RAJNESH OSWAL, J

1. This Criminal Acquittal Appeal has been directed against judgment dated 31.12.2012 passed by learned Additional Sessions Judge, Jammu (trial court, for short), in case File No.56/S titled State Vs. Ravinder Kumar in Crime No.57/2007 of Police Station Miran Sahib for the alleged commission of offence under Section 302 of the Ranbir Penal Code 1989 (‘RPC’ for short).

2. The prosecution case is that on 08.11.2007, complainant-Shakti Kumar S/o Baldev Raj R/o Maralia, Tehsil R. S. Pura (Numberdar of the village), made a written complaint to SHO Police Station R. S. Pura alleging, inter alia, that accused Ravinder Kumar alias Babi S/o Bishan Dass R/o Maralia having strained relation with his wife Sonia used to quarrel with her and that day at about 8.15 PM when his wife Sonia was making a telephonic call on the STD shop of Rahul Sharma, accused Ravinder Kumar came to the shop, caught hold her of her hair dragged her on the road and in furtherance of criminal intention to eliminate, brutally attacked her on throat and chin with an iron weapon, as a result she was seriously injured, profusely bled in front of the shop and succumbed to the injuries on the spot. Accused after the commission of murder fled away. On the basis of this complaint, FIR came to be registered by Police Station Miran Sahib and investigation of the case was assigned to Sachinder Pal Singh SI. The investigating officer proceeded to the spot, prepared the spot sketch, seized blood stained clay, simple clay as also blood of the deceased for chemical analysis. Articles were sealed. Corpse of the deceased was shifted to the hospital for post mortem. Photographs of the dead body were also obtained. Later dead body of the deceased was handed over to the family for last rites against proper receipt. The Investigating Officer recorded the statements of the witnesses under Section 161 Cr.P.C. and got the aforesaid articles resealed from the Executive Magistrate and forwarded for chemical analysis to the FSL Jammu. He also obtained the report of Patwari with respect to place of occurrence and got the statements of material witnesses recorded under Section 164 Cr.P.C. before JMIC R. S. Pura. Further investigation of the case was conducted by Manjit Singh SHO Police Station Miran Sahib, who arrested the accused/respondent, prepared his disclosure statement and seized weapon of offence i.e. ‘screw-driver’ at the instance of the accused/respondent. Consequently, he also prepared spot sketch of the place of recovery and got statement of PW Rahula Sharma recorded under Section 164 Cr.P.C. in the court of JMIC R.S. Pura. He collected the postmortem report of the deceased, concluded the investigation and presented the final report in the court of JMIC R.S. Pura on 27.11.2008 and the same was committed to the court of Principal Sessions Judge, Jammu wherefrom it was transferred to learned trial court for disposal.

3. It surfaced during investigation that the accused/respondent was a Mason by profession and was residing at Delhi for the last seven years. He had illicit relationship with one Tripta Verma alias Sonia D/o Gian Chand R/o Pathankot and they were in live-in relationship, as a result they were blessed with two sons. It came to the light that accused/respondent suspected the character of deceasedSonia and they used to quarrel with each other. Therefore, they shifted to Maralia where deceased-Sonia opened a Tailoring Shop to the disliking of the accused/respondent, as a result their relations further strained. The deceased had lodged a report with Women Cell against the accused/respondent where accused compromised the dispute on the condition that his wife, deceased-Sonia, would not go to tailoring shop. However, she refused to do so and continued with her tailoring occupation.

4. It further surfaced that on the fateful morning of 08.11.2007, the couple quarreled with each other as deceased-Sonia was adamant to run the tailoring shop. When the accused/respondent returned in the evening and found deceasedSonia had gone to the shop, he started beating her. The deceased rescued herself from the clutches of the accused and rushed to the STD shop to call the police. It is alleged that apprehending his arrest, the accused/respondent made up his mind to eliminate the deceased and in furtherance of criminal intention, he left his house with a screw-driver, went to the STD shop, caught hold the deceased of her hair, dragged her out and attacked her with a screw driver and fled away. The investigating agency concluded that the prima facie offence under Section 302 RPC was made out against the accused.

