Jammu & Kashmir High Court
State Of J&K vs Surinder Kumar on 14 July, 2023
Bench: Rajnesh Oswal, Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 10.07.2023
Pronounced on: 14 .07.2023
CrlA (AD) No. 22/2019
State of J&K .....Appellant(s)/Petitioner(s)
q
Through: Mr. Dewakar Sharma, Dy. AG
vs
Surinder Kumar ..... Respondent(s)
Through: Mr. Sandeep Gupta, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
Per-Oswal J.
1. This appeal has been preferred against the judgment dated 23.04.2019 delivered by the court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as 'the trial court'), whereby the respondent has been acquitted of the charge for commission of offences under Sections 302/341 RPC in FIR No. 56/2015 of Police Station, Majalta.
2. The judgment has been impugned by the appellant on the ground that the trial court has not appreciated the evidence rightly and despite the fact that the prosecution had established the case against the respondent by adducing the documentary as well as oral evidence, the learned trial court acquitted the respondent erroneously.
3. Mr. Dewakar Sharma, learned Dy. AG has vehemently argued that the wife and the brother of the deceased have deposed in a clear and cogent manner with regard to commission of offence by the respondent but despite that, the learned trial court has acquitted the respondent. 2 CrlA (AD) No. 22/2019
4. Mr. Sandeep Gupta, learned counsel for the respondent has submitted that the independent witnesses examined by the prosecution have not supported its case. The statement of the wife and the brother of the deceased have rightly not been relied upon by the trial court and as such there is no infirmity and illegality in the judgment impugned, that may warrant interference by this court.
5. Heard and perused the record.
6. Briefly stated, the prosecution story is that one Madan Lal Verma (Brother of the deceased) submitted a written application with the Police Station, Majalta, stating therein that on 15.07.2015, his brother, namely, Naresh Verma was going towards the bus stand from his home. At about 02:00 PM, the accused-Surinder Kumar, due to enmity, stopped his brother and started beating him. In order to kill his brother, the accused forcefully banged the head of his brother on the road due to which, his brother suffered serious injury and he became unconscious. Some passersby took his brother to Primary Health Centre, Thial, from where, he was referred to Government Medical College, Jammu. The condition of his brother was very critical. On receipt of this application, FIR bearing No. 56 of 2015 for commission of offences under Section 307/341/323 RPC was registered and the investigation was commenced. During the course of investigation, the injured succumbed to the injuries suffered by him on 05.08.2015 at DMC, Ludhiana. Statements of the witnesses were recorded and the dead body was seized and post mortem was conducted. Due to death of the victim, offence under section 302 RPC was incorporated. During investigation, it was revealed that the victim-deceased had kept a 3 CrlA (AD) No. 22/2019 tin sheet in his shop which was misplaced. He came to know that the tin sheet had been taken by the respondent. The victim-deceased went to the house of the accused-respondent and brought the tin sheet back. On 15.07.2015, when the victim was going to bus stand, Thial and reached near the shop of Ram Lal, he was intercepted by the accused-respondent at around 02:00 PM and due to enmity, the accused gave fist blows to the victim-deceased and then banged his head upon the road, as a result of which, he suffered head injury and became unconscious. During investigation, the Investigating Officer laid the charge sheet against the respondent on 12.09.2015 before the Chief Judicial Magistrate, Udhampur, who committed the same to the Sessions Court. The respondent was charged for the commission of offences under Sections 302/341 RPC on 06.10.2015 and the prosecution was directed to lead evidence. All the 19 witnesses cited by the prosecution were examined. Incriminating evidence was put to the respondent and thereafter, the respondent also examined two witnesses in his defence. After hearing both the parties, the respondent was acquitted vide the judgment impugned.
7. In order to appreciate the contention raised by the appellant that the learned trial court has not rightly appreciated the evidence, it is imperative to have a brief resume of the evidence led by the parties. Prosecution Evidence:
8. PW1-Madan Lal, complainant (Brother of the deceased) stated that on 15.07.2015, at around 02:30 PM, he was told by one Ajay Sharma, who was working in Primary Health Centre, Thial as Medical Assistant, that his brother had suffered serious head injury and he proceeded towards 4 CrlA (AD) No. 22/2019 Thial. He phoned Ajay Sharma, who told him that his brother was going to bus stand, when Surinder Kumar attacked and injured him. The accused banged the head of the victim on the road due to which, his condition became critical and he was referred to Government Medical College, Jammu. He went to the Police Station and submitted a written application. He proved the application (EXTP1). During cross-examination, he stated that he reached the Police Station at 06:00 PM. His brother-Sanjay had not gone along with Naresh Kumar-victim to the Government Medical College, Jammu. SHO recorded his statement and also the statements of Sanjay Abrol and Ajay Sharma. SHO prepared the site plan on the identification of shopkeepers, namely, Kewal Krishan and Ram Lal. When the occurrence took place, the wife of the victim had gone to her parents' residence. He had no personal knowledge about the incident. This is wrong that he went to the Police Station after three days of occurrence and lodged the report then only.
