State Of J&K Through vs Suresh Kumar
2023 Latest Caselaw 2275 j&K

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU


                                                               SLA No. 10/2019

                                                    Reserved on:      10.10.2023
                                                    Pronounced on:    12.10.2023

State of J&K through
SHO Police Station Hiranagar                                    ..... Appellant(s)

                     Through:    Mr. Deewakar Sharma, Dy. AG

                                         V/s

     1. Suresh Kumar
       S/o Romesh Lal @ Harbans Lal
       R/o Village Arnoha, Tehsil Hiranagar, District Kathua
     2. Anand Parkash @ Pappu
        S/o Gagi Ram
        R/o Sunkhal, Tehsil Hiranagar
        District Kathua.
     3. Rakesh Kumar
        S/o Gagi Ram
        R/o Sunkhal Tehsil Hiranagar
        District Kathua
     4. Sukhdev Singh @ Nikka
        S/o Lal Singh
        R/o Katli, Tehsil Hiranagar District Kathua.          .....Respondent(s)

                    Through: None.

CORAM:
                 HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE


                                   JUDGMENT

1. The present application has been filed seeking leave to file appeal

against judgment dated 27.02.2018 passed by learned Principal Sessions

Judge, Kathua (for short, trial court) vide which respondents have been

Page 1 of 7 SLA No. 10/2019 acquitted in FIR No. 85 of 2012 for offences under Sections 307, 323, 341,

34 of Ranbir Penal Code (RPC) of Police Station, Hiranagar.

2. An overview of the background facts is that on 20.06.2012 at 10:00

a.m., the informant Mohan Singh (PW-1) was allegedly attacked by

respondents at village Sunkhal with stones, fists and blows, as a result

whereof, he suffered grievous injuries on his head and left ear. The injured

was shifted to Hiranagar Hospital for treatment, from where he was referred

to Government Medical College and Hospital (GMC&H), Jammu for further

treatment. The statement of the injured was reduced into writing by ASI

Daljeet Singh, Incharge, Police Post, Dinga Amb, at GMC&H, Jammu, on

the basis of which, aforesaid FIR came to be registered against respondents

and investigation was entrusted to ASI-Daljeet Singh (PW-8).

3. It surfaced during investigation that accused-Suresh Kumar,

respondent No.1 herein used to abuse injured Mohan Singh on his mobile

phone. Few days prior to the occurrence, the injured confronted respondent

No.1-accused, Suresh Kumar and sought reasons for hurling abuses on him,

which was denied by accused-Suresh Kumar. On 20.06.2012, accused-

Suresh Kumar came to village Sunkhal in Matador bearing registration No.

JK02Q-6287 in the afternoon, where he met the injured and there was hot

exchange of words between the duo and the injured left the spot. However,

at about 10:00 p.m., accused-Suresh Kumar went to the house of the injured,

called him outside and when injured reached near a well, he found all

respondents-accused persons standing there who caught hold of him and

made a murderous assault by hitting him on his head with stones. The victim

fell unconscious on spot due to impact of injuries and was evacuated to the

Page 2 of 7 SLA No. 10/2019 hospital. The investigation culminated into filing of final report envisaged

under Section 173 Cr.P.C. against respondents for the aforesaid offences.

4. Respondents were charged by the trial court for offences under

sections 307, 323, 341 and 34 RPC whereby they pleaded innocence,

prompting the trial court to ask for the prosecution evidence and prosecution

has examined ten witnesses in support of the charges. After closure of the

prosecution evidence, respondents-accused in their statements under Section

342 Cr.P.C. denied the incriminating imputations arrogated to them in the

prosecution evidence by stating that false case was foisted against them and

two witnesses were examined in defence.

5. Having marshalled and analysed the prosecution evidence in detail,

the learned trial court has concluded that appellant/prosecution has failed to

establish guilt of the respondents beyond reasonable shadow of doubt, as a

result whereof, respondents were acquitted of the charges as mentioned at

the outset.

6. Appellant-State has questioned the impugned judgment on the usual

and conventional grounds that learned trial court has failed to appreciate the

prosecution evidence in its right perspective and has recorded the impugned

judgment of acquittal despite sufficient material available on record to

convict the respondents.

7. Mr. Deewakar Sharma, learned Dy. AG appearing for the appellant

State has reiterated the grounds of challenge urged in the memo of appeal.

8. Out of ten witnesses examined by the prosecution, PW-3 Romesh

Singh is witness to seizure of stone, PW-4 Kuldeep Singh and PW-5 Mohan

Page 3 of 7 SLA No. 10/2019 Singh are witnesses to arrest memo of accused, PW-6 Khazan Chand Patwari

Halqa Sunkhal is the revenue expert who has proved the revenue extracts

Ext.P-7 and Ext.P-7/1, PW-7 Dr. Ashwani Kumar is the medical expert who

has proved the medical certificated Ext.P-8 with respect to examination of

the injured-PW-1 and PW-8 Daljeet Singh is Investigating Officer. Besides

these formal witnesses, PW-9 Karanjeet Singh and PW-10 Gurnam Singh

are two other investigating officers who have conducted partial investigation

of the case. It is, therefore, evident that since out of ten witnesses examined

by the prosecution, eight witnesses are formal witnesses, therefore, entire

prosecution hinges on the testimonial potency of injured, PW-1-Mohan

Singh.

