State Of Jammu & Kashmir vs Mohinder Pal And Others

Mohan Lal, J

Instant Acquittal Appeal is directed by appellant against the Judgment dated 24.01.2018 rendered by the Court of Learned Additional Sessions Judge Kathua in file no. 06/71 Sessions titled State vs. Mohinder Pal & anr. bearing in FIR No. 43 of 2003 of P/S Kathua, whereby, respondents/accused have been acquitted of the charges framed against them for commission of offences punishable under Sections 307/224/326/24 RPC.

Being aggrieved of and dissatisfied with the impugned judgment, appellant has questioned it’s legality, proprietary and correctness and has sought its setting aside/quashment and further seek conviction of respondents/accused on the following grounds:

(i) that there is sufficient material on record to convict respondents/accused, Learned Trial Court has failed to appreciate the law, facts and evidence of the prosecution in its right and true perspective;

(ii) that the prosecution has established the case against respondents by adducing evidence which is sufficient to hold the respondents/ accused guilty of commission of offences attributed to them;

(iii) that the learned trial Court has failed to appreciate the prosecution evidence and has drawn conclusion which is against the weight of evidence as the occurrence has been proved.

Allegations against the respondents/accused as emerged out in the charge sheet laid before the Court of Ld. Additional Sessions Judge Kathua are, that on 20.02.2003 complainant Pawan Kumar (PW-1) lodged a written report in police post Mehreen to the effect that on 20.02.2003 at 4:00 pm in his presence his brother-in-law was working in his proprietary land, after few minutes accused came on spot having a Kai (Spade) in his hand, they assaulted his brother-in-law with the intention of killing him and gave 5/6 blows one by one on his head, whereby his brother-in-law became unconscious, the accused also inflicted beatings to him with fists and blows. On the aforesaid allegations FIR no. 43/2003 for commission of offences u/ss 307/34 RPC were registered against respondents/accused. During investigation I/O collected the evidence and laid charge sheet against the respondents/accused for commission of offences under Sections 307/326/324/34 RPC in the Court of law.

Charges against respondents/accused for commission of offences under Sections 307/326/234/34 RPC were framed by the trial court of Ld. Addl. Sessions Judge Kathua on 19.12.2003. Charges were read over and explained to the accused who pleaded not guilty to the charges and claimed trial. The prosecution in a bid to substantiate charges against respondents/accused, out of total 9 witnesses listed in the charge sheet, examined only 06 witnesses namely, PW-1 Pawan Kumar (eye witness), PW-2 Nathu Ram (injured eye witness), PW-3 Hari Dutt (eye witness), PW-4 Taro Devi (eye witness), PW-6 Dr. Mohinder Lal (Medical witness) & PW-7 Kuldeep Raj (I/C PP Mehreen, I/O). To prove the case against respondents/accused, prosecution has led oral as well as documentary evidence. Respondents/accused did not examine any witness in defence. Prosecution examined oral witnesses as under:

PWs

Name

Role

1

Pawan Kumar

Eye witness/complainant who lodged FIR.

2

Nathu Ram

Injured eye witness.

3

Hari Dutt

Eye witness & witness to seizure of clothes.

4

Taro Devi

Eye witness.

6

Dr. Mohinder Lal

Medical witness.

7

Kuldeep Raj

SI, IC PP Mehreen (I/O).

Before coming to the conclusion whether the prosecution has substantiated charges against accused beyond hilt, it is pertinent to give a brief resume of the evidence tendered by the prosecution witnesses. The testimonies of the prosecution witnesses are summarized as under:-

