonies of material
witnesses of the prosecution, who happened to be husband and wife and claimed
to have a witnessed the appellant leaving their house after spending a night, is
fatal to the prosecution. We do not concur with the conclusion drawn by learned
trial court that since the appellant visited house of the deceased few hours before
23 CRA No. 11/2018
her dead body was found in her room and there is no material on the record to
show that anybody else had gone to the house of the deceased, therefore,
prosecution had succeeded to prove that appellant was last seen in the company
of the deceased. Whether anybody else entered or sneaked into the house of the
deceased during the intervening night, after return of the appellant remains an
unsolved mystery. The appellant, as already stated, was last seen in the house of
PWs Kamlesh Kumari and her husband Darshan Singh and not in the company
of the deceased.
36. It is pertinent to note that it is only after the prosecution succeeds to
establish that a person was last seen in the company of the deceased, that the
burden shifts upon the said person to explain as to the death of the deceased and
if an accused fails to offer plausible explanation in discharge of the burden
placed on him under Section 106 of the Evidence Act, it provides a vital link in
the chain of circumstances proved against him. Reference in this regard may be
had to Nizam (supra), whereby Hon‟ble Supreme Court has held as under:-
“Last seen theory” is important link in chain of circumstances that would
point towards guilt of accused with some certainty. Such theory permits court
to shift burden of proof to accused and he must then offer a reasonable
explanation as to cause of death of deceased. But, it is not prudent to base
conviction solely on “last seen theory”. Such theory should be applied taking
into consideration case of prosecution in its entirety and keeping in mind
circumstances that precede and follow the point of being so last seen. Where
time gap is long it would be unsafe to base conviction on „”last seen theory”. It
is safer to look for corroboration from other circumstances and evidence
adduced by the prosecution.”
(Emphasis Supplied)
37. To avoid multiplication of authorities, reference in this respect may also
be had to State of Rajasthan vs. Kashi Ram; (2006) 12 SCC 254, 2011 (1)
Crimes 319 (SC) and 2016 (1) Crimes 94 (SC).
38. Since prosecution in the present case has failed to prove that appellant
was last seen in the company of the deceased, burden does not shift upon the
appellant to explain the circumstances as to the death of the deceased. Learned
24 CRA No. 11/2018
trial court has erred in relying upon the statement of the appellant under Section
342 CrPC to observe that appellant in reply to this circumstance has only stated
that she does not enjoy good relations with PW Kamlesh Kumari but there has
been no such suggestion from the defence during cross-examination of PW
Kamlesh Kumari nor any evidence led by the appellant in defence to prove the
said allegation.
39. For the foregoing reasons, we have no doubt in our mind that prosecution
has failed to establish the first circumstance that appellant was last seen in the
company of the deceased.
Circumstance (2)
40. The prosecution next seeks to rely upon the disclosure statement alleged
to have been made by the appellant and the consequent recovery of the
ornaments from the goldsmith PW Anil Kumar in terms of Section 27 of the
Evidence Act.
41. It is the prosecution case that the appellant during investigation, while in
custody of the police made a disclosure that she handed over the gold ornaments
allegedly robbed from the house of the deceased to goldsmith-PW Anil Kumar
and the appellant subsequently led the investigating agency to the recovery of
the aforesaid ornaments.
42. It is settled law that any confession made by an accused while in the
police custody is inadmissible in evidence in terms of Sections 25 and 26 of the
Evidence Act. Section 27 of the Evidence Act is an exception to the aforesaid
prohibitions imposed under Sections 25 and 26 and enables certain statements
made by a person in the police custody to be admissible in evidence. Section 27
of the Evidence Act provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any offence in
25 CRA No. 11/2018
custody of police officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact discovered may be proved.
Notably, the conditions precedent for applicability of Section 27 of the Evidence
Act are that there must be discovery of fact in consequence of the information
received from a person accused of any offence, the discovery of said fact must
be deposed to, the accused must be in the police custody at the time of receipt of
the information and only so much of the information as it relates to discovery of
the fact thereby disclosed, is admissible in evidence.
43. Let us analyze the prosecution evidence with the aforesaid legal
background in mind.
