Jammu & Kashmir High Court

State Of Jammu And Kashmir vs Raj Kumar And Another on 19 July, 2021

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                             ....
                       CRAA No. 193/2013
                                                     Reserved on:13.07.2021
                                                  Pronounced on:19.07.2021


State of Jammu and Kashmir
                                                     ............... /appellant(s)
                               Through: Mr. Aseem Sawhney AAG
                         Versus
Raj Kumar and another
                                                           ......Respondent(s)
                                  Through: Mr.S.K.Anand Advocate
CORAM:
     HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGEMENT

1 This appeal has been filed by the State against the judgment dated

31.05.2013 passed by the learned Principal Sessions Judge, Jammu in case

titled 'State vs Raj Kumar and ors (hereinafter referred to as the 'Appellate

Court') whereby the conviction and sentence recorded by the learned Judicial

Magistrate First Class, Akhnoor (hereinafter referred to as the 'trial Court')

against the respondents herein, has been set aside, thereby acquitting the

respondents herein.

2 Briefly stated the facts are that on 06.07.2003, the complainant, who

was admitted in SDH Akhnoor, made a statement before the Police that on

05.04.2003 while he was cultivating his land, accused persons, namely, Raj

Kumar, Pratap Chand, Dhian Chand sons of Barita Ram, Kishore Kumar son

of Dhian Chand, Pawan Kumar son of Partap Chand, Anant Ram and Babu

Ram sons of Chattru Ram entered upon his land and threatened the

complainant as to why he was ploughing the land. He felt scared and ran away

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from the spot. Thereafter, the father of the complainant brought the said

incident to the notice of the residents of the area, who formed a committee and

came on the spot. The respondents herein along with other accused persons

formed an unlawful assembly and in pursuance of their common object, they

came on the spot and attacked them and pelted stones upon them.

Respondent/accused Raj Kumar gave blow on the head of father of the

complainant and his brother due to which both of them received injuries. They

ran away from the spot in order to save their lives, otherwise they would have

been killed. Thereafter, they were taken to SDH Akhnoor for treatment.

According to the prosecution, the complainant, his father and his brothers

were attacked by respondent Raj Kumar and other accused persons. The

police registered the case against the respondents herein and other accused

persons and submitted final report before the learned trial Court where the

prosecution led evidence and examined PWs Bal Krishan, Tulsi Ram,

Kuldeep Raj, Kali Dass, Vinod Kumar, Lal Mohd, Tasadaq Hussain and

Dr. Raman Bhagat as its witnesses.

3 The trial court, after appreciating the evidence, came to the conclusion

that the prosecution has miserably failed to prove the charge against the

accused Kishore Kumar, Pawan Kumar, Anant Ram and Babu Ram and

acquitted them, but, on the basis of said evidence recorded during the trial

held that the charge has been proved against the respondents and convicted

them for having committed offence punishable under Section 325 RPC read

with 34 RPC and sentenced him to undergo simple imprisonment for a period

of two years and to pay a fine of Rs.1000/-, also convicted him for having

committed offence punishable under Section 324 RPC and sentenced him to

CRAA No.193/2013

undergo simple imprisonment for a period of one year and to pay a fine of

Rs.1000/-. He was further convicted under Section 323 RPC and sentenced

him to undergo simple imprisonment for a period of six months and to pay a

fine of Rs.1000/-. Respondent No.2 was convicted under Section 325 RPC

read with Section 34 RPC and sentenced him to undergo simple imprisonment

for a period of one year and to pay a fine of Rs.1000/-. As far as accused

Partap Chand is concerned, he died during the pendency of trial.

4 The said conviction and sentence was challenged before the Appellate

Court and the said Court, after appreciating the evidence, found that the

prosecution has failed to prove the charge against the respondents herein and ,

accordingly, set aside the conviction and sentence recorded by the trial Court

and acquitted them.

5 Against the said order of acquittal passed by the appellate Court, this

appeal has been filed by the State on the ground that the prosecution has

established the guilt of the respondents beyond any reasonable shadow of

doubt and the Appellate Court i.e the Court of learned Principal Sessions

Judge, Jammu has not properly appreciated the evidence brought on record,

ignored the material witnesses and acquitted the respondents. It is submitted

that on this ground alone, the impugned judgment passed by the Appellate

Court is liable to be set aside.

