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Jammu & Kashmir High Court

State Of J&K; vs Sat Paul on 23 November, 2017

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

`Serial No. 12
 Regular List
                            HIGH COURT OF JAMMU AND KASHMIR
                                        AT JAMMU

          SLAA No.81/2016 c/w CONCR No.73/2016

                                                                   Date of order: 23.11.2017


          State of J&K               vs.         Sat Paul

          Coram:
                Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
                Hon'ble Mr Justice Sanjeev Kumar, Judge.
          Appearance:
          For the appellant(s)     : Mr S.S.Nanda Sr.AAG.
          For the Respondent(s)   :

          i) Whether approved for reporting in               Yes/No
          Law journals etc.:
          ii) Whether approved for publication
          in press:                                          Yes/No
          Badar Durrez Ahmed, CJ (Oral)

          CONCR No.73/2016

We have heard the learned counsel for the State. The delay is only of 02 days.

For the reasons stated in the application and upon hearing the submissions of learned counsel for the State, we allow this application by condoning the delay.

The application stands disposed of.

1 This is an application for leave to appeal against an order of acquittal passed by the 1st Additional Sessions Court, Jammu on 23.04.2016 in Sessions Case No.18/2003. The said case arose out of FIR No. 23/2003 registered at Police Station, R.S.Pura for offences under Sections 307/341/323/324 RPC and 4/27 Arms Act, 1959.

2 The prosecution version is that the injured Nek Ram, after closing his shop along with his brother Subash Chander, proceeded towards their home. When they reached near the R.S.Pura Hospital complex at about 7.15 pm, Sat Paul and Billa S/o Sohan Pandi R/O Badyal Qazian, due to an old enmity, attacked Nek Ram with a Khokhari and Toka with the intention of killing him. It was further reported by Subash Chander, inasmuch as Nek Ram was injured and was not fit to make a statement at that point of time, that Billa used the Khokhari, whereas Sat Paul used the Toka and caused injuries.

3 On receipt of the said statement, the said FIR was registered for the said offences. After completion of investigation, charge sheet was prepared against Vijay Singh alias Billa and Sat Paul alias Thakur. Charges were subsequently framed for the commission of offences punishable under Sections 307/341/323/324 RPC read with Section 34 RPC and Sections 4/27 of the Arms Act, 1959. The accused pleaded not guilty and consequently, the trial ensued. The prosecution examined nine witnesses-PW 1 HC Mushtaq Ahmed, PW2 Subash Chander, PW3 Ganesh Chander, PW4 Anil Gupta, PW5 Hans Raj, PW6 Nek Ram, PW7 Satpal, PW8 Dr. Kanta and PW9 Ravail Singh Choudhary. It may be pointed out that Vijay Singh alias Billa died during the trial and as such, the case against him abated. Therefore, the case against Sat Paul only reached its culmination in the conviction order passed by the trial Court under Sections 341/323 RPC. He was, however acquitted of the charges for the offences punishable under Sections 307/324 RPC and Sections 4/25 of the Arms Act, 1959.

4 Mr. Nanda, appearing on behalf of the State, submitted that Sat Paul had been wrongly acquitted for the said offences when there was evidence that he also used a sharp edged weapon and inflicted injuries on the person of the deceased Nek Ram.

5 We have heard Mr.Nanda, in detail, and also examined the trial Court judgment, which has reproduced the entire evidence led by the nine prosecution SLAA 81/2016 Page 2 of 4 witnesses. The most important witness, in our view, would be the injured witness Nek Ram. PW 6 Nek Ram has stated that Sat Paul was armed with a Toka ( a chopper- like weapon) and Vijay Singh was armed with a Khokhari. He further stated that on approaching the Hospital gate, Vijay Singh hit him on the head and face with the Khokhari and, while trying to save himself, he received injuries on his hand and then started bleeding. He has also stated that the other accused (Sat Paul) had caused him injuries with the said Toka. He has, however, not stated as to what was the nature and location of those injuries said to have been inflicted by Sat Paul.

6 PW 2 Subash Chander, who is the brother of the injured witness Nek Ram, in his examination-in-chief, submitted that when he arrived at the spot, Sat Paul armed with a toka and Vijay Singh with a kirpan had been assaulting Nek Ram. He stated that Nek Ram had received injuries on his head, face and arm. This witness has also not stated as to which injuries were actually caused by Sat Paul. On examining the testimonies of both the brothers, that is, Nek Ram and Subash Chander, it becomes evident that the injuries on the head and face have been attributed to Vijay Singh while no specific injuries have been attributed to Sat Paul.

7 We may also notice the testimony of PW5 Hans Raj, who, in his examination-in-chief stated that he saw the accused Vijay Singh assaulting Nek Ram with a Khokhari, while accused Sat Paul with a Toka. In cross- examination, however, he stated that at the time of the occurrence, PW 2 Subash Chander had come after shutting down his shop. He also stated that he reached the spot after PW 2 Subash Chander and that the occurrence was over by the time Subash Chander reached the spot. He had gone to the spot on hearing the hue and cry raised by PW2 Subash Chander and the accused had escaped. He stated that Sat Paul had caused injuries on the person of Nek Ram, on the head and face. This last statement is contradicted by the injured witness PW 6 Nek Ram himself, who stated that the injuries on the head and face were caused by Vijay Singh with a SLAA 81/2016 Page 3 of 4 Khokhari and not by Sat Paul. This witness also makes it clear that neither he nor PW2 Subash Chander had actually seen the occurrence as he had arrived after PW2 Subash Chander and Subash Chander had also arrived after the occurrence.

8 We may now examined the testimony of PW 8 Dr. Kanta, who stated that Nek Ram had received seven injuries and all the injuries were simple in nature, caused by a sharp weapon. However, none of the weapons were shown to the said Doctor. Other witnesses were also considered including two defence witnesses DW1 Darshan Lal and DW2 Puran Chand. After considering the entire evidence on record and the totality of the circumstances, the Trial Court found that the offences did not fall within the category of Sections 304/324 RPC read with Sections 4/25 of the Arms Act, 1959. This is insofar as Sat Paul is concerned because accused Vijay Singh alias Billa had died during the trial and the case against him had abated. The trial Court, however, found that Sat Paul was guilty of committing the offences punishable under Section 341/323 RPC. We do not see any cause for interfering with this finding of the trial Court. No perversity in the said judgment has been pointed out by the learned counsel for the State. Therefore, the acquittal of Sat Paul for the offences punishable under Sections 307/323 RPC and Sections 4/25 of the Arms Act, 1959 does not call for any interference.

9 In view of the foregoing, we feel that this is not a case in which leave should be granted permitting the State to appeal against the acquittal order. Consequently, the application is dismissed.

                            (Sanjeev Kumar)     (Badar Durrez Ahmed)
                                    Judge              Chief Justice
Jammu
23.11.2017
Sanjeev




SLAA 81/2016                                                                Page 4 of 4