Sr. No. 1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRAA No. 91/2012 Reserved on : 24.04.2025 Pronounced on: 20.05.2025 State …. Petitioner/Appellant(s) Through:- Mr. Rajesh Thappa, AAG V/s Baid Raj …..Respondent(s) Through:- Ms. Manpreet Kour, Advocate CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGMENT Vinod Chatterji Koul-J 01. This appeal is directed against judgment dated 31.05.2012, passed by Principal Sessions Judge, Kishtwar (for short “Trial court”) in File No.07/Sessions, vide which respondent came to be acquitted of the charge under Section 302 Ranbir Penal Code (RPC). 02. Before the grounds urged in the memo of appeal are adverted to, it would be expedient to have an overview of the background facts of the case. 03. Based on a written report submitted by PW-1, Chuni Lal, on 16.06.2003 at about 0915 hours, FIR No.66/2003 was registered at Police Station Kishtwar against the accused, respondent herein. The allegation was that during the night of 16.06.2003, the accused, who was a VDC member, shot and killed Ram Nath using an official weapon. It was also alleged that the accused moved the dead body and threw it at a distance of 4 Jaribs in a dry nallah. Following the registration of the FIR, the dead body was recovered from the Nallah and investigation commenced. Upon completion of the investigation, offence CRAA 91/2012 punishable under Section 302 was found established against the accused and accordingly charge-sheet was laid before the Trial court. 04. The respondent came to be charged by the Trial court for the aforesaid offences, but he pleaded innocence and claimed trial, prompting the Trial court to ask for the prosecution evidence. On conclusion of the prosecution evidence, the respondent was examined in terms of Section 342 CrPC. He denied the incriminating evidence against him and opted not to produce any evidence in defence. 05. The Trial Court, having analyzed and marshalled the prosecution evidence, has concluded that prosecution has failed to connect the respondent with the commission of the crime beyond reasonable shadow of doubt. Consequently, the respondent came to be acquitted by judgement impugned. 06. The appellant assails the impugned judgment primarily on the ground that the Trial Court has acquitted the respondent despite the sufficient material on record to bring home the guilt and that the Trial Court has failed to appreciate the prosecution evidence in its right perspective. The Trial Court is stated to have failed to consider the crucial pieces of evidence. The circumstances as corroborated by the medical report, were sufficient to establish the guilt of the accused/respondent, therefore, the order of acquittal deserves to be set-aside and the accused should be convicted. 07. Before giving a closer look to the grounds urged in the memo of appeal, let us have a look at the prosecution evidence, a brief resume whereof reads as below:- 08. PW-1 Chuni Lal, a witness to the lodging of the FIR and seizure memos, deposed that he knows the accused Baid Raj, a resident of Lava and a VDC CRAA 91/2012 member. He stated that two years ago, during night hours at around 2:30–3:00 a.m. on 15/16, his brother Ram Nath was killed by the accused with a government weapon, and the dead body was thrown into a Nallah. VDC members apprehended the accused and handed him over to the police. On that night, PW-1 was not at home, as he was about 2–3 miles away, and upon hearing the news of the occurrence, he came to the spot where he saw the dead body and about 200 villagers had assembled. He did not give any application to the police or SHO. The police arrived at the spot, conducted the post-mortem of the deceased, and thereafter, along with PW-1, went to the house of the accused, where bloodstains were found from the door to inside the house. A blood-stained khakhi-coloured uniform was also present and seized by the police. Though he has no knowledge whether the police prepared a seizure memo at that time, he admitted having signed a paper, identified his signature on the seizure memo annexed with the challan, and acknowledged the correctness of its contents, marked as ExPW-I. From the spot, the police seized blood-stained and simple soil and prepared a seizure memo, whose contents were found to be true and correct; the witness identified his signature thereon, marked as Ex PW-IX. The dead body was not placed under his superdnama, but he signed as a witness on the receipt memo of the dead body and identified his signature. PW-1 further deposed that the rifle had already been seized by the police earlier, and in his presence, one empty cartridge (Khokha) was recovered, and in this regard, a memo was prepared bearing his signatures, the contents of which he confirmed to be true, marked as ExPW-I/2.The witness further deposed that the rifle was not seized in his presence; however, he identified his signature on the seizure memo of the rifle. He stated that he did not lodge any separate report with the police, but admitted that his signature was obtained by