State Of Jammu And Kashmir vs Raj Kumar And Another

Vinod Chatterji Koul, J

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 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 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 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 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 “Criminalâ€​ Page 339 and SCC 2009 Vol-I “Criminalâ€​ 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.

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.

The charges under Section 336 and 147 RPC have not been proved against any accused hence all the accused persons are acquitted under

these offences.â€​

10 There is no reason to accept the version in respect of some of the accused and reject the same version in respect of the other accused persons.

The trial court, while convicting the respondents on the basis of evidence produced before it, has while disbelieving the same set of evidence, acquitted

rest of the accused. The Appellate Court, in its judgment, after taking into consideration the evidence as a whole and after proper appreciation of

evidence, has come to the conclusion that the prosecution has failed to prove the case against the respondents.The conclusion that the prosecution has

failed to prove its case against the respondents is inevitable and since there is no sufficient evidence against the respondents, therefore, charge framed

against them cannot be said to have been proved. There is no illegality committed by the Appellate Court in appreciating the evidence and framing the

conclusion on the basis of evidence produced before the trial Court, therefore, has rightly acquitted the respondents.

11 In view of above, it is held that there is no illegality in the order passed by the Appellate Court, as such, while upholding the order of acquittal

passed by the Appellate Court, this appeal is dismissed. Bail bonds and personal bonds of the respondents herein shall stand discharged. Trial Court

record, if summoned/received, be sent down along with copy of this judgement.