PW-1 Pawan Kumar (eyewitness/complainant who lodged FIR), on 28.10.2010 has deposed that I know the accused who are present in the court and who have been exempted from their personal appearance. It happened on 20.02.2003 at 4:00 PM, Nathu Ram who is my brother-in-law, I went to see him at his home but I was told from his home that he is working in the field. I went there in the field. As soon I reached in the field, accused Darshan Lal who is present in the court, came there having a Spade (kai) in his hands, he had given 4/5 repeated blows on the head of my brother-in-law Nathu Ram. He fell down on the ground. On my vociferation, my sister i.e. wife of injured Mst. Taro Revi and son Hari Dutt reached on spot. Thereafter, we took Nathu Ram at Police Post Marheen, report recorded and injured was referred to Hospital for treatment by the police. One bed sheet bearing sky colour was seized by the police in the Hospital, wherefrom he was referred to Jammu Hospital for further treatment. After lapse of two months, I went to Marheen Police Post, accused Darshan Lal was present there and weapon of offence spade (Kai) was seized from accused Darshan Kumar, same was produced by accused Darshan Kumar before the police. The seized weapon of offence Spade (kai) and Chadar (bed sheet) have been shown to me in the court. I identify the same, which was seized by the police in my presence. The application by virtue of which FIR was lodged, appended with the file bears my signature. Its contents are correct and I identify the same. Same is marked as EXT-1-PK. Seizure memo of Towel and Bed Sheet is also available with the file, its contents are correct, it bears my signature. I identify the same. It has already been marked as EXP-W-HD dated 14.12.2007. The contents of seizure memo of weapon of offence Spade (kai) is correct, it bears my signature, I identify the same and is marked as EXT-1-PK1. The L/C for accused objected that the seizure memo of spade (kai) is not admissible in evidence, as it cannot be proved. No further question was put to the witness. In cross-examination, the witness deposes that when we took the injured to Police Post Marheen, he was sitting there and report was recorded. I along with 4 persons including Hari Dutt and PW-Taro Devi and some other unknown persons took the injured at Police Post Marheen from the place of occurrence. The injured was smeared with blood and was unconscious due to injuries he fell down being unconscious. Accused Darshan had given blows with spade while the injured was unconscious. Police Post Marheen is situated at a distance of 02 Kms away from the place of occurrence. My wearing apparels and of Taro Devi and Hari Dutt bearing blood stains due to taking the injured at Police Post Marheen in the injured condition, the report was lodged in writing, it was written by a shopkeeper at Sanji Morh, I do not know his name. The said application bears my signature, Taro Devi and Hari Dutt. The report was written by shopkeeper at 7:30 to 8 PM and same was lodged in the police post. Police entered the report in the Police Post and no other proceedings were conducted there. Again stated that at the time of lodging the report police recorded my statement, Taro Devi and Hari Dutt. The police obtained our signature on that report. It was the register and we were asked to put our signatures on that register. Thereafter, we took the injured to hospital at 8:00 Pm from Police Post and at 10:30 the injured was referred to Jammu Hospital for further treatment. The injuries were on the head and accused Darshan had caused injuries on the body with a Spade (Kai). Mohan Lal was not having any lathi (danda) in his hand. However, he was beating with fists and blows. Accused Mohinder was beating with Darat and he had caused injuries on the arms, legs and back of the injured, blood was oozing out from the injuries. We had written in EXT-1-PK that accused Mohinder Pal had beaten the injured Nathu Ram with Darat, accused Darshan Lal with spade (Kai) and accused Mohan Lal with fists and blows. Total number of injuries on the body of the injured was 35/40 and out of which 30/35 were with sharp edged weapon and rest of the injuries were caused with fists and blows. Report EXT-1-PK reveals that Mohinder Pal has given 5/6 blows with Spade (kai) to injured is not correct but it was caused by accused Mohinder Pal with Darat. It is correct to say that application does not reveal any reference of beating by Darshan Lal with spade (kai) to the injured. It is also correct to say that it has not been mentioned in the application regarding the blow given with drat by the accused Mohinder Pal, it does not reveal about the beating with fists and blows by the accused Mohan Lal. It is correct to say that EXT-1-PK does not bear any reference that on his hue and cry PW-Taro Devi, Hari Dutt alongwith other 4/5 persons reached on the spot and EXT-1-PK does not reveal the presence of any of the witness on the spot. It is also correct to say that injured was lying on the spot in unconscious condition and I went to the police post for reporting the matter, but it is correct to say that I had taken the injured Nathu Ram alongwith me and matter was reported in the police. It is incorrect to say that injured Nathu Ram is lying on the place of occurrence in unconscious condition and report was lodged in the police post has been wrongly mentioned in EXT-1-PK that accused Mohinder Pal had given 5/6 blows of Spade (kai) on the head of the injured, is not correct. However, he had given blow with darat and it has also been wrongly recorded in my statement u/s 161 Cr PC that accused Mohinder Pal had given 5/6 blows on the head of Nathu Ram with Spade (kai), is not correct. The statement recorded u/s 161 Cr.PC attributed to me does not reveal that accused Darshan had given 5/6 blows with Spade (kai) on the head of the injured, why it has not been recorded, is not known to me. In my statement recorded u/s 161 Cr.P.C. it has not been written that accused Mohan Lal had beaten with fists and blows. I do not know why it has been recorded. A case is pending between injured relating to land dispute. Both the parties are claiming upon the same land. The dispute is relating to land, but I do not know whether injured has obtained any stay order from any civil court against the accused with regard to the land in dispute or not. The land has been partitioned among the parties. At the time of occurrence, I was standing at a distance of one feet away from the place of occurrence. At the time of assault on the injured, I was standing there. The PW-Taro and Hari Dutt did not attempt to save the complainant from the clutches of the accused. EXT-1-PK1 reveals that the spade has been produced by accused Mohinder Pal whereas it was produced by accused Darshan Lal. It is correct to say that I alongwith my wife was going to Chadwal by a matador and when we reached near Marheen Police post, the injured was lying on the road in the injured condition. Police boarded him in the matador by de-boarding the other passengers and injured was boarded in the matador and he was taken to hospital. No further question is put to the witness.

