State Of J&K Through Sho Police ... vs Sukhdev Sharma
2023 Latest Caselaw 2347 j&K

                                                                  Sr.No. 15



            HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                     CRAA No.116/2014


State of J&K through SHO Police Station                 ....Petitioner(s)/Appellant(s)
Udhampur


                 Through :- Mr. Dewakar Sharma, Dy.AG.

V/s

1.     Sukhdev Sharma S/o Bal Krishan                             ....Respondent(s)
      R/o Samroli Tehsil and District
      Udhampur
2.     Ashwai Kumar S/o Radha Krishan
      R/o Lambi Gali, Udhampur.

                Through :-    Mr. Farhan Mirza, Advocate.

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

                                  JUDGMENT

(19.10.2023) ORAL:

01. Challenge in this appeal has been thrown to judgment dated

30.09.2013, propounded by learned Additional Sessions Judge, Udhampur ( for

short, trial Court), vide which respondents have been acquitted of the alleged

charges under sections 332/333/506/427/34 of Ranbir Penal Code, 1989 (for

short, RPC).

02. Before a closer look at the grounds urged in the memo of appeal, it

shall be apt to have an overview of the background facts.

03. As the prosecution story would unfurl, on 10.07.2007, Bansi Lal, TSO

Udhampur, lodged a report that a team of CDP and PD Department had

conducted inspection of various tea stalls, Dhabas and sweet shops from TCP

Udhampur to Samroli. It was found that rate lists of essential commodities were

not displayed, therefore, violators were fined and fine amount was deposited in

the Government Treasury. It was alleged by the complainant that on 11.07.2007,

some miscreants barged into his office, and started abusing his staff. He was

manhandled and was beaten with fists and blows and his office was ransacked.

On the receipt of this report, aforesaid FIR came to be registered against the

respondents and investigation of the case was assigned to SI-Padamdev Singh.

04. It surfaced during investigation that pursuant to the directions of Dy.

Commissioner, TSO had conducted checking of shops from Samroli to

Udhampur during which many shopkeepers were fined for having not displayed

the rate lists of the commodities. It came to the light that respondents, on account

of this enmity, forced their entry into the office of the complainant on

11.07.2007 at about 10'O clock and committed the offence as mentioned above,

while complainant was discharging his official duty. Investigation of the case

culminated into filing of final report envisaged under Section 173 of Cr.P.C.

05. Respondents were charged by the trial Court for the aforesaid offences

whereby they pleaded not guilty and claimed trial prompting the trial Court to

ask for the prosecution evidence. Prosecution has examined almost all the

witnesses cited in the challan to substantiate the charge.

06. 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.

07. 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.

08. Mr. Dewakar Sharma, learned Dy.AG appearing for the appellant-State

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

09. Instead of giving a detailed resume of the prosecution witnesses, it is

proposed to be referred to the relevant parts thereof as where and when required.

10. PW Krishan Kumar, who happened to be Assistant Director, Food and

Supply, Udhampur has stated that in the month of July, 2007, he received a

telephonic message that some miscreants entered into the office of TSO

Udhampur and ransacked his office. When he entered the office of the TSO, he

did not find any person in the office, however, he was informed about the

occurrence by the staff. He saw the broken table glass fallen on the ground. A

slight injury was shown to him by the TSO-the complainant.

11. PW-Bansi Lal, the complainant/injured has deposed that 5 to 6 persons

including accused/respondents entered into his office. While respondent-

Sukhdev Sharma kicked his foot, respondent-Ashwani Kumar beat him with fists

and blows. His employees raised an alarm and accused fled away. Pertinently,

the complainant in his cross examination has stated that 5 to 6 persons including

Mulkh Raj Clerk, TSO Om Parkash, Sukhdev Sharma, Chief Inspector, Peon

were present in his office at the time of occurrence. According to him, the report

was lodged through Assistant Director. However, significantly, rest of the

prosecution witnesses have either turned hostile or are formal witnesses. PWs

Mulkh Raj, Om Parkash, Anit Verma, Tara Chand, Kamla Devi, and Vidya Devi

have turned hostile and did not support the prosecution case. PW Dinesh

Khajuria is the Radiologist and PW Dr. N.K. Gupta is the medical expert who

conducted medical examination of the injured. PW Padamdev Singh is the

Investigating Officer.

12. Therefore, the entire prosecution case hinges on the testimonial

potency of PW Krishan Kumar, Assistant Director, Food and Supplies and

injured/complainant, PW Bansi Lal. As a matter of fact, even PW Krishan

Kumar, as already discussed, is a hearsay witness as he has been informed by his

staff that respondents barged into the office of the complainant, ransacked the

office and beaten him with fists and blows.

13. Although, PW Bansi Lal has given a graphic narration of the

occurrence by stating that respondents/accused trespassed into his office, and he

was beaten by them. However, the prosecution witnesses, who happened to be

his colleagues, have turned hostile and have not supported his version on

material aspects. Although medical expert, PW- Dr. N.K. Gupta found red

bruise on right foot and suspected fracture right foot bones and red bruise on left

shoulder of the complainant, however, it is trite that in case of conflict between

the ocular evidence and medical evidence, it is the ocular evidence which gets

better of .

14. Be that as it may, failure on the part of the prosecution to prove FIR

and confront the complainant with the statement made by him, on the basis of

which FIR came to be registered, is sufficient to dislodge the prosecution case.

15. Having regard to what has been observed and discussed above, I do not

find any merit muchless impropriety in the impugned judgment which is well

reasoned and lucid and does not call for any interference. Hence, the present

appeal is dismissed and impugned judgment is upheld. Respondents are

discharged of their bail bonds. Record of the trial Court be returned.

(RAJESH SEKHRI) JUDGE

Jammu:

19.10.2023
Eva

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