HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRAA No. 26/2015
Reserved on : 28.11 .2024
Pronounced on : 29 .11.2024
State of Jammu & Kashmir
…. Petitioner/Appellant(s)
Through SSP,Poonch.
Through:- None
V/s
1. Gurdeep Singh S/o Puran Singh
2. Devinder Kour W/o Late Puran Singh
3. Prithpaul Kour D/o Puran Singh
All residents of Ward No.3 Mohalla Dongus
Poonch
..... Respondents
Through: Mr. Vaibhav Gupta, Advocate
CORAM : VINOD CHATTERJI KOUL, JUDGE
HON’BLE MR. JUSTICE
JUDGMENT
1. The instant appeal is directed against the judgment dated 16.01.2015 (
impugned judgment ) passed by the Court of learned
for short ‘ ’
Sessions Judge, Poonch a case titled State
( for short ‘Trial Court’) in
vs. Gurdeep Singh and others, whereby respondents herein have been
acquitted of the offences punishable under Sections 304, 34 RPC.
2. Aggrieved by the acquittal of the respondents, the State has preferred
this appeal.
3. The prosecution case, in brief, starts when the deceased-Daleep Kour
lodged an oral report before the Police Station, Poonch which was
entered in DDR No.10, wherein she alleged that on 24.07.2008, she
and the accused persons, namely, Devinder Kour, Prithpaul Kour and
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Gurdeep Singh, had a scuffle because the accused were throwing the
mud in front of her house which was spoiling their courtyard which
resulted into exchange of hot words and abuses and the accused
persons also started beating her with fists and kicks, however, some
persons from the locality reached and rescued her. Daleep Kour was
taken to the doctor by the police where she was medically examined
as outdoor patient (OPD). On her medical examination the doctor
noticed certain bruises on the forearms and ring finger on her left
hand. After given first aid she was discharged. As per the opinion of
the doctor injuries were simple in nature and caused by blunt object
and duration of injuries at that time was within 24 hours. Daleep Kour
remained in her house up to 12.08.2008, the date when she was
readmitted in the District Hospital, Poonch under MRD No.656 as a
case of 'Acute Abdomen Pain with Hypertension and Epistasia'. On
13.08.2008 she was referred to GMC Hospital, Jammu as a case of
T2DM with Bronchopneumonia, Septicemia with Azotemia and died
on 16.08.2008 at about 10.15 pm. Her body was taken by her relatives
on the same day without getting the postmortem conducted. On
17.08.2008 the cremation was done at Poonch. On 09.09.2008, her
husband, Jaswant Singh, came forward with a complaint and the
present case came to be registered on the basis of an order passed by
the Chief Judicial Magistrate Poonch under Section 156(3) Cr.P.C
averring therein that on 24.07.2008 all the three accused persons with
common criminal intention restrained his wife on the way and started
assaulting her as a result whereof she received injuries on her body
and the blood was coming out from her mouth. The deceased then
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lodged the report on the said date, i.e., 24.07.2008 and was medically
examined and after referring to GMC, Jammu on 13.08.2008 died on
16.08.2008. On this, FIR No.189/2008 for offence under Sections
304, 34 RPC was registered with Police Station Poonch and during the
course of investigation. Police prepared the site plan, recorded the
statements of the witnesses under section 161 Cr.P.C. and under
Section 164 Cr.P.C. and due to the curfew imposed at Jammu during
those days when all the doctors of GMC Jammu were on strike the
postmortem of the deceased could not be conducted. The last rites of
the deceased were conducted at Poonch. After completion of
investigation offence under Section 304, 34 RPC were established
against all the accused persons/ respondents, namely, Gurdeep Singh,
Devinder Kour and Prithpaul Kour.
4. The Trial Court vide order dated 24.06.2010, charged both the
respondents with commission of offences punishable under Sections
304, 34 RPC. Respondents, however, pleaded not guilty and claimed
to be tried and opted to face trial, so prosecution was directed to lead
evidence.