PW-2 Nathu Ram (injured/eyewitness) has deposed on 09.11.2014, that on 20.02.2003 he was working in his field. Accused Mohinder Pal and Darshan shouted to put me to the death. Accused Darshan Lal caught me hold and he started beating me with fists and blows. Accused Mohinder had a spade (kai) and he had given 5/6 blows on my head due to which I fell down on the ground, become unconscious and accused fled away from the spot. My family members took me to police post Marheen and matter was reported. Police asked to take me at Hospital Kathua because I was unconscious, thereafter, I was referred from Kathua to Jammu. I remained under the treatment for a period of 01 month at Jammu and I become conscious at my home. On 22.4.2003, I alongwith Pw-Pawan Kumar came to police post to enquire about the case, then chowki officer Kuldeep Kumar showed the spade (kai) to me and a seizure memo thereof was prepared. It bears my signature, same has been shown to me in the court, I identify my signature, its contents are correct, it has already been marked as EXT-PK/1. No further question was put to the witness. In cross-examination, the witness deposes that my quarrel with the accused is due to the dispute of the land. I do not remember the Kh. No. of the land and how much it is, is not known to me. It can be explained better by the Patwari, I do not know. I had not given any document to the police, obtained by me from the Patwari. I claim upon that land and accused are also claiming the same land. Raj Pal is my brother-in-law and he did not make any partition of the land, Naib-Tehsildar did not come on the spot for recording my statement. I had never adduced any such affidavit. The affidavit shown by the counsel for the accused to him attested with notary on 10.12.1998, bears my signature, contents have been read over and admitted as not correct. It bears the signature of my brother-in-law Raj Pal and brother Khem Raj, I do not have any knowledge about it. I know the advocate Ranjit Singh notary. It is incorrect to say that I want to occupy the land of the accused forcibly and a suit was filed by the accused Darshan Lal against me and stay order thereof was issued, is wrong. It is also incorrect to say that the partition made by Raj Pal, I had a land of 01 Kanal in excess of my share, which was handed over by me to the accused after removing my chhan, onion and garlic presently is in my possession, is not correct. It is incorrect to say that the said land is not in my possession and it is in possession of the accused. It is also incorrect to say that I want to get the same land again for raising a chhan on that portion. It is also incorrect to say that I want to take the possession of said land illegally for raising the chhan. I was working in my land and after sustaining injuries, my wife Taro Devi and son Hari Dutt were reached on the spot. The quarrel continued about quarter an hour. My land is situated at a distance of 01 furlong away from my house. The land of Sat Pal, Bhola Ram and Bodh Raj is situated adjacent to my land where I was working. It is incorrect to say that there is a house of one Krishan Dev near the place of occurrence. Police Post is located at a distance of 04 Km away from the place of occurrence. The road is situated at a distance of 01 Km away from the place of occurrence, wherefrom I was brought and boarded in the matador to reach at the Police Post. The matter was reported at police post. The report bears my signature and of Pawan Kumar. Report pertains to instant quarrel, I alongwith Pawan Kumar remained present about 02 hours at police post till completion of proceedings of the police. I was brought to District Hospital Kathua through the matador, wherefrom I was referred for treatment at Jammu within a time space of ½ minute. In the matador I alongwith Pawan Kumar family members and others went to Jammu Hospital. Accused Darshan Kumar beaten me with fists and blows on my legs, mouth, nose, arms and eyes due to which blood was oozing out and swelling and abrasion was on the body. The injuries 30/40 were caused by accused Darshan Lal for which I was given treatment by the doctor. Pw-Pawan Kumar is my brother-in-law and he is resident of village Sesman. It is incorrect to say that on the alleged day of occurrence Pw-Pawan alongwith his wife was going to his village in the said matador and when the said matador reached near the police post Marheen, it was stopped by the police and passengers were de-boarded and I was taken to hospital by that matador. I know the Pw-Govind Kumar, we was present on spot at the time of occurrence. He had seen the occurrence as eye witness. It is correct to say that my wife and my son and Pawan Kumar have been arrayed as witness and their statements have been recorded. I do not know whether my son is present in the court today and he has brought me today in the court, I was also brought for recording my statement yesterday and when I come to the court, he brings me for recording my statement. However, I was not told by him about recording my statement in the court. I do not know whether statement of my wife have been recorded about 03 years ago in this case or not. My wife alongwith me is here today. The witness deposes that if the land in dispute be returned to me, the instant case can be settled. It is correct to say that due to my abnormal health, I could not get recorded my statement. The spade (kai) is to be available in every house. Chowki officer had told me that I was beaten with this spade (kai) and same was seized, nothing more was told to me. I returned back from GMC Jammu on 22.4.2003, again stated that I came back after lapse of 01 month. None of my statement was recorded by the police relating to instant complaint. I am stating first time in the court regarding the occurrence. Khem Raj is my brother, I assaulted him and his son, is not correct. I do not know whether Khem Raj was remained admitted in the Hospital at Jammu or not. I do not know whether any case was pending before the court at Hiranagar nor not relating to alleged assault. The witness admitted that case was pending in the court and I attended the court. I do not know whether Pw-Pawan Kumar had given statement as witness on my behalf or not. It is incorrect to say that accused did not cause me injuries. It is incorrect to say that in order to obtain the land from the accused I am pressurizing them and a false case has been lodged by me against the accused. It is also incorrect to say that injuries were caused to me by someone else and not by the accused and I am doing only to harass them. The report was lodged at police post by Pawan Kumar, it bear our signature.No further question put to the witness.