9. The case of the prosecution is that informant-Mohan Singh was

beaten by respondents/accused on 20.06.2012 by hitting him on his head

with stones causing him grievous injuries and he was also beaten with fists

and blows. However, injured PW-1 has deposed in the trial court that

accused-Sukhdev and one Kalu came to his house in the evening to explore

compromise between them. He went along with them, however, when he

reached near a well, accused-Suresh Kumar came to the spot armed with a

country made rifle which was hand over to accused-Sukhdev, who hit him

with the butt of said riffle on the left side of his head, as a result whereof, he

fell unconscious. The inured also stated that rest of the accused also beat him

with fists and blows and they fled from the spot leaving him behind in a pool

of blood. It is also stated by the injured that PW-Kalu tried to save him but

he was caught hold by accused-Sukhdev and was threatened with life. It is

pertinent to mention that statement of the injured, PW-1 was reduced into

Page 4 of 7 SLA No. 10/2019 writing at GMC&H, Jammu, on the basis of which, FIR came to be

registered against the respondents and PW-1 in his deposition has also

admitted that he had stated in his initial statement (Ext.P-1) recorded at

GMC&H, Jammu and also in his statement under Section 164-A Cr.P.C.,

recorded before the Magistrate, that respondents-accused had hit him with a

stone, besides fists and blows, resulting in grievous injuries to him.

However, injured, PW-1 in his statement before the trial court had denied

having made any such statement before the police or a Magistrate by

reiterating that, in fact, he was hit by accused-Sukhdev with the butt of rifle

on his head.

10. I concur with the observation of learned trial court that this is a

significant improvement made by injured PW-1 in his statement before the

trial court, which is sufficient to dislodge the prosecution stand that injured

was hit on left side of his head by respondents with a stone. The statement of

investigating Officer, Daljeet Singh, PW-8 also assumes significance in this

respect, as he stated that no rifle was seized by him in the case and he has

admitted that it was stated by PW-1 in his initial statement, Ext.P-1 that he

was attacked by respondent-accused No.1 with a stone.

11. As noted earlier, it also surfaced in the testimony of the injured that

PW-Kala tried to save him from the clutches of respondents but he was

caught hold by accused-Sukhdev and was threatened with life. However,

PW-2, Sikander Singh @ Kala in his testimony before the trial court has

categorically denied this fact by stating that he came to the spot on receiving

a phone call from one Rajinder Singh about the incident and found PW-1

lying on the spot in an injured condition, from where he was shifted to the

Page 5 of 7 SLA No. 10/2019 hospital. Therefore, testimony of the injured, PW-1 that PW-Kala tried to

save him from accused stands falsified. It is also pertinent to mention that as

per the prosecution case, the only eye witness to the occurrence was Rajinder

Singh whose statement was recorded before the Magistrate under Section

164-A Cr.P.C., however, he has not been produced by the prosecution during

trial.

12. For what has been observed and discussed above, it is clear that it is

the injured himself who has dislodged the prosecution case that he was hit on

the left side of his head by the respondents with a stone, fists and blows. He

has introduced altogether a new story and made a significant improvement in

his initial statement Ext.P-1, on the basis of which, aforesaid FIR came to be

registered as also in his statement recorded under Section 164-A Cr.P.C.

before the Magistrate that he was hit by respondents with a stone. If the

statement of the injured is glanced over, PW-Kala came to his house along

with accused Sukhdev for effecting compromise between them and later

when PW-1 was allegedly attacked by respondents, PW-Kalu, as per the

version of PW-1, made an endeavour to save him from the clutches of the

accused, however, PW-Kalu has categorically denied his presence at the

scene of occurrence by clearly stating that he reached the place of occurrence

only after the occurrence was over and found the injured lying on the spot

wherefrom he was evacuated to the hospital for treatment.

13. Be it noted that Investigating Officer has neither find any blood on

the spot nor seized blood stained clothes of the injured which also casts

doubt on the prosecution story.

Page 6 of 7 SLA No. 10/2019

14. Viewed thus, prosecution evidence having analysed and examined

in its entirety would not inspire confidence to sustain conviction of the

respondents.

15. Having regard to what has been observed and discussed above, the

present application filed by the appellant-State for leave to appeal is

dismissed. As a result, the proposed appeal, being devoid of any merit, is

also dismissed and impugned judgment is upheld.

16. Respondents are discharged of their bail bonds.

(RAJESH SEKHRI) JUDGE JAMMU:

12.10.2023
Paramjeet

                         Whether the Judgment is speaking?         Yes/No
                         Whether the Judgment is reportable?       Yes/No




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