5. The accused was charged by the trial court on 05.11.2009 for the alleged commission of offence under Section 302 RPC whereby he pleaded innocence and claimed trial. Accordingly, prosecution was directed to lead evidence. The prosecution has examined almost all the witnesses listed in the charge-sheet except the statements of FSL experts, as accused had preferred a motion in terms of Section 272(ii) Cr.P.C., thereby admitting the statements of the FSL experts i.e. PW Mushtaq Ahmed Bhat, Scientific Officer FSL Srinagar and S. K. Ranzan, Scientific Officer FSL Jammu.

6. On conclusion of the prosecution evidence, the accused/respondent was subjected to examination under Section 342 Cr.P.C., 1989 (State Cr.P.C.) whereby he denied the incriminating evidence against him and did not choose to lead any evidence in defence.

7. Learned trial court after analyzing the prosecution evidence has concluded that prosecution has failed to prove the guilt of the accused/respondent beyond reasonable doubt and accordingly, the accused/respondent was acquitted of the charges against him.

8. The appellant-State has questioned the impugned judgment on the conventional grounds that the learned trial court has failed to appreciate the ocular as well as documentary evidence in right perspective and the impugned judgment has been passed in a mechanical manner.

9. Heard arguments and perused the file.

10. While learned counsel for the appellant-State has reiterated the grounds urged in the memo of appeal, learned counsel for the accused/respondent vehemently argued that as almost all the prosecution witnesses including relatives of the deceased turned hostile, the accused/respondent was rightly acquitted of the charges by learned trial Court and the appeal is liable to be dismissed.

11. In order to appreciate the controversy at hand, it shall be apt to give a brief account of the statements of the prosecution witnesses.

12. PW Prem Sharma is witness to the seizure memo EXTP-3 of dead body of the deceased. He is also witness to the seizure memo of ‘Purse’ of the deceased EXTP-3/1, seizure memo of the ordinary clay, blood stained clay and the blood of the deceased EXTP-3/2, EXTP-3/3, EXTP-3/4 respectively. In cross examination, he has stated that he signed these seizure memos in the police station and the police had kept the ordinary clay and blood stained clay in the envelopes.

13. PW Bishan Dass is father of the accused and father-in-law of the deceased. He has turned hostile.

14. PW Raj Rani is mother of the accused and mother-in-law of the deceased. She has also turned hostile.

15. PW Yash Pal Singh is witness to the Sapurdnama of seal EXTP-18 and in cross examination he has stated that the Sapurdnama was prepared in the Police Station.

16. PW Master Prince is minor son of the accused/respondent and the deceased. He also turned hostile and stated in cross examination that he was studying in 7th standard in the year 2007 and also stated that relations of his parents were cordial and they never quarreled.

17. PW Abhishek is also minor son of the accused/respondent and the deceased and he too turned hostile. He also denied his statement under Section 164 Cr.P.C. and stated that he had been threatened by the police to implicate the accused/respondent. He has stated that he was eight years of age at the time the deceased died.

18. PW Naresh Kumar is witness to the seizure of ‘ring’ and ‘tops’ EXTP-8 and receipt of the dead body EXTP-8/1. In cross-examination, he has clarified that he was told about the occurrence in the police station by the SHO and the ‘tops’ and ‘ring’ were seized by the police in the police station.

19. PW Shakti Kumar is the complainant and he has made a statement in consonance to what was stated in his complaint. He has deposed that on 08.11.2007 at about 8.25 PM the deceased along with her children went to STD shop to make a phone call. The accused armed with a screw driver followed the deceased. The accused caught hold of the deceased at the STD shop, dragged her out and attacked her with the help of screw driver on her chin, throat and neck. The deceased profusely bled, fell down, became unconscious and died on the spot. He has admitted the written report EXTP-7 lodged by him. He further stated that police shifted the corpse of the deceased to the hospital for postmortem and seized blood stained clay and blood of the deceased in his presence. His statement was recorded by the police and accused was arrested on 12.10.2008. He further deposed that the deceased made a disclosure statement EXTP-7/2 in his presence, whereby he confessed to have committed the crime. He has also admitted recovery memo of the weapon of offence EXTP-7/3. In cross-examination he has stated that he is Numberdar of the village for the last 10 years and admitted that he had lodged a report against the respondent/accused pertaining to theft of goat valuing about Rs.1700/- and said case was compromised. He has also stated in cross examination that he mentioned in his written report that the deceased went to the STD shop along with her children and that the weapon of offence was iron article. He also stated that adjoining shop to the shop of PW Rahul Sharma was open and that parents of the accused were at a distance of 20-30 yards from the place of occurrence and they asked the appellant not to kill the deceased. He further stated that he was told by the investigating officer that accused had confessed his guilt and that he had kept the weapon of offence hidden and he was asked by the I.O. to come to the said place.