PW-3 Hari Dutt (eyewitness and witness to seizure of clothes) has deposed on 14.12.2007 that I know the accused. They are my cousins. It was happened on 20.02.2003, my father was working in the field and I was also working in the adjacent field. My maternal uncle Pawan Kumar was with my father and by evening at 4 PM, my mother too came there. The accused alongwith other co-accused assaulted on my father, having a kai (spade) in his hand. The other accused Darshan too have a spade in his hand. Accused Mohan Lal having a danda and all the accused attacked on my father and given 5/6 blows with the said spade (kai) on the head of my father and fled away from the spot. We took the father in injured condition at DH Kathua wherefrom he as referred to Jammu and remained under treatment. Police had seized 01 towel, 0l bed sheet and prepared memo. I had signed the memo marked as EXPW-HD. No further question was put to the witness. In cross-examination, the witness deposed that the field is situated at a distance of 50 feet away from my home where the occurrence had happened. Our family consists of 05 persons. At that time, I was alongwith my father in the field and I was cutting grass, my mother took some dung in the field, my father was there to look after the field. The place where we were working bears the same khasra number of land. We have only 01 field. We were working there at 4 PM. Pawan Kumar reached in the field at about 3:30. The accused reached on the place of occurrence after lapse of ½ an hour of our arrival in the field. The field of the accused is towards East, again stated that towards North. The accused came there with their preparation by shouting to put to the death. The house of the accused is located near the field and our house is situated away at some distance from the field. Adjacent to our field, the field of others are also situated there but none of them was working there at that time. The field of Bodh Raj is situated ahead to our field, again stated that there is field of one Sat Pal S/o Sian Dass. The field of Bhola Ram is situated there, all these persons were not working at that time because there was no season of working in the field. I and PW Pawan maternal uncle went to lodge the report at police post Marheen. The said police post is situated at a distance of 1 ½ kilometre away from the place of occurrence. We went there by a matador, report was given to chowki officer in writing, same was recorded by him and we had put the signature on the register. On this chowki officer alongwith me and Pawan Kumar maternal uncle came on the spot. When we reached at the place of occurrence, the mother and father was lying in the field. My mother had taken my father in his lap, blood was oozing out, the wearing apparels of my father were smeared with blood. I and maternal uncle took my father from the place of occurrence and our wearing apparels were also got blood stained. We took the father in injured condition with the help of police constable at the vicinity of road, wherefrom boarded in the matador. The distance from place of occurrence to road is 300 meters. The matador was boarded with passengers and going to Sesman, which was de-boarded and took the injured to Hospital. In that matador the wife of Pw-Pawan Kumar was also travelling, she went to her home. It is not correct to say that Pw-Pawan Kumar was travelling in that matador, as it is asked. I alongwith my mother Pw-Pawan Kumar and police personnel came to Kathua hospital where form injured was referred to Jammu. The towel and bed sheet were seized at police post Marheen, seizure memo was prepared there, we had put the signature on the seizure memo, the wearing apparels of my father was also seized there alongwith our wearing apparels which were bearing blood stains. I alongwith my mother and Pw-Pawan went to Jammu from Kathua and we remained about 0l month there. My statement was recorded by the police and it was told by us that at the time of occurrence where I, my mother and Pw-Pawan Kumar were standing. The distance between the accused and us was ½ feet but when the accused came in their field there was a distance between us and accused was 50 meters, wherefrom they shouted and saying to put to the death. The statement recorded u/s 161 Cr.P.C does not disclose that Mohan Lal brother of the accused came there having a lathi in his hand and he too had beaten to my father. The accused Darshan was having a kai in his hand, who had given blow with the kai. The statement has been read over and explained to the witness. I do not know the reason why police did not record so. Govind Ram came on the spot and he had witnessed the scene. Accused Mohan had given blow with lathi on the legs, arms, back and belly of my father, about 20-25 blows were given. There was swelling on the legs and abrasions on the body. These injures have been treated/cured in the hospital at Kathua and Jammu. The accused Darshan had given 4/5 blows with the kai on the head of my father and accused Mohinder had also given a blow on the back portion of head of my father and accused Mohinder had given 5/6 blows with kai on the head of my father. Police has seized the (kai) and drat from the possession of the accused, again stated that drat and kai was not seized from the spot and after lapse of 5/7 days, theses were taken from the houses of the accused and seizure memo was prepared. One drat and one kai were seized. The lathi has not been seized. Statement u/s 161 Cr.P.C. has been read over and explained to the witness which does not reveal that accused Mohinder had any drat and spade (kai) in his hand, which was used for causing injury. Police did not record such fact, reason is not known to me. It has also not been recorded in the statement that accused Darshan had spade (kai) in his hand and injury was sustained by him. Nothing like has been recorded in the statement, reason is not known to me, however, I had mentioned this fact in my statement. It has not been recorded in the statement that accused Mohan had a lathi in his hand and he had given 15/20 blows, no such fact has been recorded. It is incorrect to say that my father's sister's husband had made partition of the land in dispute. Land is in our possession since long. It is not correct to say that the land of the accused is ahead to our land towards North. It is not correct to say that in the year 1998 an attempt was made to occupy the land regarding which a civil suit was filed against us. I do not know the Kh. No. of the land in dispute whether its Kh. No. is 375/80 or not and I also do not know whether any stay order was issued or not. The accused had given an application against us before Tehsildar Hiranagar in the year 1998, by virtue of which Naib Tehsildar came on the spot, as it is asked. It is also incorrect to say that we were bent upon to raise a chhan on the land of accused. It is also incorrect to say that my father had given an affidavit to Khem Raj mentioning therein he is in possession of his own share and not interfering with the shares of the accused. It is also incorrect to say that the affidavit was filed in the year 1998. It is also incorrect to say that prior to occurrence my father was bent upon to raise a chhan upon the land of the accused, which was resisted by the accused and quarrel happened. It is also incorrect to say that my father fell at the time of raising chhan and sustained injuries. It is also incorrect to say that I was not present on the spot at the time of occurrence alongwith others, as it is asked. I am giving a true and correct statement. No further question was put to the witness.