the police on the FIR, CRAA 91/2012 which he identifies. On the copy of the FIR, he also identifies his signature. The ammunition seized was shown to the witness during the proceedings, and he identified it, stating that it was the same ammunition that had been seized in his presence. He further deposed that the real dispute between the parties was regarding land and one girl, and because of this dispute, the accused intentionally fired upon the deceased. In his cross-examination, the witness admitted that the deceased Ram Nath was his real brother. He stated that they are three brothers in total, including one Thakur Lal who resides with him, while the deceased Ram Nath had been residing separately for about 2–3 years prior to the date of occurrence. 09. PW-2 Ramesh Kumar, a witness to the seizure memo, deposed that he knows the accused and that the deceased Ram Nath was his uncle. He stated that the deceased was an agriculturist by profession and also reared sheep and goats, whereas the accused was not involved in agriculture but was a VDC member. The occurrence took place on the night of 15th June 2002 at around 2:00 a.m. At that time, the witness was in Kishtwar, and on the morning of 16th June 2002, at about 8:00 a.m., he received a telephone call from his home informing him that his uncle had died. Upon receiving the information, he immediately returned home and found the dead body of his uncle lying on dry land near a Nallah, where the police were present. From the scene of occurrence up to the house of the accused, there were visible bloodstains and impressions of dragging on the soil, and following these stains and marks led them to the house of the accused. The verandah of the accused’s house was completely bloodstained, and bloodstains were also observed on the door, which appeared to have been cleaned with water. The post-mortem of the deceased was conducted at the spot where the dead body was found. During this time, the VDC members CRAA 91/2012 apprehended the accused and questioned him, upon which the accused admitted that he had committed the murder. PW-2 stated that he then informed the police that the accused had confessed, and requested that the villagers should not be unnecessarily harassed.PW-2 Ramesh Kumar, a witness to the seizure memo, deposed that he knows the accused and that the deceased Ram Nath was his uncle. He stated that the deceased was an agriculturist by profession and also reared sheep and goats, whereas the accused was not involved in agriculture but was a VDC member. The occurrence took place on the night of 15th June 2002 at around 2:00 a.m. At that time, the witness was in Kishtwar, and on the morning of 16th June 2002, at about 8:00 a.m., he received a telephone call from his home informing him that his uncle had died. Upon receiving the information, he immediately returned home and found the dead body of his uncle lying on dry land near a Nallah, where the police were present. From the scene of occurrence up to the house of the accused, there were visible bloodstains and impressions of dragging on the soil, and following these stains and marks led them to the house of the accused. The verandah of the accused’s house was completely bloodstained, and bloodstains were also observed on the door, which appeared to have been cleaned with water. The post-mortem of the deceased was conducted at the spot where the dead body was found. During this time, the VDC members apprehended the accused and questioned him, upon which the accused admitted that he had committed the murder. PW-2 stated that he then informed the police that the accused had confessed, and requested that the villagers should not be unnecessarily harassed. 10. PW-3: Mst. Billu Devi (Witness to Circumstantial Evidence). She knows the accused, Baid Raj, who lives in Village Lava and was a VDC (Village Defense Committee) member. About 1½ years ago, at around 8 CRAA 91/2012 p.m., her husband went to the house of Numberdar Brij Lal and did not return that night. The next morning, at about 8 a.m., she heard that her husband had been killed and his dead body was found lying in a Nallah (small stream). The accused, Baid Raj, had allegedly killed her husband at his house and disposed of the body in the Nallah. Billu Devi, who is the wife of the deceased, mentioned that she was married about 5–6 months ago to him. She suspected Baid Raj but had no knowledge or information about the reasons for the killing. She stated that she was informed about her husband’s death and that his body was found in the Nallah. She also mentioned that prior to his death, the deceased had been questioning the accused about why he was selling his land. Her statement was recorded by the police, and she repeated the same facts before the Court. The dead body was brought home at around 1 p.m. The police came to the spot, and her statement was recorded there. In her cross-examination, she deposed that her sister, Shyama Devi, who resides with their mother, told her about the incident. She clarified that she had not