Jammu & Kashmir High Court
State Of J&K; vs Kewal Kumar And Anr. on 3 November, 2017
Bench: Alok Aradhe, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Condl.(Cr.) No. 64/2016
c/w
SLAA No. 71/2016
Date of order: 03.11.2017
State of J&K vs. Kewal Kumar and anr.
Coram:
Hon'ble Mr Justice Alok Aradhe, Judge
Hon'ble Mr Justice Tashi Rabstan, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. Ravinder Gupta, AAG
For respondent (s) : None.
Condl. (Cr.) No. 64/2016 After hearing learned counsel for the appellant and for the reasons stated in the condonation application, which is duly supported by an affidavit, delay of 204 days in filing the Cr. Acquittal Appeal is condoned.
Accordingly, condonation application is disposed of.
SLAA No. 71/2016After hearing the learned counsel for the appellant, we deem it appropriate to grant leave to file Criminal Acquittal Appeal. Accordingly, leave is granted.
SLAA is disposed of.
Criminal Acquittal Appeal is taken up on board.
Cr. Acquittal Appeal No. 87/2017 This Criminal Acquittal Appeal has been preferred against the judgment dated 09.09.2015 passed by the trial court, by which the respondents have been acquitted of offences under sections 307/34 RPC.
2. The prosecution story in nutshell is that on 28.06.2012, the complainant Mohan Lal in an injured condition filed a written complaint in Police SLAA 71/2016 Page 1 of 4 Station, Ramnagar that yesterday he had gone to the house of his relative at village Dheeran to attend a wedding. After having evening meal, he was sleeping outside the wedding house when at about 11 O' clock, the accused Roshan Lal came on spot and flashed his torch on the face of the complainant to which the complainant objected, whereupon Roshan Lal and his companion accused Kewal Kumar with Lathies attacked him with an intention to kill him and hit him on the head. On his raising a hue and cry and on the intervention of some persons, accused Roshan Lal armed with a lathi grievously injured Jagdev Singh. On the basis of the aforesaid written report, First Information Report was registered against the respondents for the aforesaid offences. The police after completion of the investigation presented the charge sheet before the trial Court against the respondents for the aforesaid offence.
3. The trial court in order to prove its case examined as many as 8 witnesses, namely, PW-Dr. Zakir Hussain, PW-2-Surinder Kumar, PW3- Mohan Lal, PW4-Jagdev Singh, PW5- Tara Chand, PW 6- Vijay Kumar, PW Dr. Arvind Kumar, PW-8 Nishad Ahmed. The trial court on the basis of meticulous appreciation of material available on the record, acquitted the respondents for the offence as aforesaid.
4. Learned AAG for the appellant submitted that the trial court ought to have taken into account the statements of PW-2 Surinder Kumar, PW 3 Mohan Lal, PW-5 Tara Chand and PW6-Vijay Kumar, who have clearly stated that the respondents have assaulted the victim. It is further submitted that the trial court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment.
5. We have considered the submissions made by the learned counsel for the parties and have perused the record. It is pertinent to mention here that as per the complaint filed before Police Station, Sunil, Pinka, Subash and SLAA 71/2016 Page 2 of 4 other persons were also sleeping near complainant but strangely enough, none of these independent witnesses have been examined by the prosecution. Despite that, the prosecution has failed to prove mens rea which is sine quo non for commission of every offence. The prosecution has suppressed the genesis of the occurrence because FIR ought to have been registered soon after Dr. Arvind Kumar of SDH, Ramnagar informed the Police about the occurrence in which PW-Jagdev Singh was injured. The FIR was registered after PW Mohan Lal was asked to get the report drafted by someone and thereafter it was scribed by a petition writer as stated by PW Vijay Kumar. However, statement of Jagdev Singh was not recorded and FIR registered creates doubt about the genuineness of the occurrence. The occurrence took place on 27.06.2012 but the injured persons instead of approaching the police went to the hospital and Dr. Arvind Kumar informed the police, who instead of recording the statement of Jagdish Singh and registering the FIR, adopted the different course by seeking written report from PW Mohan Lal. It is pertinent to mention here that all the material witnesses are either close relatives or friends of the victim. The trial court has rightly appreciated the evidence available on record and acquitted the respondents of the offence alleged against them.
6. The trial court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse (see Ram Swaroop and others vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015 11 SCC 124.
SLAA 71/2016 Page 3 of 47. From perusal of the judgment of the trial court, we find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.
(Tashi Rabstan) (Alok Aradhe)
Judge Judge
Jammu
03.11.2017
Karam Chand
SLAA 71/2016 Page 4 of 4