PW-4 Taro Devi (eyewitness) has deposed on 23.05.2011 that it happened on 20.02.2003. My husband went to work in the field and he did not returned up to 4 PM. We went to see him and when we reached there, we saw that accused Darshan and Mohinder were quarrelling with my husband. Mohinder had a spade/key, in his hand and he had given 5/6 blows with Spade on the head of my husband. Darshan caught him hold and beating with fists and blows. When Pawan and Govind reached on spot, accused were fled away. Prior to my arrival, my son reached on the spot. Again stated we reached together. Pawan and Govind reached on the spot, after our arrival there, when the quarrel was over. I Identify the accused. PW Pawan who is my brother went to Police Post. My husband was taken to District Hospital Kathua, where from he was referred to Jammu Hospital. Police recorded my statement on next day after the occurrence in the field. The Spade shown to me in the court is same which was used in the commission of offence. No further question was put to the witness. In cross-examination, the witness deposes that, my field is situated at a distance of 5 minutes journey from my house. My son reached on the spot about 2/3 minutes prior to my arrival. Accused Mohinder had caused all the injuries by giving 6/7 blows on the head. There was no injury on any other part of the body. In the beginning of the quarrel, when my husband received first blow he become unconscious and fell down on the ground. On the place where my husband fell down, there were bricks, stones and grits. Again stated, there was no grits, stones and bricks. Accused Darshan had beaten with fists and blows and 50-60 blows were given by him. Due to injuries, blood oozed out and there were swelling and abrasion on the body. The quarrel continues about one an hour. The accused and injured scuffled with each other. I was standing there at a distance of 4/5 feet away alongwith my son. The occurrence was seen by Govind and Pawan from a distance of 50-60 feet away from the place of occurrence. My wearing apparels and wearing apparels of my son had received the blood stains during the time of scuffle while we were saving each other. When police came on the spot, we were in the blood stained apparels. Police did not seize the blood stained clothes. On the next day, site plan was prepared on my identification and of my son. It was also told by me that where we were standing at the time of occurrence. Accused were only two. No third person was there with the accused. There is a dispute between us and accused relating to a land. However, accused had beaten without any reason. Rajpal is our brother-in-law. It is not correct to say that he ever came there for settlement of dispute and land was partitioned in three shares by him, one share was given to us, one share to accused and one share was given to Khem Raj. It is incorrect to say that we have occupied 1 Kanal land of the accused where we made a Chhan and cultivating onion and garlic there and same was returned by us after removing the Chhan, garlic and onion. It is incorrect to say that again we want to raise Chhan on the same place with a view to occupy the same illegally and accused are raising objections on this as it is suggested. It is incorrect that we want to occupy the same land on the alleged day of occurrence where accused were resisting us, in consequence whereof quarrel happened and injured received the injuries due to fall, as suggested. I cannot tell the Khasra no. of the land where occurrence happened. Only Patwari can tell it. I cannot say, if the accused will surrender the possession of that land, where we proposed to raise a chhan, the quarrel can be ended, as it is suggested. PW Pawan went to lodge the report in the Police Post. The Police Post is situated at a distance of 5/7 minutes journey from the place of occurrence. Till arrival of PW Pawan along with police after lodging the report, I along with my injured husband, son and PW Govind remained present on the place of occurrence. The blood was fell on the soil at the place of occurrence. Police saw the blood and took from there. Police reached on the place of occurrence by a matador and they took us there from to Police Post, where from we were referred to Hospital. I left for my home from Police Post along with my son. It is incorrect to say that PW Pawan and his wife were going to their village Supalma by the matador and when they reached near Police Post Marheen, the accused were lying on the road in the injured condition and waiting for the vehicle alongwith police and police get the passengers of matador de-boarded in which the PW Pawan Kumar was travelling and took the injured to the Police Post, as it is asked. Neither I put my husband in my lap while he was in injured condition nor I had given any water to him. It is incorrect to say that I, my son and PW Pawan were not present on the spot and occurrence has not been seen by us, as it is asked. It is correct to say that injured was bent upon to take the possession of the land of the accused due to which quarrel happened between them. Accused are rich and we are poor person. I do not have any knowledge as to whether prior to occurrence my husband was covetous upon to take the land of the accused in possession and stay order was also issued by the court. Khem Raj is my brother-in-law. It is correct to say that a criminal case is pending between my husband and Khem Raj before the Court at Hiranagar. I do not know grudges are existing between us and Khem Raj on the basis of this issue. On the day of occurrence, my husband went to the field for cutting grass having a sickle in his hand. Weapon of offence have been used in the quarrel and there was a scuffle between the two. There is no spade/key in our home. Again stated we have the same at my home. The agriculturists usually keep sickle and daraat for using in their fields. I alongwith my son went to field for cutting the grass. We tried to save each other during the quarrel and I and my son caught hold from the arms to both the parties with a view to separate them. We too received injuries scuffle. Adjacent to our land there is land of Khem Raj. Towards North and towards West there is land of accused. Besides Section this, the land of so many other people is also located there and none of the above persons were cutting grass from their land at that time. I do not have any knowledge whether Naib Tehsildar went there to settle our dispute with Khem Raj. It is incorrect to say that I am giving a false statement today, as it is asked. No further question was put to the witness.

PW-6 Dr. Mohinder Lal (medical witness) has deposed on 03.4.2012 in the following manner:-

“That on 20.02.2003, I examined Mr. Nathu Ram S/O Paras Ram age about 55 years R/O Hari Pur Tehsil Hiranagar at 6:15 PM under MLC No. 5013 with alleged history of assault who was brought by Babu Ram ASI, P/P Marheen bearing mark of identification black mole on the chest of the right side. I noted following injuries:-

Incised wound right parietofrontal region 6x2x1 cm bony deep/placed bleeding ++.

Incised wound right parietal region 3x1xl cm saggital plain bony deep bleeding ++.

Incised wound occipital region right side 5x2x1 cm bony deep bleeding + +.

Incised wound chin 3x2x1 cm bony deep bleeding ++.

Incised wound forehead coronal plain 9x2x1 cm bleeding ++.

Incised wound right cheek 2xlxl cm bleeding ++.

Ecchymosis both lids both sides present. Duration of injuries 1-2 hours.

Patient was referred to GMC Jammu on the advice of Surgeon Specialist on the same day. CT-Scan done at GMC No. 4830/10026 dated 20.02.2003 reported as fracture multiple communited or frontal bone floor of the right orbit and fracture or the squamous part of the right temporal bone seen.