44. PWs Surinder Singh and Mamta Rani are witnesses to the memo of
disclosure Ext-P4. PW Mamta Rani is daughter of the deceased and PW
Surinder Singh is her son-in-law. Both the witnesses are consistent in the
depositions that when they went to the police station on 28.10.2012, the
appellant was being questioned in the room of the SHO, where she admitted that
she had given two ear rings and two other rings to a goldsmith PW Anil Kumar
and could recover the ornaments from the said goldsmith. A document in this
respect was prepared. PW Chanchal Singh, the investigating officer has also
corroborated the testimonies of the daughter and son-in-law of the deceased
regarding the disclosure and consequent recovery of the ornaments. However, it
is pertinent to mention that he has stated in cross-examination that after they
returned from the place of recovery, the memo of disclosure and memo of
recovery were prepared in the police station and she signed the said documents
after they returned from the shop of the goldsmith. In this view of the matter, a
plea was raised by the defence before the trial court that since the disclosure of
the appellant, as per the testimony of PW Mamta Rani was recorded after the
26 CRA No. 11/2018
recovery of ornaments from the shop of the goldsmith, therefore, it does not
satisfy the requirements of Section 27 of the Evidence Act. Pertinently, PW Anil
Kumar, the goldsmith from whose shop the ornaments came to be recovered by
the investigating officer at the instance of the appellant, has stated that his uncle
Avtar Singh made a telephone call to the police station and after sometime
police came to him and recovered the ornaments. Another prosecution witness,
PW Arjun Singh has also stated that his father made a telephone call to the
police station, whereafter, police came over there, though in cross-examination,
he stated that the phone call was not made by his father in his presence. Learned
trial court discarding the testimonies of the aforesaid witnesses is of the opinion
that merely because PW Mamta Rani stated in her cross-examination that she
signed the memo of disclosure after returning from the place of recovery, does
not mean that the disclosure statement was not recorded prior to proceeding to
the place of recovery, particularly when sequence of disclosure statement and
recovery proceedings have been vividly described by PW Surinder Singh and
the investigating officer SHO Chanchal Singh. We have failed to subscribe to
the opinion of learned trial court for the reason that since PW Mamta Rani, who
happens to be daughter of the deceased specifically admitted in her cross-
examination that memo of disclosure was prepared by the investigating officer
after they returned from the shop of the goldsmith, after recovery of the
ornaments. Though PW Arjun Singh admitted in his cross-examination that his
father did not make any telephone call in his presence, however, PW Anil
Kumar, goldsmith also stated that police came for the recovery of the ornaments
after his uncle Avtar Singh telephonically informed the police regarding the
ornaments lying with PW Anil Kumar. It is also pertinent to mention that the
goldsmith, PW Anil Kumar has also stated that when police came to his shop,
27 CRA No. 11/2018
he handed over the ornaments to the police out of fear. He has also stated that he
got his statement recorded in the court at the instance of police. A cumulative
perusal of the statements of aforesaid witnesses i.e. PWs Surinder Singh, Mamta
Rani and Anil Kumar would indeed indicate that the investigating agency
recorded the disclosure statement of the appellant after recovery of the
ornaments from the shop of goldsmith PW Anil Kumar and since testimonies of
the aforesaid material witnesses, regarding the alleged disclosure made by the
appellant and the consequent recovery and seizure of the ornaments are
discrepant, the benefit goes in favour of the accused.
45. Another aspect of the matter, which has escaped the attention of learned
trial court is that the investigating agency, in its wisdom got the recovery
proceedings photographed to fortify its case. PW 15 Subash Chander, is the
photographer, who has clicked the photographs of the recovery proceedings in
the shop of the goldsmith, PW Anil Kumar. PW Subash Chander, has stated that
it was the police who first went inside the shop of the goldsmith and thereafter
accused went there. The photographer has specifically stated that he did not take
any photograph regarding identification of ornaments by the appellant and there
is no photograph to reflect entry of the appellant in the shop. If the investigating
agency in its wisdom decided to get the recovery proceedings photographed, it
is surprised to note that the photograph regarding entry of the appellant/accused
in the shop of goldsmith is missing. It only goes on to establish that it is not the
appellant who led the investigating agency to the recovery of the gold
ornaments alleged to have been robbed from the deceased.
Circumstance (3)
46. This takes us to the identification of gold ornaments by daughter of the
deceased PW Mamta Rani.