witnessed the occurrence herself but had heard about it. She heard that her husband and deceased Ram Nath were fired upon, and her husband’s dead body was found in a Nallah, about one mile from her house. She had no knowledge of where the accused obtained the bullet. At the scene of occurrence, a large number of people had gathered. The police seized blood samples from the Nallah, and a seizure memo was prepared on the spot. Numberdar and Chowkidar Prem Nath were present at the scene, and the police took the signature of the Numberdar on the seizure memo. Near Baid Raj’s house, the house of Jameta (father of Balkrishan) is located. Any noise or disturbance from the house of Baid Raj could easily be heard by people nearby. In Balkrishan’s house, 7–8 people lived, but no such CRAA 91/2012 noise or disturbance was reported. During this time, the witness heard rumors that the deceased was killed by militants, given the history of militancy in the area. Several militancy-related incidents had happened earlier where militants had killed many people. She had lodged a report with the police at around 12 p.m. She clarified that she did not know from whom she got the information about the killing. 11. PW-4 Brij Lal (Witness of Seizure Memo) has deposed that he knows the accused, who resides in his village and is an agriculturist by profession. In 2003, the witness was posted in the village of Lava-Sarthal as a VDC member. The accused is a married man, and his wife’s name is Shamli Devi. The witness stated that he had no knowledge of the actual occurrence. He mentioned that after marriage, the accused resided in his in- laws’ house as a “Khana Damad.” The accused had exchanged his land with Dass Ram and, in lieu thereof, received ₹500. At his home, Dass Ram and the deceased, Ram Nath, had dinner, after which Ram Nath and Balj Nath went somewhere. The next morning, the witness heard that Ram Nath had been killed. He visited the spot and saw the dead body of Ram Nath lying in a nallah. The police soon arrived, apprehended the accused, and took him to the Police Post, from where he was later shifted to Kishtwar. In cross-examination, the witness deposed that he had no knowledge of the proceedings carried out by the police at the spot. He did not know whether the police prepared any documents or recorded any statements on- site. He also confirmed that he did not sign any papers at the time. However, about three to four days after the incident, the police called him to the Police Station and instructed him to produce the accused’s clothes. The witness opened the lock of the accused’s house, retrieved the clothes, and handed CRAA 91/2012 them over to the police. He did not know where the police kept those clothes thereafter. Upon reaching the village, he noticed that around 300 people had gathered at the spot. The house of the accused is situated within the village, among approximately 60–65 houses. In the immediate vicinity of the accused’s house, there are around 20–25 houses. Nearby houses belong to Balkrishan, Jameet Ram, Madan Lal, Moti Lal, and Robail Chand. 12. PW-5 Jameet Ram deposed that he knew both the accused and the deceased Ram Nath, who were related to each other as brothers. Six years ago, while he was at home during the night, he woke up around 4 a.m. upon hearing some noise. However, he did not come out of his house.The following morning, when daylight appeared, he stepped outside and learned that a firing incident had occurred about 35-40 feet from his house. Police soon arrived at the spot and recorded his statement. In his statement recorded under Section 161 Cr.P.C., he mentioned that the accused had a dispute with the deceased and that the accused had fired shots. However, during cross- examination, he clarified that although he heard noises during that night, he did not witness who fired the shots. He had merely repeated the statement he gave earlier to the police. He further stated he had no personal knowledge of the exact events of that night. He acknowledged that at the time of the incident, militancy was prevalent in the area, and he had no idea from where or how the police came upon the information regarding the deceased’s death. 13. PW-6 Vipan Lal Sharma, who was the Incharge Post at Marwali in 2003, testified that approximately 8 to 9 days before the incident, the accused approached him and claimed that Ram Nath had illicit relations with his wife. He advised the accused to seek legal recourse by going to Kishtwar and refraining from any unlawful actions. On the 16th of the month, he CRAA 91/2012 received information from villagers that the accused had killed Ram Nath by firing a 303 rifle. Upon learning this, he proceeded to the accused’s house where he found the body of Ram Nath lying in a dry Nallah beneath the house. Additionally, he observed blood stains in the kitchen of the accused’s house. In cross-examination, he confirmed that he could not recall the exact date the accused had approached him with the allegation about Ram Nath. He further stated that two