9. PW2-Ajay Kumar stated that on 15.07.2015, he was posted at Thial. The injured was brought to the hospital in unconscious condition. After giving first aid to him, he was referred to the Government Medical College, Jammu and thereafter to DMC, Ludhiana. He was told by some persons that the accused and the victim had quarrelled with each other due to one tin sheet. He proved the seizure memo of the tin sheet (EXTP2). During cross-examination, he stated that when occurrence took place, he was on duty. The Primary Health Centre, where he was posted was at a distance of 400 yards away from the Bazaar. The Bazaar is not visible from that place. His statement was recorded after one week of the occurrence. His 5 CrlA (AD) No. 22/2019 statement was recorded at the residence of the victim. It has been wrongly recorded in his statement by the Police that occurrence took place in his presence. The wife of the victim had gone to her parents' residence and she went to the GMC, Jammu from there only.
10. PW3-Smt. Jyoti Abrol (wife of the deceased) stated that on 15.07.2015, she was at her matrimonial home along with her children. At around 01:30-02:00 PM, her husband was going to Bazaar. She heard noise and felt that there was a fight going on between her husband and the accused. She went on spot and found that the accused had held one stone like object in his hand and hit the head of her husband with that object. Her husband became unconscious. Thereafter, the accused by holding her husband from his hair, banged him on the road 2-3 times. Her husband got injured. Number of people gathered on spot. The residents of her mohalla as well as her elder brother-in-law also came on spot. The injured was taken to the Hospital, Thial, from where he was referred to GMC, Jammu and thereafter to DMC, Ludhiana. He remained admitted in the hospital for 22 days and expired on 05.08.2015. She also stated that 3-4 days prior to the occurrence, their tin sheet was stolen. 2-3 days prior to the occurrence, they came to know that the accused had stolen the same. Her husband had brought the tin sheet from the residence of the accused. During cross- examination, she stated that this is wrong that in her application for getting the employment on compassionate grounds, she had mentioned the cause of death of the deceased as natural death. She was confronted with the documents brought on record by the accused and she denied having sworn affidavit that cause of death of her husband was natural. This is correct 6 CrlA (AD) No. 22/2019 that place of occurrence was not visible from the gate of her house that opened towards Ram Leela ground. Her brother-in-law-Sanjay Abrol was present at his home at the time of occurrence. She could not say whether the accused or the victim was abusing. First time she saw the accused and the victim from her home and after five minutes, the accused and the victim again quarrelled with each other. This is correct that she saw first quarrel from her house and second quarrel on the place of occurrence. When the accused and the victim quarrelled for the first time, she asked her brother-in-law to intervene in the matter but he did not go there as he was mentally unstable. Her statement was recorded 13-14 days after the death of the deceased. She had not made any statement in respect of first quarrel in her statement recorded under Section 161 Cr. P.C. She denied that at the time of occurrence, she had gone to her parents' house but the fact is that prior to the occurrence, she had come to her matrimonial home and was present in her matrimonial house on the day of occurrence. She expressed ignorance, as to whether any FIR was registered in respect of theft of tin sheet. She was confronted with her statement under Section 161 Cr. P.C. and it was found that there was no mention that the accused had hit the head of the victim with stone like object and had banged on the road.
11. PW4-Ram Lal in chief examination stated that on 15.07.2015, at around 01:30 PM, the accused and the victim quarrelled. He stopped them from doing so and told them that they were literate persons and why they were fighting. Still, both the accused and the victim continued to quarrel with each other. Thereafter, he went to his shop. His statement was recorded by 7 CrlA (AD) No. 22/2019 the Police. During cross-examination, he stated that his statement was recorded on 16.08.2015. The Police came on spot 3-4 days after the occurrence. He was present in his shop and as such, did not know who else was present on spot. From his shop, the place of occurrence was not visible.
12. PW5- Madan Lal stated that on 15.07.2015, at around 01:30 PM, the accused and the victim were talking to each other and while doing so, they started quarrelling. He and others intervened and they stopped fighting. Thereafter, they again started quarrelling. He did not know whether the accused slapped or hit the victim with fist blows. The victim fell down and became unconscious. He was taken to Thial hospital. During cross- examination, he stated that he witnessed the occurrence from a distance of 30-35 feet but he could see only upto 10-12 feet. He could not see beyond 10-12 feet as to who was standing at which place as his vision was blurred because of his age. The accused was having 10 litre gallon in one hand and 20 litre gallon in other hand. He could not say that how the victim fell down. On the day of occurrence, the wife of the victim had gone to her parents' house.
