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2017 DIGILAW 823 (JK)

State of J&K v. Davinder Singh

2017-09-08

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Condl(Cr.)No. 129/2014 1. For the reasons stated in the application, which is duly supported by an affidavit, we find that sufficient cause for condoning the delay of 377days in filing the application for leave to appeal is made out. Accordingly, the delay of 377 days in filing the application seeking leave to appeal is condoned. In the result, Condl. (Cr.) No.129/2014 is allowed. SLAA No.144/2014 After perusal of record, we are inclined to grant leave to appeal. Accordingly, SLAA No.144/2014 is allowed. Cr. Acquittal Appeal is taken up on board. Cr. Accquital Appeal No. 136/2014 1. In this Criminal Acquittal Appeal, the appellant has assailed the validity of the judgment dated 13.02.2013, by which the respondents have been acquitted in respect of offence under Sections 307/325/323/341/34 RPC. 2. The prosecution story in nutshell is that on 09.09.2004 at about 9.00 a.m, the accused persons, namely, Jagdeep Singh, Baljeet Singh, Joginder Singh and Ravinder Singh waylaid Avinder Singh when he was riding on a motorcycle. It is the case of the prosecution that the accused Davinder Singh hit him on his forehead with a baseball bat, whereas other accused beat him with lathis, as a result of which he sustained injuries. The cause of the incident is said to be an old animosity between the injured and the accused. One Gurpreet Singh reported the occurrence to the Police authorities by a written report dated 09.09.2004. On the basis of the aforesaid written report, First Information Report for offence under Sections 307/325/323/341/34 RPC was registered against the respondents. The Police after completion of the investigation filed the charge sheet against the respondents. 3. The prosecution in order to prove its case examined seven witnesses, namely, Arvinde Singh, Gurpreet Singh, Jaswant Singh, Ravinder Singh, Dr. Preeti Khosla, Narinder Sharma and Kamlesh Kumar. The trial court vide impugned judgment acquitted the respondents of the offences as aforesaid 4. Unfortunately, despite the matter being taken up in the second round, nobody appears on behalf of the State. We are constrained to peruse the record and have heard learned counsel for the respondents. PW Gurpreet Singh, who was informant with regard to the incident in his evidence, has stated that he had no knowledge about the occurrence. He has further stated that the victim was ever thrashed by the accused persons in his presence. We are constrained to peruse the record and have heard learned counsel for the respondents. PW Gurpreet Singh, who was informant with regard to the incident in his evidence, has stated that he had no knowledge about the occurrence. He has further stated that the victim was ever thrashed by the accused persons in his presence. Thus, testimony of the aforesaid witness is of no assistance to the prosecution case. Admittedly, there is evidence on record that the injured has animosity with the accused persons and their relations were strained. According to the statement of the injured, the occurrence ensured at 9.00 to 9.15 a.m. in the morning on 09.09.2004, whereas from the perusal of the FIR, which was lodged on the basis of written report by the father of the victim, the time of incident was 13:45 hours. 5. From the perusal of the statement of Dr. Kamlesh Kumar, it is evident that he found the injuries, which were detailed by him in his statement on the person of the victim. In his evidence he has further stated that he did not mention the name of person, who brought the injured to the hospital for examination. The injured was not known to him personally. It is stated that the injured had sustained injuries on his forehead, elbow, left arm, teeth and he was complaining of pain in his back and the other parts of the body. Thus, there is no material on record with regard to identification of the victim before the medical expert. In the certificate of medical expert, it has been stated that the injured had an alleged history of assault and in whose presence these injuries were inflicted on the victim has not been mentioned anywhere in the certificate. It is also pertinent to mention that Gurpreet Singh, Jaswant Singh and Gajinder Singh have been examined as witnesses by the prosecution. Jaswant Singh in his cross-examination has stated that Jagdev Singh was not known to him prior to the occurrence. Besides that, it is pertinent to mention that Investigating Officer has not been examined in the case. It is also pertinent to mention here that statement of the injured has not been corroborated by any witness. Corroboration is a rule of prudence and it was of essence in the instant case in view of the assertions in the prosecution story itself. It is also pertinent to mention here that statement of the injured has not been corroborated by any witness. Corroboration is a rule of prudence and it was of essence in the instant case in view of the assertions in the prosecution story itself. The victim and accused had animosity with each other. The trial Court has properly appreciated the material available on record and has come to the conclusion that the prosecution has failed to prove the offence against the respondents. 6. 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 . 7. 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.