HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

CRA No. 23/2019

CrlM No. 417/2019

Reserved on :21.10.2022

Pronounced on: 28.11.2022

Yashvir Singh Son of Kartar Singh R/O Mandi Raj

Ghar Gurah Salathia (District Samba)

….Appellant(s)

Through :- Sh. Rahul Singh Sambyal with

Sh. Jagpal Singh Advocates

V/s

State Though Police Station Vijaypur

….Respondent(s)

Through :- Sh. Vishal Bharti, GA

CORAM:- HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

J U D G M E N T

1. Instant Criminal Appeal is directed by the appellant against the judgment

dated 08-03-2019 rendered by the court of Ld. Pr. Sessions Judge Samba

in file No. 06/Sessions titled State V/S Yashvir Singh and Ors, whereby,

appellant has been convicted and sentenced to undergo rigorous

imprisonment for 7 years in FIR No. 100/2013 for commission of offence

proved u/s 304-II RPC instead of offence u/ss 302/34 RPC charged against

them. Be it noted, that out of the total four (4) accused persons including

the appellant put on trial, remaining three (3) accused persons namely,

Ranvir Singh S/O Kartar Singh, Tapinder Singh S/O Harbans Singh &

Jagdish Singh S/O Kashmir Singh all residents of Mandi Raj Ghar Gurah

Salathia District Samba have been acquitted.

2. Aggrieved of and dissatisfied with the impugned judgment and order dated

08-03-2019, appellant/convict has questioned it‟s legality, propriety and

correctness on the following grounds:-

(i) that the impugned judgment dated 08-03-2019 is against facts

and law, in as much as, the commission of offence u/s 304-II

RPC has not even been proved by the prosecution beyond

reasonable doubt and the trial court has failed to appreciate the

evidence which was brought before it by the prosecution, the

impugned judgment is a result of sheer miss-appreciation of

evidence;

(ii) that the trial court has relied heavily upon the statements made

by eyewitnesses who did not stand the test of cross-examination

2 CRA No. 23/2019

and in categorical terms deposed that appellant fired at the chest

of deceased which itself causes doubt on the presence of

eyewitnesses at the spot of occurrence, as the deceased received

injury upon his thigh which is contrary to the version narrated

by both the eyewitnesses;

(iii) that the court below has totally ignored the medical evidence

produced by the prosecution wherein board of doctors

specifically deposes before the court that the bullet shot

suffered by the deceased could not have been received from

front side of the body of deceased, but the shot was hit the

deceased from the backside of the body which itself is sufficient

ground to create a doubt on the veracity of eyewitnesses;

(iv) that the court below has not appreciated the aspect of the case

that the person who brought the deceased in his car was a

material witness who was intentionally and deliberately

withhold and not included in the prosecution list of witnesses,

moreso, the blood stained clothes of that person were not

seized, prosecution deliberately tried to suppress the material

facts and projected a false story, the so called eyewitnesses who

are none other the real brother and wife of deceased during their

cross-examination could not prove their presence on the scene

of crime;

(v) that the court below has failed to appreciate the fact that

prosecution has failed to establish as to whether the bullet shot

was fired from the gun of accused, in as much as, it is proven

fact that the fired cartridges seized from the spot of occurrence

and three (3) live cartridges recovered from the house of

appellant/convict were not only of different weight but were of

different make, so the argument that bullet was fired from the

gun of appellant has no substance;

(vi) that the prosecution eyewitnesses in one voice have deposed

bef