13. PW6-Sat Pal stated that on 15.07.2015, at around 01:30 PM-02:00 PM, he was sitting under the Mango tree. The accused was bringing water and the victim also came on spot. Both started quarrelling and during quarrel, the victim fell down and got injured. Thereafter, he was taken to Thial hospital. He was thereafter referred to Jammu, from where he was referred to DMC, Ludhiana. The injured died at Ludhiana. During cross- examination, he stated that his statement was recorded in the Police 8 CrlA (AD) No. 22/2019 Station after 7-8 days of occurrence. The Police had wrongly mentioned in his statement that the accused banged head of the victim time and again with the road. He was standing at a distance of 40-50 feet from the place of occurrence and he could not see the occurrence from such distance. He did not know as to how the victim fell down. The wife of the victim was in her parents' house at the time of occurrence.
14. PW7- Jagdeep Sharma turned hostile and despite cross examination by learned APP, no incriminating material could be extracted.
15. PW8-Kuldeep Kumar stated that on 15.07.2015, at around 02:00 PM, he was on his shop. The accused and the victim were fighting with each other. He went on spot to counsel them and they ended their quarrel. Thereafter, he came back to his shop. Thereafter, the accused and the victim again started quarrelling with each other as was told to him by someone. The victim became unconscious and fell. He was taken to Thial hospital. During cross-examination, he stated that his statement was recorded in the Police Station 2-3 days after the occurrence. Naresh Kumar was high headed person and used to fight on petty issues. The wife of the victim was not present in her home as she had gone to her parents' house.
16. PW9-Sanjay Kumar stated that on 15.07.2015, he was present in his home and besides him, his victim brother and wife of the victim were also present in the home. At around 02:00 PM-03:00 PM, the victim went out and he heard the abuses and came out. He went to the Bazaar and saw that the accused had caught victim and was also abusing and assaulting him. He also pushed the victim as a result of which, he became unconscious. 9 CrlA (AD) No. 22/2019 Thereafter, they took him to the hospital. During cross-examination, he stated that his elder brother resided at Udhampur and brother-Bhushan was in Jammu during those days. He denied that he was mentally ill and because of his illness, he could not marry. He did not accompany the victim to the hospital. At the time of occurrence, he was in his room. When he heard cries, he came out. He denied that he went to see his brother at the instance of wife of the victim. When he arrived at the place of occurrence, he saw the accused giving fist blow to the victim. Due to fist blow, the victim lost his balance. He did not intervene to save the victim rather when he arrived at the place of occurrence, the victim had already fallen on the ground. The wife of the victim arrived after 7-8 minutes.
17. PW10-Subash Chander stated that on 15.07.2015, the victim was referred to Jammu from where he was referred to DMC, Ludhiana. On 05.08.2015, he came to know that the victim had expired at DMC, Ludhiana. He proved the seizure memo of the clothes. During cross- examination, he stated that he went to Ludhiana with Police. The post mortem of the deceased was conducted at PHC, Majalta.
18. PW11-Chaman Lal stated that on 15.07.2015, his sister phoned him that there was a fight between her husband and the accused and her husband had received grievous injuries. After few minutes, he received another call from her sister that condition of her husband was very serious and he was referred to GMC, Jammu from where he was referred to DMC, Ludhiana, where he expired on 05.08.2015. During cross-examination, he stated that he had a shop in Dayalachak. He admitted that in his statement recorded 10 CrlA (AD) No. 22/2019 under section 161 Cr. P.C. that he had not mentioned about receiving information of the occurrence from his sister.
19. PW12-Bharat Bhushan stated that the victim was his brother and on 15.07.2015, when he received a call from his younger brother-Sanjay Kumar that the accused banged the victim on hard surface, he was in Jammu. The victim was taken to Chandigarh and then to Ludhiana. On 05.08.2015, the victim expired. During cross-examination, he stated that his elder brother-Madan Lal brought the victim to the hospital in his own vehicle.
20. PW13-Bishan Dass stated that on the day of occurrence, there was a quarrel between the victim and the accused on the issue of a sheet. Thereafter, the tin sheet was seized (EXTP2). During cross examination, he stated that he did not remember the dimensions of the sheet. It has been wrongly mentioned in the statement recorded under section 161 Cr. P.C. that the accused had assaulted Naresh Abrol because he was not present on spot.
21. PW14- Mohd. Aslam Patwari has proved the site plan (Ext P-MA) of the place of occurrence.
22. PW15- Makhan Lal turned hostile. Despite cross examination, no incriminating material could be extracted.
23. PW16-Sham Lal stated that in July, 2015, he saw the victim and the accused arguing in the market and they started hitting each other. Some people separated them. Thereafter, the victim shouted that anybody who had taken the tin sheet should go to hell. Thereafter, the victim again attacked the accused, upon which, the accused pushed the victim and he 11 CrlA (AD) No. 22/2019 fell down and cried. The victim was taken to the hospital. Thereafter, he came to know that he had expired. During cross examination, he stated that it is correct that the accused had gone to Bowli for taking bath and was having 20 litres gallon in one hand and was carrying another gallon of water in other hand. The victim tried to hit the accused with five litre gallon but the gallon missed the target and fell down and got burst. Thereafter, he could not see as to what happened because he was sitting at a distance. During argument, the victim was pushed by the accused as a result of which, the victim lost his balance and fell on his own.