6     Heard and considered.

7     Mr. Aseem Sawhney, learned AAG appearing for the appellant-State

submits that the prosecution has fully proved its case by leading cogent

evidence as such there is no ground to disbelieve the statements of the eyes

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witnesses who were present on the spot. On the other hand, Mr. Anand,

learned counsel appearing for the respondents submits that the Appellate

Court while fully appreciating the evidence on record, has rightly acquitted

the respondents herein.

8 The allegation against the respondents/accused was that respondents

along with other accused persons with common criminal intention attacked the

complainant, his father and brother and caused injuries to them. In order to

prove this allegation against the respondents, the trial Court has relied upon

the evidence of PW Bal Krishan, PW Tulsi Ram PWs Kuldeep Raj, PW

Vinod Kumar and PW Kali Dass. PW Bal Krishan has deposed that there was

dispute between the complainant and the respondents regarding the land due

to which the residents of the village went on the spot for inspection of the

place of dispute. The respondents along with other accused were summoned

through chowkidar. They came on the spot and respondent Raj Kumar caught

hold of the complainant and started beating him. The accused persons also

gave beating to both the brothers of the complainant and his father and they

received injuries. He has no where stated that the respondents had caused any

injury to the prosecution witnesses with any sharp edged weapon. PW Tulsi

Ram has deposed that he had already filed a case against the respondents in

which they were acquitted. He further deposed that the respondents herein had

also filed criminal cases against him in which he was also acquitted and one

of the cases is still pending disposal in the Court of law. PW Kuldeep Raj and

Vinod Kumar who are the sons of PW Tulsi Ram have also deposed verbatim,

as P.W Tulsi Ram stated in his evidence. PW Kali Dass is the person who also

came on the spot along with members of the committee to resolve the land

CRAA No.193/2013

dispute between the complainant and the respondents herein. He has not

supported the prosecution story and, thus, has been declared as hostile by the

prosecution. He has deposed that he never saw PWs Tulsi Ram, Vinod Kumar

and Kuldeep Raj injured and the respondents did not attack them.

9 The trial court after appreciating the entire evidence on record

while convicting the respondents herein, has observed as under :-

"It appears to me that witness being in relation to both the parties have played safe i.e. has stated nothing against the accused persons. But the whole of the statement cannot be thrown out. The statement to the extent that accused Dhian Chand and Raj Kumar were present on spot. When he reached there is very vital one, and corroborates the statements of the other witnesses i.e. Tulshi Ram/Dass, Vinod Kumar and Kuldeep Raj. Although these witnesses are in relation to each other but they are natural witnesses, who were present on spot. Their statement cannot be thrown out only because of reason that they are in relation to each other. I have also gone through the law i.e. AIR 2003 SC SCC 2009 "Criminal" Page 339 and SCC 2009 Vol-I "Criminal" Page 1440 and considered the same.

Counsel for the accused has submitted cited KJL 2005 Page 216 and KJL 1998 Page 680. Considered.

Thus keeping in view the facts of the case and in particular the evidence led by the prosecution, I am of the view that the prosecution has been able to prove its case against accused Raj Kumar and accused Dhian Chand.

However, the involvement of the other accused persons namely Kishore Kumar, Pawan Kumar, Anant Ram and Babu Ram is unreliable and accordingly they are given the benefit of doubt and are acquitted of the charges. It is pertinent to mention here that accused Partap Chand has died during pendency of trial of the case.

Accused Raj Kumar is convicted u/s 325 RPC read with section 34 of RPC and is sentenced to undergo simple imprisonment for 02 years and a fine of Rs. 1000/-. He is further convicted under Section 324 RPC and shall undergo simple imprisonment for a period of one year and a fine of Rs. 1000/-. He is also convicted under Section 323 RPC shall undergo simple imprisonment for a period of 06 months and a fine of Rs. 1000/-. Total fine imposed on accused Raj Kumar is Rs. 3000/-. All the sentences shall run concurrently.

CRAA No.193/2013

Accused Dhian Chand is convicted under Section 325 RPC read with section 34 of the RPC and is sentenced to undergo simple imprisonment for one year and a fine of Rs. 1000/-. It is made clear that keeping in view the age of 55 years and health condition of accused Dhian Chand, he is given lessor punishment.

If accused No. 1 Raj Kumar fails to deposit fine amount he shall further undergo simple imprisonment for 03 months and if accused Dhian Chand fails to deposit fine amount of Rs. 1000/- he shall further undergo, the simple imprisonment for one month.