On account of failure of prosecution to prove charge of Murder against two accused in FIR No- 43 /2013 of police station Janipure, they stand acquitted by Addl. Sessions court jammu. Mr. Tahir Khurshid Raina Addl. Sessions Judge jammu , in his judgment in the said case observed that when there is a thick clout against prosecution case with regard to complicity of the accused in the alleged commission of crime , it fairly attracts acquittal in their favour.
One person named Ashok Massih s/o Tarseem Massih r/o Anand vihar tallab tillo went missing on 1.11.2011. Missing report got filed by the father which also stand disputed by the police . However, on receiving the information from incharge flying squad of police station janipure on 8.11. 2011 about an unidentified dead body lying in bushes in Sureksha vihar parloura, PS janipure swung into action , recovered dead body and initiated inquest proceedings. On identification of deadbody by the brother of deceased the identity of the deceased got established as that of Ashok Massih. On postmortem of the dead body, injuries were found on neck , face and chin of the deceased. Viscera was sent to FSL for chemical examination for detection of poison which was not found as reported by FSL . However , the FIR got registered in May 2013 and accused Ajay sotra r/o Tallab tillo and Arpan Massih r/o Gurdaspure punjab were arrested for commission of offence of Murder of the deceased.
Investigation was conducted by four consecutive IO’s and finally chargeshheet was filed and accused were charged for commission of offences U/Sec 302 – 34 RPC by the court . Full dress trial took place in the case and was finally heard .
In his judgment the ld. Sessions judge Mr. Tahir Khurshid Raina has held that when case is based on circumstanceial evidence, every incriminating fact pleaded in the Charge sheet against the accused has to be proved by prosecution beyond reasonable doubt and they be also closely knit to eachother to culminate into only one conclusion that the author of the crime are accused here in and none else. For reference he referred to panchsheel laid down by Hon’ble Supreme Court in Shard bridhichand judgment to be followed in cases based on circumstantial evidence.
In the instant case the court observed that first defect in the prosecution case is inordinate and unexplained delay of one and half year in lodging an FIR. Court observed that once injuries were found on the deadbody of the deceased , they were sufficient to constitute primafacie cause of death of the deceased and hence FIR should have been lodged in the very first instance . And doctor also opined finally that cause of death is shock on account of these injuries. However it is not fairly explained and why this inordinate delay happened in lodging of an FIR . During inquest proceedings no witness ever revealed about the accused persons . However , after lodging of an FIR after a long delay , a new story emanated based on incriminating factors like motive, last seen evidence, disclosure, seizure and medical evidence to connect the accused with the commission offence. It was projected by the prosecution that deceased wrote some objectionable letter to the wife of the accused Ajay . She showed it to accused which became source of conflict between the two , culminated into murder of the deceased. However, during the trial neither any such letter was brought before the court nor any witness to this fact has proved this motive of crime attributed to the accused Ajay . Rather it was fully negated by the witnesses cited to this fact . Two witnesses were cited to prove last seen evidence. One has fully disowned it and second was declared unworthy of credit by the court as why he kept mum for two years . Court observed that this is not the natural conduct of the witness who didn’t bother to disclose any such information to family members of the deceased whom he knew so closely , nor to police during inquest proceedings. Court also rejected last seen evidence on this ground that time gap between last seen and time of death requires to be very less to dispell any doubt of intervention of any third person in between. However , the evidence on record on this issue neither mentioned the time when deceased was seen last in the company of accused nor time since death is available. Rather the dead body is recovered after eight days of his missing , in a fully decomposed state . The disclosure and recovery is also negated by independent witness and the recovery of weapon of offence that is Base ball bat is fully clouded with clout and thick layers of doubt and mystery. Even there is no clear evidence on record as where this alleged weapon of offence was kept after its alleged recovery. Court observed that though doctor has opined that injuries noted on the dead body could have been caused by this weapon of offence. But who recovered weapon of offence and where it was kept after recovery and from whom it was then taken for examination by the doctor is not proved at all. Court observed that every incriminating fact was required to be proved to the hilt as it involves life and liberty of the accused who have been tried for commission of alleged offence in this court and are behind the bar for last 7 years.
Court further observed that there was one best evidence available to the prosecution which was a mobile phone recovered from the dead body at the time of its recovery . But its astonishing that no investigation has ever been conducted on this important aspect to have collected CDR details which would have unveiled the truth as with whom the deceased talked last and and from which location.
Court observed that not only there is a complete break of the chain of prosecution evidence on record but even all incriminating facts projected in the charge sheet against the accused have not been proved .
Accordingly both the undertrial accused were acquitted by the court for failure of prosecution to prove charge of Murder against them beyond reasonable doubt. JNF