State of J & K vs Tirath Ram

This is acquittal appeal against the judgment passed by the Chief Judicial Magistrate, Kathua on December 20,1994 whereby the learned

Magistrate has acquitted the accused from the charges under sections 148/325 and 323 RFC. The challan was produced against the five accused

of whom accused No. 1, namely, Tirath Ram, is reported to have expired during the pendency of the appeal. So the appeal against him has

become infructuous.

Briefly put the case of prosecution is that the complainant, Thoru Ram, was working in his fields at Chak Dewan Kirpa Ram on 03.07.89 and

was irrigating his land. Accused Tirath Ram and others came on spot and disconnected the irrigation supply line to the field of complainant, and

assaulted the complainant with hands and fists. Accused Tirath Ram was armed with Drath. He struck the drath blow on the left elbow of the

complainant by virture of which his finger was fractured. The matter was reported to the police vide EXPDR. The police investigated the matter

and filed challan against the accused under the aforementioned offences. The accused pleaded not guilty.

The prosecution examined Thoru Ram, PW1, Om Parkash PW2, Shish Kumar PW3, Dr. Rajinder Prasad PW4 and Karam Chand Head

Constable PW5. Accused have examined Bishan Dass in defence. The trial court discussed the evidence, found it full of contradictions gave the

benefit of doubt to the accused and acquitted them. This appeal is in consequence of this acquittal order

The main point taken by the counsel for the appellant is that there is no material contradiction in the statements of the witnesses. The trial court

has erred in appreciating the evidence and acquitted the accused.

Heard the learned counsel for the parties and perused the record,

The first ground of attack taken by the counsel for the appellant is that the trial court has not believed the statement of PW2 Om Parkash on the

ground that he is brother of the complainant and interested witness According to him, statement of PW2 is very material in this case. It cannot be

thrown to winds only on the ground that he is brother of the complainant. So far as this argument is concerned, I agree with the learned counsel for

the appellant that statement of the relation as a prosecution witness cannot be brushed aside only for being a relation. It is well settled that relation

or interested witness also deserves to be given weight according to the particular circumstances of the case. Being an interested witness, the court

is burdened with additional responsibility to scrutinise the statements of the witnesses with due care and caution. Statements of interested witnesses

can be believed safely if the statements are unblemished, correct and cogent. Evidence of such witnesses should be weighed in view of the

particular circumstances of the case. For example, the situation of the occurrence has to be looked into, whether any independent witness came on

spot or were available on the spot, whether the place of occurrence was inhabitated by the population. Why the independent witness could not be

examined, if available, in case place of occurrence is such that no independent witness could be available or has seen the occurrence took place in

such circumstances where no witness is available except the relation, the matter is different. All these circumstances are to be looked into and

every witness, if he is a relation, he is given due weight according to the circumstances in which this deposition has been recorded. Here, in this

case, I have gone through the evidence. It is manifestly clear that there are material contradictions in the statements of witnesses. PW1 is the

complainant, PW4 is Doctor and PW5 is the Investigating Officer. Only PWS 2 and 3 are the eye witness to the occurrence. The complainant has

deposed that his left arm was hit by the drath stroke. It is PWs 2 and 3 who came on spot and saved him. He has further stated that accused

assaulted PW2 also. So virtually PW2 is not only brother of the complainant, but is cocomplainant also. Complainant has again deposed that Kaka

Ram being the material witness has been given up, so inference goes against the prosecution. PW2 who is the brother and the cocomplaint has

categorically stated the right arm of the complainant was hit by the accused and has thus contradicted the complainant himself who says that his left

arm was hit and finger was fractured. Animosity between the parties is admitted because accused Tirath Ram's daughter was married to the

brother of complainant who divorced her. So much reliance cannot be laid on the statement of PW2, who besides being brother of complainant,

himself is a cocomplainant, his statement suffers from material contradiction. There remains only one witness who is PW3. He too seems not to be

independent witness. He has admitted that he was employed by the complainant in his field as a labourer. Secondly, this witness also has admitted

that he lives in Hiranagar which is far off from the place of occurrence and occurrence according to him took place at Manak Talab and not at

Chak De.wan Kirpa Ram. These two villages are differently situated. So this K a material contradiction in the statements of the witnesses. It is very

difficult to base conviction solely on such statements. No error seems to have been committed by the court below. The impugned judgment calls

for no interferences, the appeal is dismissed