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Jammu & Kashmir High Court

State Of J&K; vs Bansi Lal And Others. on 19 August, 2017

Bench: Alok Aradhe, Sanjeev Kumar

                HIGH COURT OF JAMMU AND KASHMIR
                                             AT JAMMU

Cr. Acq. Appeal No.68/2005

                                                                  Date of order: 19 .08.2017.
State of J&K                           Vs.                  Bansi Lal and others.
Coram:
         Hon'ble Mr. Justice Alok Aradhe, Judge
         Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Appellant (s)           : Mr.Ahtsham Hussain Bhat, GA
For the Respondent(s)           : Mr. Ajay Vaid, Advocate.

i/       Whether to be reported in            :             Yes/No
         Press/Media
ii/      Whether to be reported in            :             Yes/No
         Digest/Journal

Alok Aradhe-J

1. This acquittal appeal has been filed against the judgement dated 31.08.2005 passed by the trial Court by which respondents have been acquitted of the offence under Section 302/147/149 RPC.

2. The prosecution story in nutshell is that on 21.06.2000 at about 7 p.m., deceased Sham Lal along with his son Suresh Kumar had gone to a spring situate in his land to take bath. One Bansi Lal, who happens to be the brother-in-law of the wife of the deceased was having enmity with him on account of land and house and has constructed a wall on their land. Thereupon the deceased Sham Lal raised a protest and asked him not to raise construction of the wall. Thereupon, aforesaid Bansi Lal got infuriated and started abusing the deceased and thereafter the deceased was mercilessly beaten by the respondents with legs and fist blows and ultimately he succumbed to the injuries in the hospital on 23.06.2000.

3. On information being furnished by the wife of the deceased, namely Vaishno Devi, FIR was initially lodged under Sections 307/147/149 RPC, which was later on converted to Section 302 RPC. The police after completion of the investigation filed charge-sheet against the respondents. The trial Court vide impugned judgment has acquitted the respondents.

4. The prosecution in order to prove its case, examined Vaishno Devi PW-1, Sunita Devi PW-2, Prem Dass PW-3, Bodh Raj PW-4, Gurdial Singh PW-5, Dewan Chand PW-6, Gulshan Kumar PW-7, Tirath Ram PW-8, Suresh Kumar PW-7, Tej Ram PW-8, Dr. Bhupesh Khajuria PW-11, Dr. Leela Devi PW-12, Krishan Nath PW-13, Narinder Singh PW-14, Mohan Lal PW-15, Ghulam Rasool Wachkoo PW-16, and Bihari Lal Sharma PW-17, whereas respondents examined Daya Ram, Kamal Krishan, Vikas Sharma and Koshal Kumar in their defence. The Trial Court vide impugned judgment acquitted the respondents of the offence alleged against them.

5. Learned counsel for the appellant submits that the trial Court grossly erred in discarding the dying declaration made by the deceased. It is further submitted that the factum of previous enmity was found to be proved even by the trial Court. It is also submitted that that the trial Court has failed to appreciate the evidence on record in its right perspective, which has resulted in erroneous findings and consequent judgment. Learned counsel for the appellant has placed reliance on a decision of this Court in the case of Jasbir Singh and anr. v. State of J&K; 2016(4) JKJ 169[HC]. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial Court.

6. We have considered the submissions made by learned counsel for the parties and have perused the record. PW-1 Vaishno Devi, wife of the deceased is the complainant and eye-witness to the incident. Aforesaid witness in her statement has firstly stated that the accused were beating the deceased when she went on spot. However, later on she stated that the accused were going Cr. Acq. Appeal No.68/2005 Page 2 of 5 away from the spot after beating her husband and her husband was not beaten by them in her presence. Thus, it is evident that she is not an eye- witness to the occurrence, Even though, cited as an eye-witness by the prosecution. Besides that, it is pertinent to mention here that her conduct is unnatural because if she had seen her husband being beaten up by the respondents, she would have rushed to the spot and would have tried to rescue her husband and would have taken him to the hospital instead of proceeding to the Police Station for lodging FIR against the respondents. Therefore, the testimony of Vaishno Devi PW-1 is not trustworthy.

7. PW-2 Sunita Devi has also made a similar statement like Vaishno Devi.

However, the statements of PW-1 Vaishno Devi and PW-2 Sunita Devi have been contradicted by PW-9 Suresh Kumar, who is the son of the deceased. According to him, he and his father had gone to the land to put clay on their house and the incident took place there because the respondents were throwing stones in their land which was objected to by his father. He further stated that they never went to water spring whereas PW-1 Vaishno Devi and PW-2 Sunita Devi have stated that they went to the spot but Suresh Kumar PW-9 has given different version of the incident.

8. PW-9, Suresh Kumar has further stated that first of all Prem Dass PW-3 and Numberdar Bodh Raj came on spot and thereafter his mother and sister came there. He has further deposed that when PW-5 Gurdial Singh came on spot the accused had left the place of occurrence. If the statement of PW-9 Suresh Kumar is to be believed, PW-1 Vaishno Devi and PW-2 Sunita Devi were therefore, not eye-witnesses to the incident and from his statement, it is evident that the incident has been witnessed by Prem Dass and Bodh Raj.

9. Prem Dass PW-3 is an eye-witness, however, he has stated that no occurrence has taken place in his presence and he is not aware as to how the deceased died. Therefore, his statement is of no assistance to the prosecution case. Similarly, Tej Ram PW-10 and his son Sham Lal are also an eye-

witness to the alleged incident. However, Sham Lal has not been examined by the prosecution. Mohan Lal PW-15 has been examined by the prosecution as an eye-witness, but has not supported the prosecution case. Bodh Raj PW- 4 who has been cited as an eye-witness by the prosecution, has not supported the prosecution case, as he has stated in his statement that he has not seen the respondents beating the deceased. Tej Ram PW-10 is another eye-witness, who has been declared hostile by the prosecution and has stated that he did not see the accused beating the deceased Sham Lal. Thus, from the statement of the eye-witnesses, it is evident that the prosecution has failed to prove its case.

10. The prosecution has also examined the dying declaration of the deceased, which was recorded by Narinder Singh PW-14 who is Assistant Sub Inspector in the Police. From the statement of Dr. Leela Devi PW-12, it is evident that the condition of the injured was deteriorating day by day and his dying declaration was recorded by Narinder Singh PW-14 on 22.06.2000, when his condition was deteriorating and he was referred to GMC Jammu. Besides that, it is pertinent to note that the dying declaration does not contain any note that the deceased was in a fit physical and mental condition to make the statement. From the statement of Dr. Leela Devi PW-12, it is also evident that the police officials were putting questions to the injured and he was replying in gesture and by nodding and she has only attested the statement and has not made any endorsement that it was recorded in his presence. Therefore, the dying declaration also fails to inspire any confidence.

11 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 Cr. Acq. Appeal No.68/2005 Page 4 of 5 the evidence on record or perverse (see Ram Swaroop and others v. State of Rajasthan; (2004) 13 SCC 134, Vijay Kumar v. State by Inspector General; (2009) 12 SCC 629 and Upendra Pradhan v. State of Orissa; (2015) 11 SCC 124.

12. 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.

                              (Sanjeev Kumar)                 (Alok Aradhe)
                                  Judge                          Judge
Jammu
19.08.2017
Vinod.




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