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2017 DIGILAW 439 (JK)

State of J&K v. Sain Khan

2017-07-26

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : SLAA No. 108 of 2014 This application has been filed seeking leave of the Court to file an appeal against judgment dated 16.11.2013, by which the trial Court has acquitted the respondents of the offences under Sections 307, 325, 323, 147, 148 RPC and section 4/25 Indian Arms Act. 2. The prosecution story in a nutshell is that on 16.01.2006 one Gulab Din S/o Shukar Din lodged a written report in Police Station, Vijaypur alleging therein that he had dispute with Niaz Din and others in respect of a land bearing Khasra No. 1104 measuring 4 kanals 17 marlas and in that regard he had obtained a stay order from the court of Additional Tehsildar. In violation of the order of injunction passed by the Court of Addl. Tehsildar, the respondents were raising construction on the land in question. When they were stopped from raising the construction, the respondents, who had already assembled on spot with the common intention and pre-planned scheme, made murderous attack on complainant, Gulab Din with sharp edged weapon, Toka Parthi, lathies and stones. The respondents also gave kicks and fists blows to the Patwari Halqa. It is stated in the written report that his sons, namely, Mohd Ishaq, Talab Hussan and Nawab Din, who rushed to the spot in order to rescue the complainant, Gulab Din, were also attacked by the respondents, as a result of which, his sons Talab Hussain, Nawab Din and he received deep wounds on their heads and other parts of the bodies. Mohd Ishaq was also suffered fracture on his left leg. Thereupon, First Information Report No. 02/2006 for commission of offence under section 307, 147, 148, 323 RPC and 4/25 Indian Arms Act was lodged against the respondents. After completion of the investigation, charge sheet was presented before the trial court for commission of offences as aforesaid. 3. The trial court on the basis of meticulous appreciation of evidence available on record has held that the prosecution has failed to prove the case as it could not lead clear, cogent and convincing evidence on record and accordingly, the respondents were acquitted of the offences alleged against him. 4. The learned Deputy AG for the appellant submitted that the independent witnesses, namely, Babu Ram, Talab Hussain, Mohd Ishaq and Ghulam Rasool have clearly stated that the respondents have assaulted the complainant and his sons. 4. The learned Deputy AG for the appellant submitted that the independent witnesses, namely, Babu Ram, Talab Hussain, Mohd Ishaq and Ghulam Rasool have clearly stated that the respondents have assaulted the complainant and his sons. It is submitted that PW 5-Ghulam Rasool has submitted that weapons of offence were recovered in his presence. However, trial court has not properly appreciated the evidence available on record on the basis of minor contradictions has misdirected itself in evaluating the evidence available on record. On the other hand, the learned counsel for the respondents has supported the judgment passed by the trial Court. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the statement of Babu Ram, it is evident that the aforesaid witness has clearly stated that he does not know who has caused injuries to Mohd Ishaq and who had broken his arm. So far as PWs-Talab Hussain and Nawab Din are concerned, they have categorically admitted that the accused persons had inflicted injuries to his father Gulab Din and him before his other brothers reached on spot. In cross-examination PW Talab Hussain has stated that his father and brother had sustained injuries before he reached on spot. It is also submitted that after him, his younger brother Nawab Din had come on spot. Thus, it is evident that PWs Talab Hussain and Nawab Din were not present on spot when PW Mohd Ishaq was allegedly being inflicted injuries. So far as PWs Puran Chand and Sham Lal are concerned, they have supported the prosecution case. PW Nawab Din has deposed that he has sustained injuries on the head but it is not known to him as to who had inflicted the said injuries. 6. The findings have been recorded by the trial Court on the basis of meticulous appreciation of evidence available on record. The findings recorded by the trial Court can neither be said to be perverse nor based on no evidence. The scope of interference with a judgment of acquittal is well settled. If on re-appreciation of the evidence, another view is possible, benefit has to be given to the accused. 7. In view of the preceding analysis, we are not inclined to grant leave to file the criminal acquittal appeal. Accordingly, the application for leave is rejected. The scope of interference with a judgment of acquittal is well settled. If on re-appreciation of the evidence, another view is possible, benefit has to be given to the accused. 7. In view of the preceding analysis, we are not inclined to grant leave to file the criminal acquittal appeal. Accordingly, the application for leave is rejected. Consequently, memo of the appeal as annexed with the application shall also stand dismissed.