5. The Trial court after framing of charges and recording evidence and
on appreciation of evidence found that offences not proved and
dismissed challan and acquitted the accused. The Trial court
concluded it as a case of natural death, because deceased was
suffering from ‘Acute Abdomen Pain with Hypertension and
Epistasia’ and on 13.08.2008 deceased was referred to GMC Hospital
Jammu as a case of T2DM with Bronchopneuonia, Septicemia with
Azotmia due to which she died on 16.08.2008 at GMC Jammu.
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6. Before the Trial Court, the Prosecution examined Jaswant Singh
(PWl), Gurcharan Singh (PW2 ), Parvinder Singh ( PW3), Ranjeet
Singh (PW4), Balbir Singh (PW5), Rasmeet Singh ( PW6 ), Tuffail
Hussain (PW7), Dr. Raj Kumar (PW8) and Inspector Kuldeep
Khajuria (PW9).
7. Impugned judgment dated 16.01.2015 is being challenged by
appellant on following grounds
:-
i. Impugned judgement is against law and facts of the case;
ii. Trial Court has mis-appreciated the evidence and
misconstrued the law attracted to the facts of the present
case, as such, judgment impugned is liable to be set aside on
this score also;
iii. Trial Court by ordering acquittal of the accused have
committed grave error in law which has resulted in passing
of the impugned judgment;
iv. Prosecution has successfully proved the allegations leveled
against the respondents/accused persons but even then the
Trial Court has ordered their acquittal.
8. To appreciate the grounds taken in the appeal and the submissions
made by learned counsel for parties, it becomes necessary to give
resume of the statements of witnesses produced by prosecution and
recorded by the Trial Court hereunder:-
a) PW1 (Jaswant Singh), PW3 (Parvinder Singh) and PW4 (Ranjeet
Singh) are not the eye witnesses of the occurrence because they
have stated that the reached on spot after the occurrence. PW l and
PW3 have stated that they were at the Tool Tax Office from where
they sent PW2, their employee to their house to collect the slips of
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Tool Tax and when PW2 returned and narrated the occurrence to
them, they then went on spot and saw the deceased-Daleep Kour
lying on the ground in unconscious conditions wherefrom she was
shifted to District Hospital Poonch.
b) PW4 has also stated that when PW2 told him regarding the
occurrence he also reached on where the deceased told him about
the occurrence.
c) PW5 (Balbir Singh) has stated that when he came to the house of
PWl at about 9 am, he saw the quarrel between the accused
persons and the deceased but he pacifies them. The deceased died
in Jammu hospital on16.8.2008. He has further clarified it that he
has seen neither PW l nor PW2 or PW4 on spot. He has admitted
that his statement u/s 164-A CrPC was recorded which has been
proved vide EXPW5 in which he has stated that during the course
of quarrel the accused Davinder Kour, Prithpaul Kour and Gurdeep
Singh had caught hold Amrit Kour. The accused Prithpaul Kour
caught hold Amrit Kour from the hair whereas Devinder Kour was
assaulting Amrit Kour. The spade was in the hand of Gurdeep
Singh who gave blow from the back side of the spade on the back
of Amrit Kour. He snatched the spade from the accused Gurdeep
Singh. There was only the daughter-in-law of Amrit Kour at home
at that time. There was no external injury apparent on Amrit Kour
but Amrit Kour sat down having her hands on her abdomen. His
statement that the accused Gurdeep Singh assaulted the deceased
on the back with the spade is not even substantiated by the eye
witness PW2.
d) PW2 (Gurcharan Singh) is the person who according to
prosecution is the eye witness in whose presence the occurrence
took place and he is the person who informed PW l, PW 3 and PW
4 regarding the occurrence. PW 2 has admitted that his statement
u/s 164-A CrPC was recorded which has been proved vide EXPW
2 in which he has stated that on the day of occurrence i.e., 24. 7.