Opinion:-

The injuries over frontal region and over right orbit forehead and right parietal region are grievous in nature and other are simple in nature caused by sharp hard object. The injury report in the file is in my own handwriting and bears my signature. It is exhibited as EXT-ML. The spade shown to me in the court is not the one which was brought to me for verification in the hospital on 05.5.2003. However, the certificate about the weapon of offence issued by me on 5.5.2003 is in my own handwriting and the diagram depicted on the certificate is that of kai (spade). The certificate is in my handwriting and bears my signature and is exhibited as EXT-ML/1. In cross-examination, the witness deposes that I am not Orthopaedic Surgeon and nor am I Radiologist. The police personnel who brought the injured told me that there was a history of assault. The injured himself did not tell me about the history of injuries received by him as to who was the author of the injuries on his person and how he got these injuries. I have the duration of injuries 1-2 hours from the fact that the injuries were fresh and bleeding the injury may bleed even beyond 1-2 hours, 5-6 hours and even more than that and injuries may be fresh even less than the period of 1-2 hours or even beyond 1-2 hours. The clotting of the blood occur within 5-10 minutes of the sustaining of the injuries. There are injuries in small vessel and in big vessels also. Almost all the injuries mentioned in the certificate are on the right side of the person. The injuries on the person of the injured can be fall with multiple falls i.e. more than one fall on sharp objects. It is not correct to say that the spade seized in this case cannot cause incised wound and can only cause abrasion in this case. The police personnel brought the injured nor did the injured himself tell so. I have not mentioned in the certificate that which of the serial injuries out of 1 to 7 are grievous and which are out of them are simple. Injury on chin with spade can be possible from either of the side of the injured or the injured is lying on surface by back side. I have not given circumference of the spade when it was shown to me on 05.5.2003. The direction of injury over the chin has not been mentioned whether it was left to right or down to upward. All the injuries on the person of the injured can be caused by sharp edged weapon other than spade (kai). The dimensions of the injuries given in the certificate are not accurate and they have been given by my approximation. I did not measure the dimension of the injuries with tape or measure or by any other mode. Injuries 1 to 4 are to the level of bone only. I have not given the direction of injury no. 6 on the cheek whether it was or it was horizontal. I have not mentioned in the certificate that I managed the injuries as medically in my certificate. There is no mention in the certificate about the treatment. I was being assisted by paramedical staff but I have not mentioned either their name or their status on the certificate. I do not find any X-Ray film or CT-Scan on the file. I did not know the injured person nor have I seen him in the court today. Injury no. 3 is also mentioned directionless in the certificate. The certificate EXT-ML/1 does not mention FIR No. of the case or MLC no. which I have given after about three months. I did not know personally the contents of the FIR nor did I read that FIR as the same was not produced before me. I did not refer the MLC also before I gave EXT-ML/1 after about three months. I do not remember whether the spade produced before me on 05.5.2003 by police was stained with blood or not. However, I have not mentioned in my certificate EXT-ML/1 that the spade was blood stained. No further question was put to the witness”.

