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2024 Supreme(J&K) 202
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Bhajan Singh son of Tullah Ram - Appellant
Vs.
State of Jammu and Kashmir - Respondents
CRA No. 9900015 of 2004
Decided On : 03-05-2024
Advocate Appeared:
For the Appellant : Mr. Adarsh Sharma Adv.
For the Respondent: Mr. Dewakar Sharma Dy.AG
The reliance on the testimony of a chance witness requires cautious scrutiny, and the absence of proof of motive weakens the prosecution's case.
Headnote:
Conviction - Offences under sections 307/326 RPC
Fact of the Case:
The appellants were convicted of offences under sections 307/326 RPC for attacking and causing grievous injuries to the injured. The injured later died during the trial, and the prosecution heavily relied on the eye-witness account of the occurrence by PW Maqsood Ahmed and medical evidence.
Finding of the Court:
The trial court found the appellants guilty based on the statement of the eye-witness PW Maqsood Ahmed and medical evidence, concluding that the appellants were the authors of the crime.
Issues: The issues revolved around the reliability of the eye-witness account, the credibility of the medical evidence, and the absence of proof of motive for the alleged crime.
Ratio Decidendi: The court found the testimony of the chance witness PW Maqsood Ahmed to be unreliable due to his unnatural conduct and the dim light conditions at the time of the occurrence. Additionally, the medical evidence indicated that the injuries sustained by the injured could have been caused by a fall on sharp-edged stones, casting doubt on the conclusiveness of the assault. The absence of proof of motive further weakened the prosecution's case.
Final Decision: The appeal was allowed, and the appellants were acquitted of the charges due to the unsustainable nature of the conviction based on the unreliable testimony of the chance witness and the lack of conclusive evidence.
JUDGMENT :
1. The present appeal is directed against judgment dated 18.08.2004 passed by the learned Sessions Judge, Kathua [‘the trial Court’ for short] whereby the appellants have been convicted of offences under sections 307/326 RPC. Challenge has also been thrown to order dated 20.08.2004 whereby in proof of offence under Section 307 RPC, the appellants have been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.100/-, whereas, in proof of offence under Section 326 RPC, they have been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/-.
2. It appears that the charge-sheet was laid against the appellants herein before the trial Court alleging therein that on 19.12.1995 at about 9.30 pm, the appellants, who were armed with a Toka, attacked injured PW Gulzar Ahmed while he was proceeding from PDD office, Basohli towards his residence at Chogan, Basohli, as a result of which, the injured PW Gulzar Ahmad received grievous injuries on his head, face and other parts of the body. According to the prosecution case, the assailants launched the aforesaid attack upon the injured with an intention to commit his murder. PW Gulzar Ahmed was found in an injured condition lying on the road near Power House and the police shifted him to the Hospital at Basohli. FIR No. 94/95 for offences under Sections 307/326 RPC and 4/25 Arms Act was registered and the investigation was set into motion.
3. During investigation of the case, statement of the injured was recorded by the Investigating Officer/SHO, Police Station, Basohli. He was subjected to medical examination and the statements of other witnesses under Section 161 CrPC were also recorded. The weapon of offence viz. ‘Toka’ was recovered on the basis of the disclosure statement made by the appellant Bhajan Singh and after investigation of the case, offences under Section 307/326 RPC and 4/25 Arms Act were found established against the appellants. Accordingly, the charge sheet was laid before the trial Court.
4. Vide order dated 01.07.1996, charges for offences under Sections 307/326 RPC and 4/25 Arms Act were framed against the appellants and their plea was recorded. The appellants denied the charges and claimed to be tried. In order to prove its case, the prosecution examined ten out of thirteen witnesses, cited in the challan. The injured PW Gulzar Ahmad is stated to have died a natural death during trial of the case, as such, his statement could not be recorded, whereas the Investigating Officer Ashok Kumar, Sub-Inspector did not step into the witness box. Similarly, the statement of PW Mushtaq Ahmed, witness to the seizure of clothes of the injured has also not been examined by the prosecution.
5. After completion of the prosecution evidence, statements of the appellants under Section 342 CrPC were recorded in which they denied the occurrence and claimed that the prosecution witnesses have deposed falsehood. They further stated that PW Maqsood Ahmaed, the eye witness to the occurrence is the relative of injured PW Gulzar Ahmed, who was residing in the house of PW Maqsood Ahmed and because of this reason he has deposed falsehood. The appellants claimed that they are innocent. The statement of one witness DW Mela Ram was recorded in defence.
6. The learned trial Court, after appreciating the evidence on record, placed heavy reliance upon the statement of eye witness PW Maqsood Ahmed and the medical evidence and concluded that the appellants are the authors of the crime. Accordingly, they have been convicted of offences under Sections 307/326 RPC. The charge for offence under Section 4/25 Arms Act could not be established against the appellants.
7. The appellants have challenged the impugned judgment of conviction and order of sentence on the ground that the learned trial Court has not appreciated the evidence in proper perspective. It has been contended that the prosecution has not proved beyond reasonable doubt the in