24. PW17-Dr. Dimple Gupta has proved the certificate EXTP-Dr. DG that the patient was not fit to make the statement. During cross examination, she stated that there was no injury mark on the body as well as face of the patient.
25. PW18-Dr. Rajinder Singh proved the post-mortem report (EXTP-18) and as per report, the deceased died due to cardio-pulmonary arrest following severe head injury. During cross examination, he stated that he observed scar mark on scalp, tracheotomy opening of the neck. Scar mark on scalp was due to operation of head in DMC and it cannot be called as injury. The tracheotomy was also conducted by surgeon in DMC, Ludhiana.
26. PW19-Aashiq Hussain Bukhari stated that he conducted the investigation in FIR No. 56/2015 and as per his investigation, offences under Sections 341/302 RPC stood proved against the respondent. During cross-examination, he admitted that as per map prepared by the Patwari (EXTPMA), the place of occurrence has been shown as plinth of shop, 12 CrlA (AD) No. 22/2019 which was owned by one Makhan Lal and Sham Lal. During investigation, he did not find that the wife of the deceased was in parental house at Kathua. From his investigation, he found presence of only one Ajay Kumar S/o Madan Lal on spot as an eye witness.
DEFENCE WITNESSES
27. DW Dalip Kumar stated that the wife of the deceased had been appointed on compassionate grounds under SRO 43 of 1994. In record, she had disclosed that her husband expired on 05.08.2015 and cause of death was not mentioned. She had also filled up form-C wherein she mentioned the cause of death of her husband as natural death.
28. DW Ashok Kumar has produced the service record of the deceased-
Naresh Kumar Abrol.
29. As per evidence brought on record by the prosecution, it is evident that only two witnesses i.e. PW Jyoti Abrol (wife of the deceased) and PW Sanjay Kumar (brother of the deceased) have deposed to some extent against the respondent. PW1-Madan Lal has himself admitted that he had not seen the occurrence himself. The most important witness was PW2- Ajay Kumar, who too has categorically stated that he had not watched the incident himself. PW3-Jyoti Abrol has no doubt made a statement with regard to injury caused to her husband by the accused but her evidence is not convincing. This is so because she has herself stated that she was watching the occurrence from the gate that opens towards Ram Leela ground but at the same time, she stated that the place of occurrence was not visible from that place. More so, she has stated that the respondent assaulted the deceased with stone like object which is not in consonance 13 CrlA (AD) No. 22/2019 with the prosecution case. More so, in her statement recorded under section 161 Cr. P.C., it has not been mentioned that during occurrence, the accused hit the deceased with stone like object and banged on the road. Not only these material contradictions as well as infirmity in her statement, her presence on spot has been denied by PWs namely Madan Lal (brother of the deceased), Ajay Sharma, Madan Lal, Sat Pal and Kuldeep Kumar. The other witness who has supported the prosecution story to some extent is PW Sanjay Kumar, who happened to be brother of the victim. He has stated that after hearing noises, he went on spot. He had also stated that he was mentally fit whereas PW Jyoti Abrol has categorically stated that his brother-in-law-Sanjay Kumar did not go outside as he was not mentally fit. Further, statement of PW Dr. Dimple Gupta reveals that there was no injury mark on the body as well as face of the victim. PW Dr. Rajinder Singh no doubt has stated that the victim died due to cardio-pulmonary arrest following severe head injury but at the same time he stated that he found only scar mark on scalp and tracheotomy opening of the neck on the body of the deceased, which cannot be termed as injuries. From the statement of other witnesses, it is evident that quarrel took place between the accused and the deceased but there is no convincing evidence that the accused banged the head of the deceased on the road, as a result of which he suffered serious injuries resulting into his death.
30. We have examined the judgment passed by the learned trial court and the learned trial court has taken note of the infirmities as well as material contradictions in the prosecution evidence. The learned trial court has 14 CrlA (AD) No. 22/2019 rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. We do not find any perversity in the judgment of the acquittal recorded by the learned trial court. In fact, there is no reason before us to interfere with the well reasoned judgment.
31. In view of the above, we do not find any merit in this appeal. The same is accordingly dismissed.
32. Record of the learned trial court be sent back.
(MOKSHA KHAJURIA KAZMI) (RAJNESH OSWAL)
JUDGE JUDGE
Jammu
14 .07.2023
Neha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.