PW-7 Kuldeep Raj (SI, IC PP Marheen, I/O) has deposed on 26.12.2014 that in the year 2003, I was posted as Incharge police post Marheen. It was happened on 20.02.2003, Pw-Pawan Kumar lodged a written report in the police post that his brother-in-law Nathu Ram was beaten by the accused who are present in the court and who has been exempted from their personal appearance with the intention of killing him and he was lying in an unconscious condition. The report was cognizable and recorded in the relevant record, same was referred to Rajbagh for lodging the FIR. Investigation came into motion and I visited on the spot. Nathu Ram was lying there in unconscious condition. He was under treatment to DH Kathua. Thereafter, site plan was prepared and wearing apparels of the injured were seized containing one bed sheet and one towel smeared with blood and thereafter injured was referred for treatment at Jammu. Injury forms were filled up, a docket was sent to MO for recording the statement of the injured, if he being in a fit state of mind. The MO has stated that he is not in a condition to record his statement. Thereafter, his statement was recorded at GMC Jammu. Medical report was obtained from Kathua hospital and challan was prepared, weapon of offence was seized. These are same which have been seized by me, seizure memo pertaining to kai bears my signature, I identify the same, however, it is not in my handwriting. It has already been marked as EXT-1-PK/1, seizure memo appended with the file relating to wearing apparels bears my signature, it has already been marked as EXPW-HD, site plan was prepared in my supervision. No further question was put to the witness. In cross-examination, the witness deposed that the report was cognizable bearing no. 16 lodged at 4 PM. The police post is situated at a distance of 10 minutes journey from the place of occurrence through motorcycle or matador. Therefore, I can say that the distance between the police post and place of occurrence is about 5/6 Kms. It is correct to say that EXT-1-PKL does not disclose the injuries. His medical examination was conducted at Kathua hospital by evening at 6 PM. Prior to the seizure of spade (kai), (weapon of offence), the accused had not made a disclosure statement, however, he himself has produced the spade before the police without any disclosure statement. I am Urdu knowing and I can write the Urdu. All the documents relating to this case have not been prepared by me because at that time I do not know the Urdu. I have learnt the Urdu after I my recruitment in the police. Due to shortage of time, documents could not be completed. It is correct to say that the time which I have spared, utilized in the investigation of the case. The injury form reveals that the injury received by the accused in the quarrel only but it has not been mentioned that who has caused the injuries and how many people were participating in the quarrel. I know the consequences of quarrel. The occurrence happened in the field. I do not know the kh. no. of that field, however, the name of the owner is Nathu Ram. The other field belongs to Mohinder Pal and Romesh Lal. I had not enquired from the Patwari that in whose possession the field was. The place of occurrence is a banna (mand). The place of occurrence is the field of Nathu Ram one side and on the other side there is a field of accused. The banna (Mand) is 1 ½ inch in width, however, it has not been shown in the paper. It is to be settled among other owners of field, they do not dig the said banna (mand) in order to amalgamate with own land. I cannot deny that the injured Nathu Ram was cutting the banna (mand) which prompted to quarrel. It is correct to say that Patwari concerned had told that in whose possession and to whom it belongs. The copy of the medical report was obtained from MLC register after lapse of 02 months. Question put by the counsel for the accused that EXT-1-PK bears the injury and it has not been mentioned whether they were grievous or simple injury and medical report was obtained after lapse of 02 months and when this cognizable report was recorded. Answer: The complainant had lodged a written report stating wherein that 5/6 blows with kai have been given on the injured due to which Nathu Ram is lying unconscious on the spot. It is correct to say that the medical report does not reveal of having use of kai. It can be told better by the doctor only, whether injuries were simple or grievous, doctor is only competent to tell about the injuries, medical report was obtained after lapse of 02 months. It is correct to say that the offence u/s 307 RPC is to be made out when the injuries were in accordance with the medical report and matter is cognizable and offence committed u/s 307 RPC, it is cognizable offence, the medical opinion was obtained in relation to injured. Pw-Taro Devi in EXT-1-PK has not seen the occurrence. Similarly, in the roznamcha report 16, it does not disclose that Mst. Taro Devi was present on the spot and was witnessing the occurrence. Site plan do not bear his signature. The seized substance containing towel and sheet does not bear the cut mark. These apparels have neither sealed nor sent to FSL. Therefore, it cannot be ascertained whose blood is on the wearing apparels and what is the blood group, whether it is of animal or human being. The report was produced before me by Pw-Pawan Kumar, it bears the signature of Pw-Pawan Kumar. No such report has been produced before me bearing the signature of Pawan Kumar and Hari Dutt, or Pawan Kumar or Nathu Ram. It is incorrect to say that any report bearing the signature of Pawan Kumar and Hari Dutt or Pawan Kumar and Nathu Ram presented before me, contents of which are not against the accused and same has not been included in the challan, from whom the report was got written by Pawan Kumar. I do not know and I had not investigated from where the report was written. I had not investigated that he is Urdu knowing and report was written by him. All the injuries mentioned in EXT-1-PK is on the head of the injured, no injury was on the any part of the body of the injured. It is correct to say that EXT-1-PK does not reveal that accused Darshan Kumar had given any injury and as per my investigation the Pw-Pawan Kumar and Hari Dutt have seen the occurrence as he has spade has been seized. It has been recorded in the statements of Pws-Pawan Kumar and Hari Dutt recorded u/s 161Cr.pc that injury was caused on the head of the injured. Govind Ram has also been arrayed as witness and he was witnessing the scene from a distance of 300 meters. Injured was taken from the place of occurrence by the police, however, it was not taken by Pws Pawan Kumar and Hari Dutt. Police had brought the injured from place of occurrence by a matador private 407. I had not enquired to whom that matador belongs and who was driver of that vehicle and on which route it was being plied. Neither I had given any fare to the matador nor police had given. The police personnel who took the injured from the place of occurrence has not been arrayed as witness and if the injured would have not brought by the police, he was to remain there. I had not conducted investigation with regard to the fact that whether the Pawan Kumar came to police post for lodging report either on foot or through any vehicle and whether he reached there in a fast or slow speed. Statement u/s 161 Cr.P.C have been recorded, on their deposing. It has not came to fore in my investigation whether accused had obtained any stay order against the injured. The witnesses fully know that there is a dispute of land between the parties. It has not been written in the investigation that the quarrel happened with Khem Raj and his son who filed a criminal case against Nathu Ram. It is correct to say that the Patwari has not been arrayed as witness to establish that occurrence happened in the land which is in possession of the accused or complainant. The place of occurrence is situated outside the village at a distance of ½ km away. I do not know whether any action was taken by Naib-Tehsildar between the parties or not and whether any amicable settlement was made by the brother-in-law of the parties or not. The statement of Pw-Nathu Ram was recorded on 22.3.2003 at GMC Jammu. No further question was put to the witness.

Heard Learned Deputy AG for the appellant and Learned Counsel for the respondents/accused. I have taken an in depth scanning of the prosecution evidence and bestowed my thoughtful consideration to the material aspects involved in the case.

