JUDGMENT

SHAIIZAD AZEEM-J

1. This acquittal appeal is directed against the judgment dated 07 August 2012 passed by the learned Additional Sessions Judge, Kathua ("the trial Court") in File No. 76/Session titled State Vs. Balwinder Kumar alias Bittu, whereby the trial Court has acquitted the respondent accused, Balwinder Kumar of the offences punishable under Sections 302/341 RPC read with Section 4/25 of Arms Act.

PROSECUTION CASE

2. The prosecution case, in brief, is that accused was sent up for trial on the accusation that, owing to a long-standing enmity, on 19 July 2002 at 6:30 PM, when Nasib Chand (deceased) was returning home after irrigating his fields and had reached near the house of Karan Singh S/o Vakilu Ram R/o Badala, the accused stabbed the deceased in the back with a Kirch (sharp-edged weapon). The occurrence stated to have taken place in a lane (Gali) of the village following a daytime quarrel.

3. The deceased had died enroute to the hospital. PW-1 Gulshan Kumar is said to have lodged a report on 19 July 2002 at 7:50 PM.

4. During investigation, all the codal formalities were completed, including recovery of alleged weapon of offence pursuant to the disclosure made by the accused.

5. It is noteworthy that, on completion of investigation, the police presented the challan only against the accused, though investigation into the alleged occurrence had also been conducted against his two brothers, namely, Sohan Lal and Raj Kumar, respectively.

FINDINGS OF THE TRIAL COURT

6. While recording the judgment of acquittal, the trial Court took into consideration the contradictions regarding who reached the spot first and where witnesses were at the time of occurrence. Although independent witnesses were available, only PW-8 Kiran Jyoti was cited as one; she too turned hostile. The injuries sustained by the accused were omitted from the statements recorded under Section 161 Cr.PC, according to the trial Court, this omission amounted to an improvement that cast doubt on the prosecution story. The recovery of weapon of offence was not proved. Learned trial Court further held that the medical and other evidence was insufficient. Accordingly, while granting benefit of doubt, the accused was acquitted.

GROUNDS OF CHALLENGE AND SUBMISSIONS

7. The judgment of acquittal is challenged on the ground that the statements of material eye-witnesses, namely, PW-2 Kanta Devi, and PW-3 Chaya Devi, have been discarded by the trial Court without any justifiable reason. It is further contended that the prosecution proved that the occurrence took place following a daytime altercation, yet the trial Court discarded the testimonies of the prosecution witnesses, who happen to be the relatives of the deceased, contrary to settled principles of law.

8. It is also urged that non-examination of independent witnesses, did not render the prosecution case unbelievable, particularly when it is supported by medical evidence showing that the deceased was done to death by stabbing. The petitioner, therefore, prays that the impugned judgment be set aside.

9. Ex Adverso, learned counsel for the respondent has argued in line with the reasoning given by the trial Court in the judgment under challenge. The same shall be taken note of at the appropriate stage.

ANALYSIS

10. The respondent earned the judgment of acquittal by deriving benefit of doubt. The trial Court reached this conclusion on the basis of: (i) contradictions appearing in the testimonies of the eye-witnesses; (ii) absence of independent witnesses; (iii) failed to explain the injuries sustained by the accused; (iv) non-recovery of weapon of offence; and (v) the medical and other evidence being insufficient to bring home the guilt against the accused.

11. On a perusal of the record, it is seen that the prosecution case is based on direct evidence supplied by the widow, daughters and sons of the deceased.

12. Prosecution has heavily relied upon; PW-1 Gulshan Kumar, (accuser/son), PW-2 Kanta Devi (Widow