The judgment emphasizes the importance of obtaining sanction under Section 197 of Cr.P.C. for offences alleged to have been committed by public servants while acting in the discharge of their official duty. It also highlights the necessity of charges being framed for the specific offences alleged.

JUDGMENT :

1. This appeal has been filed against judgment and sentence passed by the learned Principal Sessions Judge, Kathua, (for brevity ‘trial Court’) vide order dated 24.11.2010 and 30.11.2010, whereby the appellants have been convicted for offences punishable under Sections 307/109 RPC and have been sentenced to undergo rigorous imprisonment for a period of 10 years and also fine of Rs.25,000/.

2. The brief facts of the case are that a written complaint was filed by Balwinder Kour stating therein that at about 10.30 am she was standing at Dayala Chak waiting for Matador to proceed to Sherpur to get medicine and Kewal Singh of her village came near her and she requested him for lift and they proceeded towards Sherpur and when they reached crossing the police personnel standing therein about 5-6 signalled to stop and asked them as to where they are going and they told them that they are going to Sherpur to purchase medicines but they refused to listen. In the meantime one constable on duty tried to force her to get down. Kewal Singh got down and he talked something with them and sat in the car and started driving and told the constables that if they want to enquire anything more they are proceeding to Chadwal police post and they can come there. As they started driving two constables followed them and when they reached near Hiranagar they fire upon them and their scooter collided with a pole and they fell down. One constable took another scooter, which was being driven by a civilian and again started chasing them. When the car reached on the bridge near Dayala Chak, the constable again fired at them and Kewal Singh was hit in the abdomen and he collapsed.

3. The order of conviction and sentence passed by the trial Court has been challenged by the appellants, precisely on the following grounds:-

(i) that the impugned judgment is the result of mis-appreciation of facts and mis-application of law;

(ii) there was no evidence which connected the accused/appellants to any such incident or occurrence in question and by complete mis-appreciation of the evidence have been sentenced held guilty by the trial Court and sentenced and they have been convicted and sentenced under the impugned judgment with respect to an incident which the evidence would suggest never occurred or at least was put up in such a way by the complainant as to carve out a story for which, there was no factual background, thus, the impugned judgment and order of sentence are liable to be set aside;

(iii) that the appellants have been charged under Sections 307/34 RPC and have been convicted under Section 109 of the RPC in the impugned judgment there is no finding of convicting the accused/appellants under Section 307 and that the very fact that accused were charged for having committed offences under Sections 307/34 RPC and having been convicted for Section 109 RPC, would indicate the wholly illegal character of the impugned judgment and order of sentence and that the prosecution evidence itself would show that there was no such occurrence attributable to the accused as had been manufactured by the complainant and his other witness Balvinder Kour for which there was no any evidence in existence even at the stage of investigation;

(iv) that the Investigating Officer of the case has not been examined, which itself as the facts would show to this Court was such a fact that had resulted in such prejudice to the appellants and they were entitled to acquittal only by reference to the said fact of the Investigating Officer not having been examined in the case;

(v) that the independent witnesses including that the father of the alleged injured had been declared hostile, as they according to prosecution story had not supported the prosecution version;

(vi) that the trial Court has infact proceeded in the matter by using the statements recorded of the appellants under Section 342 as substantive evidence against them, which has been done when the basic story of the prosecution was