20. PW Rahul Sharma is owner of the STD shop, where the deceased is stated to have gone to make a call to the police and the respondent/accused appeared and occurrence took place. He has been cited as a witness to the seizure memos EXTP-3, EXTP-3/2 EXTP-3/3 EXTP-3/4, disclosure statement of the accused EXTP-7/2 and the recovery memo EXTP-7/3. However, though he has identified his signature on these memos but denied the contents on the ground that he was made by the police to sign these documents. He has been declared hostile and stated in the cross examination that he was forced by the police to make a statement against the respondent/accused. He has admitted that PW Shakti Kumar had a quarrel with accused six months back.

21. PW Neha is sister-in-law (Bhabhi) of the deceased. She has turned hostile and stated that relationship between deceased and accused were cordial.

22. PW Rakesh Kumar is brother of the deceased and brother-in-law of the accused. He also turned hostile and stated that relationship between the accused and deceased were cordial.

23. PW Nasib Singh is witness to the receipt of dead body EXTP-8/1 and seizure memo of the jewelry and undergarments of the deceased EXTP-8. In cross examination, he has also stated that relationship between accused and the deceased were cordial.

24. PW Sucha Singh is also witness to the receipt of the corpse of the deceased EXTP-8/1.

25. PW Pawan Kumar has also turned hostile and nothing incriminating could be elicited in his cross examination.

26. PW Som Nath is Patwari and has admitted the spot sketch EXTP/14 prepared by him.

27. PW Mst. Jyoti Sharma has also turned hostile.

28. PW Rajiv Mangotra is the Executive Magistrate, who resealed the sealed packets marked A, B, C & D produced by the investigating agency and admitted his certificate EXTP-17 by virtue of which said packets were forwarded for chemical examination.

29. PW Dr. Natha Ram has conducted autopsy on the corpse of the deceased and stated that he found the following injuries on her person:-

“Incised would in front of neck on right side about 1 cm right of mid line/coming downwards towards the collar bone measuring 3 cm x 5” deep with fresh blood oozing out.

Incised would over chin measuring 21/2” length x 1” bone deep starting from 1” below the lateral third of lower lip extending downwards and outwards about 2” with clotted blood with reddish clotted blood (antimortem bone).

Abrasion measuring cm x ½ cm right forearm outside dark in colour

Lacerated would over left arm inner side horizontal measuring 2” x 1” with internal fatty tissue protruding out reddish in colour.

Penetrating injury left side of upper abdomen interior axillary line 6 ½” below the left nipple deep upto the abd. Cavity. Old anti mortem caesarean section mark positive.

Abrasion over lateral side of forearm medial part measuring 1 ½ “ x 1 cm.”

30. In his opinion, death of the deceased had occurred due to massive hemorrhage leading to shock and death. He has also admitted the sketch of the weapon of offence marked ‘A’ and the post mortem report EXTP-17. He has also admitted the certificate EXPT-17/1 regarding the production of the weapon of offence.

31. PWs SI Sachinder Pal Singh & Majit Singh SHO Police Station Miran Sahib are the investigating officers.

32. This is crux of the prosecution evidence on record.

33. The appellant has assailed the impugned judgment primarily on the ground that learned trial court has failed to appreciate the evidence in the right perspective and the impugned judgment has been passed in a mechanical fashion. However, a sheer glance at the prosecution evidence would reveal that since almost all the prosecution witnesses to the occurrence turned hostile, the trial court has rather appreciated the evidence in the right perspective and the impugned judgment is well reasoned.

34. The prosecution has examined, as already stated, almost all the witnesses except the FSL experts PWs Mushtaq Ahmed Bhat, Scientific Officer FSL Srinagar and S.K. Ranzan, Scientific Officer FSL Jammu, whose statements were admitted by the respondent/accused in terms of Section 272(ii) Cr.P.C. All the prosecution witnesses including parents-in-law of the deceased, children of the deceased and real brother of the deceased have turned hostile. It is only the complainant, PW Shakti Kumar, who is stood by the complaint lodged by him and not only proved his complaint EXTP-7, but also the disclosure statement EXTP-7/2 and the consequent memo of recovery EXTP-7/3. Therefore, the entire prosecution case hinges on the testimonial potency of the complainantShakti Kumar.