2008 when he went to the house of the deceased in order to collect
the slips of tool tax asked by PW1 and PW4, saw that the accused
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were putting mud which was objected by the deceased whereafter
the lady accused caught hold the deceased from the hair and the
accused Devinder Kour started assaulting her .The accused
Gurdeep Singh also came having spade in his hands but at this
stage he thought that the quarrel would take place and he will be
arrayed as witness by the police, as a result of which, he fled away
from the spot and went to PW l at Shere-e-Kashmir bridge and told
him regarding the occurrence. This witness has not stated that the
accused Gurdeep Singh has assaulted the deceased with the spade.
He has only stated that Gurdeep Singh was having spade in his
hands and the lady accused caught hold the deceased from her hair
whereas accused Devinder Kour assaulted her. He has not stated
how or by what weapon Devinder Kour assaulted the deceased.
e) PW6 (Rasmeet Singh) has stated that after returning from the
tuition on 24.7.2008 he saw that the accused were putting mud on
the road which was objected by his grandmother, the deceased due
to which altercation took place between them and the accused
Prithpaul Kour and his grandmother caught hold the hairs of one
and another, the accused Devinder Kour assaulted his grandmother
with lathi whereas the accused Gurdeep Singh inflicted the blow of
spade upon his grandmother as a result of which his grandmother
fell down. Thereafter all the accused persons assaulted her with
first and kicks. Balbir Singh came on spot, rescued his
grandmother and snatched the spade from accused Gurdeep Singh.
Blood was coming out from the nose of his grandmother. His
grandfather came on spot and took his grandmother to the hospital.
There is no mention of spade in his statement recorded u/s 161
Cr.P.C.
f) PW7 (Tuffail Hussain) has stated that in July 2008 he saw that the
wife of PW l was caught hold by the accused persons who were
assaulting her.
g) PW8 (Dr. Raj Kumar) is the doctor expert who on 24.7.2008 after
examination of the deceased Daleep Kour as MLC No. 4933 in
District hospital Poonch issued the certificate proved vide EXPW8
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in which he has certified that the injuries of bruises over both arms
and hand of finger ring were found and according to him these
injuries were simple in nature caused by blunt object and the
duration of which was 24 hours.
h) PW9 (Inspector Kuldeep Khajuria) is the person who has
investigated the case and has proved offences u/Ss 304, 34 RPC
against the accused persons. The said witness has obtained during
the course of investigation the record of the injured vide MLC No.
4933 dated 24.7.2008 issued by Medical Superintendent District
hospital Poonch marked as Mark-9/C which is testimony to the fact
the deceased Daleep Kour was examined in casualty on 24.7.2008
at 9 am as a case of assault under registration No. 4933 and was
again admitted on12. 8. 2008 under MRD No. 656 as a case of
acute abdomen with hypertension and epstasia. As ENT Surgeon
was on leave, so the deceased was referred for further management
to CMC Jammu on 13.8.2008.
9. Perusal of the record would show that in the instant case post-mortem
of the deceased-Daleep Kour has not been conducted. A contention in
this regard has been made that the doctors on the date of death of the
deceased were on strike at GMC Jammu. Contrary to this contention,
respondents in order to prove that on the date of death of the deceased,
doctors were not on strike, have placed on record a certificate issued
by Professor & Head, Department of Forensic Medical & Toxicology,
Govt. Medical College, Jammu dated 20.04.2013 showing therein the
th
details of the post-mortem cases conducted on 16 August 2008 of the
th
deceased Harbans Lal and another deceased unknown and on 17
August, 2008 of deceased Chunni Lal. Record further shows that it
has been certified by Medical Superintendent, District Hospital,
Poonch, that the reason for shifting of the deceased from Poonch
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Hospital to Govt. Medical College, Jammu, was only in order to get
her examined by ENT which was not available at that time at District
Hospital Poonch.
10.From the perusal of the statement of the prosecution witnesses, it is
clear that the eyewitness PW Gurcharan Singh has not stated anything
about the accused for using the spade in the occurrence, as such,
causing injury with spade to the deceased does not arise.