The allegations against respondents/accused are, that on 20.02.2003 complainant PW-1 Pawan Kumar lodged a written report EXT-1-PK with Police Post Marheen (Kathua) alleging therein, that on 20.02.2003 at 4pm in his presence when PW-2 Nathu Ram his brother-in-law was working in his field, accused Mohinder Pal and Darshan Lal entered in the field, accused Mohinder Pal was armed with iron Kai (Spade), both the accused in order to kill his brother-in-law Nathu Ram mounted assault upon him, whereby accused Mohinder Pal with iron Kai (spade) inflicted 5/6 blows on the head of Nathu Ram who suffered grievous injuries and in the state of unconsciousness fell down on spot. PW-1 Pawan Kumar is the complainant of the case and an important eye witness of the occurrence. His testimony recorded before the trial court demonstrates that accused Darshan Lal inflicted 5/6 blows of Kai (Spade) on the head of his brother- in-law Nathu Ram (PW-2) and when he raised hue and cry, his sister Taro Devi (PW-4) and her son Hari Dutt (PW-3) reached on spot. The evidence of PW-1 Pawan Kumar clearly depicts/establishes that the alleged eyewitnesses of occurrence PW-4 Taro Devi and PW-3 Hari Dutt came on spot after he raised hue and cry, meaning thereby, that PW-4 Taro Devi and PW-3 Hari Dutt have not seen the occurrence with their naked eyes, they reached on spot when the accused had already fled away, therefore, their presence on the scene of crime as being eyewitnesses is highly doubtful. PW-2 Nathu Ram (injured eyewitness) who is the victim of the crime/assault by respondents/accused and star eyewitness has grossly contradicted the version of PW-1 Pawan Kumar by deposing before the trial court that the accused Darshan Lal by catching hold of him started beating him with fists and blows, whereas, accused Mohinder Pal with Kai (Spade) in his hand inflicted 5/6 blows on his head, whereby, he became unconscious. It is interesting to note that PW-2 Nathu Ram has totally refuted the version of prosecution and evidence of PW-1 Pawan Kumar that accused Darshan Lal gave him 5/6 spade blows. When the evidence of PW-1 complainant Pawan Kumar and PW-2 injured eyewitness Nathu Ram is seen in conjunction, it clearly establishes that both the eye witnesses have suffered huge and glaring contradiction as to the manner of the assault. PW-3 Hari Dutt & PW-4 Taro Devi who are also the alleged eyewitnesses of the occurrence and are related as son and wife of the injured eyewitness PW-2 Nathu Ram have given different versions to the prosecution story. PW-3 Hari Dutt has grossly contradicted the deposition of PW-2 Nathu Ram (his father) by deposing that accused Darshan Lal gave spade blows to his father while another accused Mohan Lal having danda with him attacked his father and gave 5/6 blows of spade on his head and fled away. In FIR EXT-1-PK there is no mention of 3rd accused Mohan Lal, therefore, the deposition of PW-3 Hari Dutt has given a different colour to the prosecution story that one more accused namely Mohan Lal was present on the scene of crime which is not the case of prosecution. The evidence of PW-3 Hari Dutt is therefore highly exaggerated and is not in consonance with the prosecution story. PW-4 Taro Devi is one of the alleged eyewitnesses of the occurrence, but the story narrated in FIR EXT-1-PK , the evidence of PW-1 Pawan Kumar eyewitness, evidence of PW-2 Nathu Ram her own husband has totally ruled out the presence of eyewitness Taro Devi on the scene of crime when the accused persons mounted assault upon PW-2 Nathu Ram. PW-1 Pawan Kumar & PW-2 Nathu Ram star eyewitnesses of the occurrence have completely ruled out the presence of PW-3 Hari Dutt & PW-4 Taro Devi on the scene of crime as eyewitnesses. All the four (04) eyewitnesses of the occurrence examined by the prosecution have suffered glaring contradictions, their testimonies are inconsistent and not in support of the prosecution version. It is trite law that when the eye witnesses have seen the occurrence with their naked eyes, it cannot be expected from them to putforth highly distorted versions before the Court of law. The eye witnesses’ account in regard to their presence on the scene of crime and the role played by accused persons mounting assault upon the injured eyewitness PW-2 Nathu Ram is highly unbelievable, doubtful and concocted in the manner projected by the prosecution. PW-6 Dr. Mohinder Lal who has opined regarding the injuries suffered by PW-2 Nathu Ram in his deposition before the trial court has categorically stated that the spade (weapon of offence) shown to him in the court is not the one which was brought before him for verification in the Hospital on 05.05.2003, the injured himself did not tell him about history of injuries received by him as to who is the author of injuries on his person and how he sustained these injuries, moreso, the injuries on the person of injured can be caused by multiple falls on sharp objects. The medical evidence does not suggest that the injuries suffered by PW-2 Nathu Ram have been caused by the Spade shown to the Doctor, therefore, the medical evidence is not in consonance and does not support the prosecution version. PW-7 Kuldeep Raj (IC PP Mahreen Kathua) has conducted the investigation of the case, and in his cross-examination he has categorically admitted that as per FIR (EXT-1-PK) lodged by PW-1 Pawan Kumar, PW-4 Taro Devi (the alleged eyewitness of the occurrence) has not seen the occurrence, similarly in the Roaznamcha (Daily Diary) report No.16 it does not disclose that eyewitness Taro Devi was present on the spot and was witnessing the occurrence. I/O has further admitted in his deposition before the trial court that the blood stained wearing apparels alongwith towel and sheet of injured PW-2 Nathu Ram were neither sealed on spot nor sent to FSL, therefore, it could not be ascertained as to whose blood was lying on wearing apparels of the injured and whether the blood group was of human or animal blood. The eyewitnesses’ account of PWs 1,2,3&4 aforesaid, in support of the prosecution story, coupled with medical evidence and I/O’s testimony, by no stretch of imagination can prove/substantiate charges against respondents/accused, as the same goes to the root of the prosecution case and has demolished its very edifice. The evidence of PWs 1,2,3,4,6 &7 namely Pawan Kumar, Nathu Ram, Hari Dutt, Taro Devi, Dr. Mohinder Lal & Kuldeep Raj (I/O) is, therefore, inadmissible in evidence and no reliance can be based on their testimonies.

On the basis of aforesaid evidence, I hold, that there is no legal evidence much less a reliable evidence on record to prove that respondents/accused are the master mind of the crime attributed to them. The witnesses examined by the prosecution have not been able to put forth in their evidence a ring of truth so as to inspire confidence in the mind of this Court. The evidence of prosecution witness is, therefore, qualitatively and quantitatively insufficient to bring nexus between respondents/accused and the commission of offences attributed to them. This renders the entire story of prosecution as incredible and unbelievable in the manner projected by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between respondents/accused and commission of offences. It will be highly dangerous and hazardous to hold respondents/accused guilty of offences attributed to them on the basis of weak, shaky and unacceptable evidence. The whole of the prosecution case therefore becomes doubtful. For the foregoing reasons and discussion I am of the considered view that prosecution has miserably failed to prove guilt of respondents/accused beyond reasonable doubt for commission of offences attributed to them. The acquittal appeal, therefore, deserves to be set aside and the same is quashed. Resultantly, I do not find any reason to interfere with the impugned Judgment & order of acquittal dated 24.01.2018 rendered by the Court of Learned Additional Sessions Judge Kathua in File No. 06/71 Sessions titled State vs Mohinder Pal & anr, the same is upheld/confirmed.

Disposed off accordingly.

Record of the trail court be sent back forthwith alongwith copy of this Judgment for information of the trial Court.