35. There is no doubt that conviction can be sustained on the testimony of a sole eye witness, provided his statement is truthful and worthy of credence. However, in the present case, if statement of the complainant-Shakti Kumar is juxtaposed to the testimonies of the rest of the prosecution witnesses, cited as eye witnesses in the case, it is clear that testimony of Shakti Kumar, the complainant in the case, is neither truthful nor inspires confidence to sustain conviction.

36. PW Shakti Kumar has stated that the deceased along with her children went to the STD shop of PW Rahul Sharma, where the respondent followed her, caught hold of the deceased, dragged her out of the STD shop and attacked her with the help of a screw driver. He has also stated that parents-in-laws of the deceased were just 20-30 yards away from the place of occurrence and exhorted the respondent not to kill the deceased. However, all these alleged eye witnesses i.e. children of the deceased and the accused/respondent, PWs Master Prince and Abhishek, and parents-in-law of the deceased and parents of the accused, PWs Bishan Dass and Raj Rani have turned hostile and nothing incriminating could be elicited from these prosecution witnesses on their cross examination. Therefore, statement of PW Shakti Kumar-complainant has not been corroborated by close relatives of the deceased, stated to be witnesses to the occurrence. Even real brother of the deceased PW Rakesh Kumar and sister-in-law (Bhabhi) of the deceased PW Neha turned hostile and have not supported the prosecution case. The independent witness PW Rahul Sharma, owner of the STD shop, has also turned hostile.

37. PW Naresh Kumar, initially in the chief examination supported the prosecution version to some extent by stating that accused and deceased used to quarrel with each other and that a report had been lodged in the police station to the effect that the appellant had killed the deceased with a screw driver and fled away, but in cross examination he has clarified that he was telephonically informed about the occurrence by one of the family members of the accused and he was told in the police station by SHO that accused had killed the deceased, therefore, PW Naresh Kumar also turned to be a hearsay witness and the testimony of hearsay witness is also not admissible in evidence unless corroborated on material particulars by other prosecution witnesses.

38. Sight cannot be lost of the fact that occurrence is alleged to have taken place in the market at STD shop, which is ordinarily frequented by the people. A perusal of the cite map would also show that there were houses and shops around the place of occurrence, but the investigating agency has not cited any independent witness from the place of occurrence in support of its case.

39. Another glaring contradiction in the prosecution evidence is that PW Shakti Kumar has stated that respondent/accused surrendered before police on 12.10.2008 whereas as per the memo of arrest the accused has been arrested on 07.10.2008 i.e. after about one year of the occurrence and the weapon of offence i.e. screw driver has been recovered on 12.10.2008.

40. Learned counsel for the appellant has also submitted that respondent after commission of crime fled from the spot, absconded and could be arrested after about one year of the occurrence, which is sufficient to conclude that he had committed the crime. We do not subscribe to the opinion of learned counsel for the appellant as it is a trite position of law that mere abscondance by itself does not lead to the conclusion that offence has been committed by the accused, unless corroborated by other evidence. The reliance placed by the learned Trial Court in this regard is well founded as the Hon’ble Supreme Court in State through CBI Vs. Mohinder Singh Dahiya 2011 (1) RCR (Criminal) 706, [LQ/SC/2011/164] relying upon Matru alias Girish Chandra Vs. The State of Utter Pradesh 1971 (2) SCC 75, [LQ/SC/1971/167] has ruled as under:-

“Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind-Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self preservation.”

41. A similar view has been taken in Matru alias Girish Chandra’s case (supra) in the following words:-

“The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.”

42. Having regard to what has been discussed herein above, we do not find any merit in the present appeal. The impugned judgment has been passed by the learned trial court after appreciating and analyzing the prosecution evidence in the right perspective. The judgment is well reasoned and we have not been persuaded to take a view different from the one taken by trial court.

43. Having regard to the aforesaid discussion, the present appeal being devoid of any merit, is dismissed. Consequently, the impugned judgment is upheld. Record of the trial Court be returned henceforth.