individuals, Susheel Kumar and SPO Ramesh Kumar, were present when the accused made the allegation. He was informed of the death of Ram Nath on the 16th of the month, but he admitted that he had no personal knowledge of the actual shooting and was not told by any villager that they had seen the accused shoot Ram Nath. The blood in the kitchen had dried by the time he saw it. He indicated that the accused was not present at his house on the morning of the incident, as he had gone with his father to a summer hut (Gawari) located about two Jareebs away. When the police arrived at the scene around 10 a.m., he had already seized the weapon from the accused. He also stated that there were two VDC Committees in the village, and the accused was on duty at the time of the incident. However, he could not recall how many members were on duty that day. Although the Numberdar (village head) informed him that firing had taken place in the village, no one had heard the gunshot at the Post, and none of the villagers had directly observed the accused firing at Ram Nath. Finally, he testified that when the accused returned to the post after the incident, he appeared calm and composed. 14. PW-7 Dass Ram, who is related to the accused as the son of his brother-in-law, testified that he had obtained land from the accused in exchange. He paid Rs. 5000 through the Numberdar to the accused for an CRAA 91/2012 additional 1½ Kanal of land. After handing over the money, he returned to his house. The following morning, when he went out to tend to his sheep and goats, he heard that Ram Nath had been killed. He then went to the scene of the crime and saw the dead body of Ram Nath. He stated that he did not know who killed the deceased and had no knowledge of the relationship between the accused and his wife. As far as he knew, there were no relations between the wife of the accused and the deceased. He further confirmed that he did not hear any noises during the night of the incident. In cross- examination, he clarified that the dead body of the deceased was found in a Nallah, about 4-5 kilometers from the accused’s house. He also mentioned that the area of Sarthal had experienced militancy for the past 16 to 17 years. This was the first time he had given a statement to the police, and he asserted that none of the militants were involved in the killing of the deceased. 15. Insofar as Pw-8 Chuni Lal is concerned, he is a circumstantial witness. He has stated that he knows deceased and that accused is an agriculturist and a VDC member. Accused and deceased had exchanged land. In the morning of fateful day, he heard that dead body of Ram Nath was lying in Nallah. He went to Nallah and saw dead body of deceased in Nallah. In his cross- examination, he stated that when he went to house of Numberdar for providing Rs.5000/- to accused, the deceased did not come there and he did not even participate in panchayat there. 16. PW – 9, Pre Nath is witness to Superdnama, who has deposed that he knows accused, as accused lives in his chowkidari. He also knows deceased. Police did not record his statement but paper regarding Superdnama of ring/mohar on which he identifies his signature, its contents are true. In cross examination, he deposed that ring was given to him by police in village. He CRAA 91/2012 has not brought that ring with him. He has no knowledge on which date ring was placed on his superdnama. 17. Pw – 10, Shambu Nath, who is witness to Superdnama, has deposed that he does not know accused. He has no knowledge about Superdnama memo. 18. This is the crux of prosecution evidence. As already mentioned, the respondent in his statement under Section 342 Cr.P.C. has denied the incriminating evidence against him in the testimonies of the prosecution witnesses and opted not to enter the defence. 19. We have heard the rival contentions of the parties. We have carefully gone through the record and considered the matter. 20. In the present case, an FIR was registered on the basis of the report filed by PW-1, Chuni Lal. He reported that on the night of 16.06.2003, the accused, Baid Raj (son of Lassu Ram), a resident of Village Lava and a member of the Village Defence Committee (VDC), used a government- issued weapon to shoot and kill Ram Nath (son of Hari Saran Thaker), also a resident of Village Lava. It was further alleged that Baid Raj removed the deceased’s body from his residence and disposed of it approximately 4 Jaribs away in a dry Nallah, where the body was later found. Blood stains were discovered in Baid Raj’s house, indicating the crime had occurred there. The motive for the murder remains unclear, but it is alleged that Baid Raj killed his own brother. 21. Prosecution Witness Chuni Lal (PW-1) was examined in relation to the report on the basis of which the FIR in question was registered. It is stated that PW-1 had submitted a written report to the police, which led to the registration of the FIR. However, during his testimony, PW-1 CRAA 91/2012 categorically denied having submitted any such application to the police or the Station House Officer (SHO). He further stated that he had no knowledge as to who had submitted the report to the police and denied authorship of the report that was purportedly lodged in his name. According to him, the report bearing his name is incorrect. 