The court upheld the trial court's acquittal, finding the prosecution's evidence insufficient and the eyewitness testimonies unreliable.

JUDGMENT :

OSWAL, J

1. This acquittal appeal arises out of the judgment dated 07.03.2009 passed by the court of learned Sessions Judge, Samba (hereinafter to be referred as ‘the trial court’) in case titled, ‘State vs. Tilak Raj & others’, whereby the respondents have been acquitted of the charges for commission of offences under Section 302, 148, 149 and 447 RPC.

2. The judgment has been impugned by the appellant on the grounds that the learned trial court has not rightly appreciated the evidence led by the prosecution and has acquitted the respondents erroneously.

3. Mr. Amit Gupta, learned A.A.G, has vehemently argued that the learned trial court has not properly appreciated the evidence and once the appellant had proved the commission of offence by the respondents, the learned trial court could not have acquitted the respondents, more particularly in view of the cogent and convincing evidence of the eye witnesses.

4. Per contra, Mr. Rohan Nanda, learned counsel for the respondents, has submitted that the evidence of the so-called eye witnesses examined by the prosecution was not trustworthy and as such, the learned trial court has rightly acquitted the respondents.

5. Heard learned counsel for the parties and perused the record.

6. The story projected by the prosecution is that on 08.02.1996, the complainant i.e. PW 1-Kamala Devi reported orally at Police Station, Hiranagar that on 07.02.1996 at 10 PM when her husband had gone out of his room to urinate, the respondent-Tilak Raj, who was armed with Dharat along with other accused persons, namely, Ashwani Kumar, Ajay Kumar, Des Raj, Sheelo Devi and Anuradha arrived on spot. Ashwani Kumar and Ajay Kumar caught the deceased and the accused Des Raj, Sheelo Devi and Anuradha exhorted the other accused to kill the deceased-Dharam Pal, as they wanted to see her (complainant) as a widow. The accused Tilak Raj inflicted injury on the head of the deceased with Dharat while other accused persons hit the deceased with fists and blows. Subash Chander, Faqir Chand and Kamala Devi i.e. the mother of the deceased were present on spot but were not able to rescue the deceased as the accused Tilak Raj was armed with Dharat and had threatened that he would kill anyone, who would come to rescue Dharam Pal. Thereafter, he fled from the spot. Her husband was taken to hospital at Samba, where from he was referred to Government Medical College, Jammu. On receipt of this information, FIR No. 21/1996 was registered by Police Station, Hiranagar for commission of offences under Sections 307, 147, 148, 448 RPC. The injured Dharam Pal came to demise on 09.02.1996 and as such, offence under Section 307 RPC was substituted by offence under section 302 RPC.

7. During investigation, the site plan was prepared and the accused Tilak Raj himself produced the weapon which was seized by the Investigating Officer. The Investigating Officer concluded the investigation and established the offences 302, 148, 149 and 447 RPC against the respondents and accordingly filed the charge sheet against the respondents on 04.04.1996 before the court of learned Munsiff (JMIC), Hiranagar, which was committed to the learned trial court on the same date itself. The learned trial court vide its order dated 28.06.1996 charged the respondents for commission of offences under Sections 302, 148, 149 and 448 RPC and directed the prosecution to lead evidence. Out of 20 witnesses cited by the prosecution, the prosecution has examined 18 witnesses. The respondents did not lead evidence in defence and the learned trial court after hearing the parties acquitted the respondents.

8. In order to appreciate the contention of the appellant that the learned trial court has not rightly appreciated the evidence, it is necessary to have brief resume of the relevant portion of the prosecution evidence.

9. PW 1, Kamlo Devi(wife of the deceased husband had gone out of the room to the compound to urinate when the accused persons came there and started beating her