11.PW6 (Rasmeet Singh) has come up with altogether different version.
According to him, the accused-Devinder Kour assaulted his
grandmother (deceased) with the blow of lathi and accused-Gurdeep
Singh inflicted the blow of spade upon the deceased as a result of
which his grandmother fell down, however, there is no mention of
spade in his statement recorded under Section 161 Cr.P.C. None of the
prosecution witness or even PW2-Gurcharan Singh alleged
eyewitness has stated about the using of Lathi and so far as inflicting
of injury with the blow of spade is concerned, PW Gurcharan Singh
who is the eyewitness has stated that spate was in the hand of
accused-Gurdeep Singh; he has not stated that Gurdeep Singh
inflicted any blow with the spade upon the deceased, as such, the Trial
Court has rightly rejected the statement of PW6 (Rasmeet Singh).
12.The well settled law is that the function of a court in a criminal trial is
to find out whether a person arraigned before it as accused is guilty of
offence with which he is charged. For this purpose, the court scans the
material on record to find out whether there is any credible, reliable
and trustworthy evidence on the basis whereof it is possible to convict
the accused and to hold that he is guilty of offence with which he is
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charged. The burden to prove ingredients of offence is always on
prosecution and it never shifts to the accused.
13.The judicial precedence reported in the case of Prithipal Singh v.
State of Punjab, 2012 (1) SCC 10, assumes significance on that
count. There it has been held as follows: -
“This court has consistently held that as a general rule the court
can and may act on the testimony of a single witness provided
he is wholly reliable. There is no legal impediment in
acquitting a person on the sole testimony of a single witness.
But if there are doubts about the testimony, the court will insist
on corroboration. In fact, it is not the number or the quantity,
but the quality that is material. The time-honoured principle is
that evidence has to be weighed and not counted. The test is
whether the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid emphases
on value, weight and quality of evidence, rather than on
quantity, multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely on a
solitary witness and record acquittal. Conversely, it may acquit
the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence...”
14.The law settled in the aforesaid judgement is that as a general rule the
court can and may act on the testimony of a single witness, provided
he is wholly reliable and there is no legal impediment in acquitting a
person on the sole testimony of a single witness, but if there are
doubts about the testimony, the court will insist on corroboration. It is
not a number or quantity, but the quality that is material and time-
honoured principle is that the evidence has to be weighed and not
counted. So, the test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise. The legal system has
laid emphasis on value, weight and quality of evidence, rather than on
quantity, multiplicity or plurality of witnesses. Thus, it is open to a
competent court to fully and completely rely on a solitary witness and
record the acquittal and conversely it may acquit accused in spite of
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testimony of several witnesses if it is not satisfied about quality of
evidence.
15.Applying the ratio of the law laid down, as aforesaid, to the facts of
the instant case, the statements of witnesses discussed above are not
sufficient to convict the accused/respondent. There is infirmity in their
statements that render them weak, fragile, incoherent or improbable.
16.The argument of the counsel for accused that there are discrepancies
in the statements of the prosecution witnesses is an argument when
tested on the touchstone of the instant case shows that the prosecution
has failed in discharging its burden to prove that the accused/
respondents have committed the crime imputed to them.
17.There are glaring contradictions between the testimonies of the
prosecution witnesses. The Trial Court in terms of judgement
impugned has rightly held that prosecution has miserably failed to
connect the accused-respondents with the commission of the alleged
offences. The Trial Court has properly appreciated the witnesses
produced before it and appreciation of witnesses by the Trial Court
does not suffer from any illegality or irregularity, therefore, the instant
Appeal is held to be without any merit and, as such, the order of
acquittal dated 16.01.2015, passed by the learned Sessions Judge,
Pooch is upheld.
18.In the result, the appeal is dismissed.
(VINOD CHATTERJI KOUL)
JUDGE
JAMMU
29.11.2024
BIR
Whether the order is reportable: Yes/No
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