Jammu & Kashmir High Court
State Of J&K; vs Mohd. Javed Khan & Ors. on 21 August, 2017
Bench: Alok Aradhe, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Cr. Acq. Appeal No.275/2014
Date of order: 21.08.2017
State of J&K Vs. Mohd. Javed Khan & ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge.
Hon'ble Mr. Justice B. S. Walia, Judge
Appearance:
For appellant (s) : Mr. Asheesh Singh Kotwal, Dy.A.G.
For respondent(s) : Mr. Shakoor A. Malik, Advocate.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
Per : Aradhe-J
01. This acquittal appeal is directed against the judgment dated 24.04.2014 passed by the learned Trial Court by which respondents except respondent No.2 have been acquitted for the offences under Sections 307/147/324 of the RPC as well as Section 4/27 Arms Act.
02. The prosecution story briefly stated is that the complainant-Mohd. Aftab Khan accompanied by injured Mohd. Hadayat Khan and Mohd. Sadiq on 10.08.2006 at 1745 hours lodged a report that when the complainants were working in their field, the accused persons came, thereafter accused No.2 handed over a Khokhari to accused No.1 who inflicted the injury on the head of Mohd. Hadyat Khan with the aforesaid weapon of offence, as a result of which, Mohd. Hadayat Khan received grievous injury and fell down. Accused No.1 was also attacked with intention to commit murder of his father, as a result of which his father also received grievance injury on his left leg. The other accused persons attacked them with lathies, fists and blows whereupon the First Information CAA No.275/2014 Page 1 of 4 Report was lodged and police after completion of investigation, filed the charge- sheet against the respondents.
03. The prosecution in order to prove its case examined as many as seven witnesses whereas the respondents examined one Jaspaul Singh in their defence.
04. The Trial Court vide impugned judgment has acquitted the respondents except respondent No.2 of alleged offences against them, who has been proceeded under Sectin512 Cr.P.C.
05. Mr. Kotwal, learned Dy.A.G. submitted that PW2/Mohd. Sadiq and PW3/Hadayat Khan were injured eye witnesses and their testimony ought to have been believed by the Trial Court. It is further submitted that even though, the eye witnesses namely PW4 and PW5 were declared hostile yet the fact remains that in cross-examination, PW4 had supported the prosecution case in so far as it pertains to intention and the motive. It is also submitted that injures on the persons of the complainants were proved and therefore, the Trial Court grossly erred in acquitting the respondents except respondent No.2.
06. We have considered the submissions made by learned counsel for the appellants and have perused the record. Admittedly, the parties had inimical relations between them regarding the boundaries of their land and litigation between them is still pending. PW1 and PW3 are sons of PW2 and therefore, the testimony has to be carefully scrutinized before it can be safely acted upon. It is pertinent to mention here that PW4 & PW5, who are eye witnesses to the incident, had not stated anything about the occurrence. No doubt, they were declared hostile by the prosecution but nothing incriminating was elicited against the respondents even from their cross-examination.
07. PW1 namely Mohd. Aftab Khan has stated that on the day of occurrence at about 4:00 P.M., the accused Mohd. Javed Khan, Waqar Younish, Mohd. Showket and other accused persons came, when the accused-Waqar Younish CAA No.275/2014 Page 2 of 4 handed over the Khokhari to the accused and Mohd. Javed Khan inflicted the injury with the said Khokhari on the head of PW-3 and another on the left leg of PW2, as a result of which, they received injuries and the blood oozed from their wounds. PW2 namely Mohd. Sadiq has stated that on the day of occurrence, accused-Mohd. Javed Khan armed with Khokhari inflicted head injury on the person of PW3, whereafter the accused attacked them. He has further stated that the accused Mohd. Javed Khan inflicted injury with Khokhari on his right leg, as a result of which, he received injuries and blood oozed from his wound.
08. So far as injury caused to PW3 is concerned, PW1, PW2 & PW3 themselves have stated that the accused-Mohd. Javed Khan inflicted injury on the head of PW3 with Khokhari and the aforesaid witnesses have stated that PW4 & PW5 are the eye witnesses to the occurrence. However, the presence of PW1 and PW2 at the place of occurrence is doubtful as their testimony is contradictory in material aspects. PW1 has stated that PW2 received injuries on the left leg by Khokhari used by Mohd. Javed Khan whereas PW2 has stated that he received such injury on the right leg. PW3 has stated that when he received injury on his head, he became unconscious and gain consciousness in the hospital. Thus, he is not witness of causing injury PW2. PW6 namely Dr. Ishrat Hussain has stated before the Court that he found two bruises injuries on lateral aspects of thigh of PW2 red in colour and according to him, such injury could have been caused only by blunt object. Thus, from the testimony of PW6, use of sharp edged weapon namely Khokhari for inflicting the injury upon PW2 is ruled out.
09. Thus, from the material available on record, the presence of PW1 and PW2 on spot is found to be doubtful whereas PW4 and PW5 i.e., alleged eye witnesses to the incident have not supported the prosecution case. The Trial Court on the basis of meticulous appreciation of evidence on record has come to the conclusion that the prosecution has failed to bring home the guilt to the respondents except respondent No.2.
CAA No.275/2014 Page 3 of 410. 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.
11. 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.
( B. S. Walia ) ( Alok Aradhe )
Judge Judge
Jammu
21st August, 2017
Ram Murti
CAA No.275/2014 Page 4 of 4