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2004 DIGILAW 120 (JK)

State Of J. &K. v. Karan Singh

2004-04-26

S.K.GUPTA

body2004
1. The accused were charge-sheeted for the offences committed under sections 447/147/148/ 325/323 R.P.C., by the learned Judicial Magistrate 1st Class, Udhampur, on the allegations that accused animated with criminal intention formed themselves into unlawful assembly and armed with lathis clandestinely forced their entry into the land of the complainant, Rattan Chand, on 02/07/2000, and thereby caused menace and criminal trespass. The accused Harish Chander, hit the complaint and with a stone on the left side of his face, whereas the other accused assulted him with lathes and clubs. In sustenance of the charge, prosecution assembled the testimony of Dev Raj, Shah Mohd and Chaju Ram, besides the complainant, whereas the accused examined Anil Raina as witness in their defense. The Trial Court, after appreciating the evidence let in by the parties and hearing the arguments, held the accused guilty and, accordingly, convicted and sentenced them for offences under sections 447/147/148/325/323 RPC vide its order dated 1fj/09/ 2003. 2. Aggrieved by the order of conviction and consequent sentence recorded by the learned Trial court, the accused impugned its correctness by filing an appeal before the learned Sessions Judge, Udhampur. 3. The Appellate Court found that the prosecution did not contact the independent witnesses during investigation and examined them, though they were readily available, and instead examined the interested witnesses and relied upon their testimony. The learned Sessions Judge further found that the PW - Shah Mohd in his evidence has categorically stated that the accused did not use any lathi against the complainant in his presence, when he reached on spot. The conviction and sentence of the accused was found bad in law by the Learned Sessions Judge, Udhampur, and consequently, accepted the appeal and acquitted the appellants of the offences with which they stood charge-sheeted and, subsequently, convicted and sentenced, vide its judgment and order dated 31/12/2003. It is against this order passed by the learned Sessions Judge, Udhampur, by virtue of which the accused have been acquitted, the State has preferred an appeal in this Court. 4. Heard the arguments and perused the record meticulously. 5. On going through the record, it is clearly trotted out that there is a long run enmity between the parties. Harish Chander had earlier filed a complaint against Rattan Chand with the police that led to the registration of F.I.R. No 26/ 2000 under sections 147/323 RPC. 4. Heard the arguments and perused the record meticulously. 5. On going through the record, it is clearly trotted out that there is a long run enmity between the parties. Harish Chander had earlier filed a complaint against Rattan Chand with the police that led to the registration of F.I.R. No 26/ 2000 under sections 147/323 RPC. This complaint was lodged six months prior to the alleged occurrence. The Challan was presented in the F.I.R., on the conclusion of investigation, against Rattan Chand, Shah Mohd and Kuldeep Singh before the learned Judicial Magistrate 1st Class, Udhampur, and finally disposed of on 31/07/2003. 6. The bone of contention between the parties and the subject matter of dispute is the ancestral land belonging to the parties. No independent witnesses were examined during investigation though were conveniently available at the time of occurrence. It is further borne out from the record that Harish Chander, one of the accused, who happened to have produced a certificate exhibiting of his being on guard duty with SSP, CID, Batote on 01/07/2000 to 027 07/2000 in proof of his plea of alibi at the time of occurrence. This certificate has been proved by the evidence of Sub. Inspector; Anil Raina. This witness stood the test of cross-examination and nothing could be elicited so as to cast a speck of doubt on his veracity. The distance being 70 kilometers between the place of occurrence and the place where the accused. Harish Chander was on guard duty with SSP, CID. Batote, it was not practically possible for him to be at both the places at one time. 7. In a criminal trial, it is incumbent upon the prosecution to prove the guilt of the accused by convincing, reliable, credible and trustworthy evidence beyond any pale of doubt. Where the evidence produced by the prosecution is interested smack of partisanship and tainted, no conviction can be recorded unless supported by an independent testimony of the witness (es). Where the parties are inimical to each other and criminal cases are filed against each other, the evidence adduced has to be appreciated with great care and circumspection. The witness examined in this case by the prosecution were the accused in the case filed by Harish Chander about six months prior to the occurrence. So, their evidence can neither be termed t be independent nor trustworthy to inspire confidence in the Court. The witness examined in this case by the prosecution were the accused in the case filed by Harish Chander about six months prior to the occurrence. So, their evidence can neither be termed t be independent nor trustworthy to inspire confidence in the Court. Their evidence is qualitatively and quantitatively insufficient to prove the guilt of the accused and base their conviction and consequent sentence. 8. The factual matrix of the case and the legal position emerging therefrom is not even disputed by Mr. S. C. Gupta, learned Addl. AG appearing for the appellant-State when he was taken through the record. The Impugned order of acquittal recorded by the learned Sessions Judge, Udhampur, in my view, does not suffer from any legal infirmity or factual frailty to invite interference in this appeal. 9. For what has been stated and discussed above, there is no merit in this acquittal appeal and is dismissed at the preliminary stage of admission.