22. In view of this denial, the prosecution has failed to prove the authorship and authenticity of the report that formed the basis for the FIR. The prosecution’s claim that the FIR was registered on the basis of a report made by PW-1, Chuni Lal, has not been substantiated. Resultantly, the FIR in question remains unproved which casts serious doubts on the genuineness, truthfulness, and overall credibility of the prosecution’s case. The FIR forms the foundation of the present case and the subsequent investigation. Since the FIR has not been reliably established, the very basis of the prosecution's case stands on shaky ground. 23. PW1 Chuni Lal has been cited as a witness to various seizure memos, including those related to the seizure of blood-stained soil, simple soil, a cartridge of a 303 rifle, and other material evidence. However, during his examination, PW-1 initially stated that he had no knowledge as to whether the police prepared the seizure memos at the spot. He did, however, acknowledge that the police seized blood-stained and simple soil from the scene and admitted to the correctness of the contents of the seizure memos marked as Ex.PW-IX. Furthermore, he stated that the rifle had already been seized by the police and that, in his presence, an empty cartridge was recovered, for which a memo was prepared. He confirmed appending his signature to the memo and affirmed the truthfulness of its contents, marked as ExPW-I/2.The testimony of PW-1 Chuni Lal, when read in totality, CRAA 91/2012 reveals internal contradictions. On one hand, he disclaims knowledge about the preparation of seizure memos by the police, and on the other hand, he affirms their contents and his endorsement by signature. These inconsistencies in his statements regarding the seizure of critical material evidence such as blood-stained soil, the cartridge of the 303 rifle, the deceased’s clothing, and other items, create doubt about the credibility and reliability of his testimony. Upon a holistic appreciation of PW-1's evidence, it becomes apparent that his statements are self-contradictory and fail to inspire confidence in the judicial mind. 24. Prosecution Witness Ramesh Kumar (PW-2) was also cited as a witness to the seizure memos concerning the blood-stained and simple soil, as well as the clothes of the deceased, which the prosecution claims were seized from the scene of the incident. However, PW-2 contradicted the prosecution's version by stating that the blood-stained clothes were not seized at the spot, which directly conflicts with the prosecution’s narrative. Furthermore, PW-2 made inconsistent statements regarding the contents of the seizure memos. Given these contradictions, the testimony of PW-2 does not corroborate the prosecution's case and cannot be relied upon. The inconsistencies in his evidence undermine its credibility and fail to inspire confidence in the judicial mind. 25. Prosecution Witness Brij Lal (PW-4) was also presented as a witness to the seizure memos, including those concerning the clothes of the deceased, empty cartridges of a 303 rifle, and the weapon itself. However, PW-4 stated that he had no knowledge of whether the police prepared any documents at the scene and further asserted that the police had not recorded his statement. Additionally, he did not acknowledge his signature on any of CRAA 91/2012 the documents related to the seizure.PW-4's testimony, therefore, makes it evident that none of the seizure memos were prepared in his presence, nor did he participate in the process. Consequently, this witness has not supported the prosecution’s version of events. 26. When considered alongside the statements of the other witnesses, such as PW-1 Chuni Lal and PW-2 Ramesh Kumar, it becomes clear that none of these witnesses were present when the alleged seizures took place, nor were they involved in the preparation of any documents by the investigating officer. As such, the testimonies of these witnesses do not corroborate the prosecution’s case, leaving the allegations unsubstantiated by their evidence. 