28 CRA No. 11/2018
47. Both PW 4 Mamta Rani and her husband PW 3 Surinder Singh have
deposed that ornaments recovered from the shop of the goldsmith at the instance
of the accused were identified by them. However, as already stated, the
investigating agency, in the present case, got recovery of the ornaments and its
identification photographed and PW 15 Subash Chander, the photographer, who
has clicked the photographs of the proceedings, has stated that he did not take
any photograph regarding identification of the ornaments. Be that as it may,
since it has already been observed that prosecution has failed to prove the
alleged disclosure made by the appellant and consequent recovery of the
ornaments in accordance with the provisions of Section 27 of the Evidence Act,
the identification of ornaments, would otherwise pale into significance.
Other discrepencies
48. There are other aspects of the case which appear to have been glossed
over by learned trial judge. As per the prosecution case, the weapon of offence,
brick recovered from the house of the deceased was found broken on its edges
and the said brick and broken pieces of brick came to be distinctly seized by the
investigating agency, during investigation. PWs 1 and 2, Jaswant Singh and
Karnail Singh are witnesses to the seizure memo of the brick. PW 1 Jaswant
Singh has fortified the prosecution case by stating that the brick recovered from
the spot was broken on its edges. PW 16 Chanchal Singh, the investigating
officer has also stated in the trial court that he seized the broken brick and pieces
of brick. It is pertinent to mention that the aforesaid weapon of offence, the
brick was produced before the Board of Doctors who conducted autopsy on the
dead body of the deceased. PW 7 Dr. Vasna Devi is one of the Members of the
said Board. Though, she stated that the injuries mentioned in the post-mortem
report of the deceased could be caused by such brick, however, in cross-
29 CRA No. 11/2018
examination, she has stated that it is not mentioned in the post-mortem report
that a corner of the brick was broken. As already discussed, the investigating
agency in order to fortify its case, got the scene of occurrence photographed.
PW 14 Mangat Ram is the photographer, who has clicked the scene of
occurrence and the recovery of articles from the spot. He has clearly deposed in
his testimony that when he took photographs of the brick, its edges were not
broken. In our opinion, the aforesaid contradictions in the testimonies of the
prosecution witnesses is another staggering circumstance to dislodge the
prosecution story.
49. Another aspect of the matter which cannot be lost sight of is
contradictions in the testimonies of the prosecution witnesses regarding injuries
on the person of the deceased. The autopsy on the dead body of the deceased
was conducted by a Board of Doctors and as per the autopsy report, the
deceased at the time of post-mortem was bleeding from mouth and left nostril.
Intriguingly, none of the prosecution witnesses have stated about the bleeding
from the mouth of the deceased. On the contrary, PW 1, Jaswant Singh, the
complainant and a witness to the scene of occurrence has stated that injury on
the head of the deceased was visible and deceased was bleeding from ears and
nose. Similarly, son-in-law of the deceased, PW Surinder Singh has also noticed
the blood oozing out from the right ear and nose of the dead body. The daughter
of the deceased PW Mamta Rani has only stated that there was bleeding from
the nose of her mother, therefore, the material prosecution witnesses, who
happen to be close relatives of the deceased, have given different versions
regarding injuries on the person of the deceased, which is contrary to the post-
mortem report.
30 CRA No. 11/2018
50. Having regard to what has been observed and discussed above, the
prosecution evidence is found not only legally flawed but discrepant on material
aspects of the case. A studied appreciation of the prosecution evidence,
discussed hereinabove, leaves no room for doubt that prosecution has badly
failed to prove that appellant was last seen in the company of the deceased. The
disclosure statement attributed to the appellant and the consequent recovery of
the ornaments, allegedly stolen from the person of the deceased, is not in
accordance with the provisions of Section 27 of the Evidence Act. Therefore,
the prosecution has failed to establish a complete chain of circumstances
consistent with hypothesis of the guilt of the accused.
51. For the foregoing reasons, we find merit in the present appeal. Hence, the
present appeal is allowed and the impugned judgment of conviction and order of
sentence passed by learned trial court are set-aside. The appellant is relieved of
her bail bonds.
52. The trial court record be returned forthwith.
(Rajesh Sekhri) (Sanjeev Kumar)
Judge Judge
JAMMU
27.09.2024
Abinash
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes