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2017 DIGILAW 839 (JK)

State through SHO P/S Dharmsal, Rajouri v. Prithvi Raj

2017-09-13

ALOK ARADHE, B.S.WALIA

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JUDGMENT : Alok Aradhe, J. Heard. In this criminal acquittal appeal, the appellant has assailed the validity of the judgment dated 30.12.2013 by which the Trial Court has acquitted the respondents in respect of offences under Sections 307/323/324/325/148 of the RPC. 2. The prosecution story briefly stated is that the complainant Toshi Devi accompanied by Ashok Kumar and Nisha Devi lodged an oral report on 09.03.2002 to the effect that in her absence, respondents at about 5.30 pm who had inimical relations with them, with an intention to eliminate her sons, hit them with Pathi and has inflicted injuries on their person. On the basis of the aforesaid report, the first information report was lodged and the statements of the witnesses were recorded under Section 161 Cr.P.C. The police after completion of the investigation has filed the charge sheet. 3. The prosecution in order to prove its case has examined Toshi Devi, Darshan Lal, Ashok Kumar, Nisha Devi, Vijay Kumar, Sanjeev Kumar, Abdul Zubair, Vinod Kumar, Rajinder Kumar, Ramesh Chander, Katuri Lal, Raghubir Lal, Sardari Lal, Kamal Singh, Ashok Kumar, Dr. Ritu Gupta and Raj Kumar as witnesses. The trial Court vide impugned judgment has acquitted the respondents of the offences alleged against them. 4. Learned Government Advocate submitted that the Trial Court has grossly erred in not believing the testimony of the injured eye witnesses, Ashok Kumar and Nisha Devi as well as Vijay Kumar who was an eye witness to the incident. It is further submitted that Trial Court ought to have appreciated that weapon of offence was recovered by the prosecution. It is also submitted that the trial Court has failed to view the evidence on record in its corrective perspective which has resulted in erroneous findings and the consequent judgment. 5. We have considered the submissions made by learned Government Advocate and have perused the record. The first information report has been lodged by Toshi Devi who is not an eye witness to the occurrence. The names of the other family members of accused Prithvi Raj have been roped in subsequently by way of statements under Section 161 CrPC. PW, Ashok Kumar has stated that the accused Prithvi Raj inflicted two blows on his head with a Pathi as well as on the head of Nishal Devi. He has also stated that the Panches of the Village reaches the spot and rescued them. PW, Ashok Kumar has stated that the accused Prithvi Raj inflicted two blows on his head with a Pathi as well as on the head of Nishal Devi. He has also stated that the Panches of the Village reaches the spot and rescued them. PW, Nisha Devi has also stated that after hearing the noise, PW Roshan Lal, Rajinder Kumar and Ramesh Chander reached the spot and intervened. Whereas PW, Vijay Kumar, an eye witness stated that the accused Prithvi Raj started bearing Nisha Devi with Pathi and on intervention of Ashok Kumar, accused Prithvi Raj also gave blow with Pathi on the head and back of Ashok Kumar. PW, Sanjeev Kumar, has made further addition while in his statement that the accused persons have beaten them which totally belies the prosecution case. PWs, Rajinder Kumar, Ramesh Kumar and Darshan Lal have stated that they reached the spot after hearing the noise. Therefore, they are not eye witnesses to the incident in question. PW, Ramesh Chander, the cousin of the complainant is also stated contrary to the statement recorded by the police under Section 161 CrPC in which he had stated that he reached spot on the next day of occurrence and the incident was narrated to him by the complainant. PW, Vinod Kumar, a shopkeeper has only stated that he was told by the complainant that accused have beaten her. It is also pertinent to mention here that PWs, Ashok Kumar and Nisha Devi, the injured witnesses have denied that there was a verbal duel between PW Ashok Kumar and accused Anita Devi which resulted into physical thrashing of Nisha Devi by Ashok Kumar. However, PW, Toshi Devi has admitted in cross examination that a false and frivolous case has been lodged by the accused against her son Ashok Kumar and the accused have placed on record a copy of the charge sheet under Sections 341/342 RPC. The incident has taken place on 09.03.2002 at 5.30 pm whereas the charge sheet produced by Toshi Devi discloses that verbal altercation took place between Anita Devi and Ashok Kumar which resulted into physical thrashing by both the parties. The incident has taken place on 09.03.2002 at 5.30 pm whereas the charge sheet produced by Toshi Devi discloses that verbal altercation took place between Anita Devi and Ashok Kumar which resulted into physical thrashing by both the parties. The first information report of Toshi Devi was registered as his son Subash Chander was already working as SPO at police station Dharmsal but the complainit lodged by the Prithvi Raj against Ashok Kumar was not registered and was compelled to approach DIG Rajouri-Poonch Range and on the directions of DIG, the first information report was registered against Ashok Kumar. This material fact of verbal altercation leading to quarrel and assault between the parties has been concealed by the investigating agency. 6. PW, Dr. Ritu Gupta has not found any injury on the person of the injured victims caused with sharp edged weapon. The doctor has only found one incised wound on the head of Ashok Kumar which in her opinion could be possible by fall. Thus, testimony of PWs Ashok Kumr and Nisha Devi has not been corroborated by medical evidence. The prosecution has failed to connect the seized weapon of offence with the alleged occurrence. 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.