27. One of the circumstances relied upon by the prosecution is the alleged illicit relationship between the deceased and the wife of the accused, which the prosecution claims has triggered as a motive for the accused to kill the deceased. However, the evidence produced by the prosecution's witnesses does not support this allegation. Witnesses, such as PW-1 Chuni Lal, PW-2 Ramesh Kumar, PW-3 Billu Devi and PW-4 Dass Ram, all have denied any knowledge of, or evidence regarding, an illicit relationship between the deceased and the wife of the accused. Thus, the prosecution has failed to establish the existence of any such illicit relationship, which would, in turn, suggest a motive for the killing.Further, PW-1 Chuni Lal testified that the accused and the deceased shared good relations, contradicting the prosecution's theory of a motive stemming from an illicit affair. PW-2 Ramesh Kumar, the nephew of the deceased, initially acknowledged that the police had written in the report that the deceased had an illicit relationship with the wife of the accused, but he did not provide any direct evidence to support this claim and stated that this was the basis for the accusation that CRAA 91/2012 the accused killed the deceased. On the other hand, PW-3 Billu Devi, the wife of the deceased, testified that she had no knowledge of the reason behind her husband’s death, and PW-4 Dass Ram, another witness, asserted that to his knowledge, there was no illicit relationship between the wife of the accused and the deceased. 28. In light of the above, the prosecution has failed to establish the alleged motive based on an illicit relationship, as the majority of the witnesses have explicitly denied any such affair. Therefore, this circumstance does not provide a valid basis for inferring the accused's motive for the murder. 29. From the foregoing discussion, it is evident that the Trial Court has duly and correctly appreciated the evidence on record and has rightly found that there is no nexus between the circumstances relied upon and the commission of the offence. Furthermore, the circumstances sought to be relied upon by the appellant have not been substantiated, as discussed hereinabove. 30. As per the testimony of PW Chunni Lal, the houses of individuals namely Jagger Nath, Rabella, Jameet Ram, and Balkrishan (S/o Ganga) are situated adjacent to the house of the accused. However, except for Jameet Ram, none of these individuals have been cited as witnesses or examined by the prosecution. No plausible explanation has been offered by the prosecution for withholding such potential witnesses, especially when the nature and manner of the alleged occurrence strongly suggest that they could have either witnessed the incident or had relevant knowledge about it. PW Chunni Lal further deposed that the accused made an extra-judicial confession before his father regarding the commission of the crime. Despite this, the prosecution did not examine the father of PW Chunni Lal, the very CRAA 91/2012 individual before whom the confession is said to have been made. This non- production raises serious doubts about the authenticity and truthfulness of the prosecution's version. Similarly, PW Ramesh Kumar stated that his father, Bodh Raj, along with Jameet Ram, Balkrishan and Madan Lal, heard the sound of gunfire. Yet, none of these persons have been brought forth as witnesses by the prosecution, which again casts a shadow on the credibility of the prosecution's case. The post-mortem examination of the deceased was conducted by Dr. Abdul Majeed, who, as per the medical certificate on record, attributed the cause of death to hemorrhagic shock resulting from a bullet injury, leading to cardio-respiratory arrest. Although he was listed as a prosecution witness, he was not examined despite the prosecution being granted several opportunities. No justification for his non-production has been provided. As a result, the medical report remains unproved, adversely affecting the prosecution's case. Likewise, the Director, Forensic Science Laboratory (PW-12), another material witness listed by the prosecution, was not produced. These two witnesses the medical examiner and the Director of FSL were vital to establishing two crucial aspects of the case i.e. the cause of death and the use of a firearm in the commission of the offence. Their non- production, without any cogent explanation, is fatal to the prosecution’s case. Furthermore, PW Jan Mohammad, the Assistant Sub-Inspector and Investigating Officer, also failed to appear before the court to testify regarding the investigation he had conducted. His absence further weakens the evidentiary basis of the prosecution's case 31. In view of the foregoing discussion, it is evident that the prosecution has failed to establish the charge against the accused beyond a reasonable doubt. The evidence brought on record falls short of the standard required CRAA 91/2012 for recording a conviction. The chain of circumstances alleged to connect the accused to the crime has not been satisfactorily proved and there exists a significant gap in the evidentiary link. Moreover, key material witnesses, including the medical officer, the Director FSL and the Investigating Officer, have not been examined and the reasons for their non-production remain unexplained. 32. For what has been observed and discussed above, we do not find any merit in the present appeal and any reason to interfere with the well-reasoned judgment recorded by learned Trial Court. Hence, the present appeal is dismissed and the impugned judgment is upheld. (Vinod Chatterji Koul) (Sindhu Sharma) Judge Judge Jammu: 20.05.2025 Abinash Whether approved for reporting? Yes/No BIR BAHADUR SINGH 2025.05.26 13:06 I am the author of this document