State Of Jammu & Kashmir vs S.Mohan Singh & Anr

Prosecution case, in short, was that a dispute was going on between Yush Paul Singh son of Ram Lal and one Titu, nephew of Balwant Singh, on the one hand and the two respondents on the other hand and for resolving the same, a meeting was convened on 23rd July, 1985 at 6.00 p.m. on the bank of river near Gurdwara in village Sawan Chak. In the said meeting, no decision could be arrived at, as such, respondent No. 1 S. Mohan Singh is said to have left the meeting in the midway and other people also dispersed after this. Thereafter, Ram Lal heard cries of his son Yush Paul Singh from the compound of Gurdwara and on arrival there, he found that respondent No. 1 had caught hold of Yush Paul Singh and respondent No. 2 was inflicting injuries upon him with knife. Seeing this, Ram Lal made an attempt to catch hold of respondent No. 2 in order to save his son but in the meantime, respondent No. 1 is said to have hurled a stone on him, as a result of which, Ram Lal sustained injuries and fell down. Apart from Ram Lal, the occurrence is said to have been witnessed by Babu Ram (PW 6), Pritam Singh (PW 4), Balwant Singh and Satnam Singh. Thereafter, Yush Paul Singh was immediately taken to the hospital on a truck where the doctor declared him dead. Thereupon, Ram Lal accompanied by witnesses, Pritam Singh and Balwant Singh went to Kathua police station to lodge a first information report where upon the statement of Ram Lal, a case was registered by the police on the same day i.e., on 23rd July, 1985 at 7.20 p.m. against the respondents. The police after registering the case, took up investigation and on completion thereof submitted charge-sheet, on receipt whereof the learned Magistrate took cognizance and committed the respondents to the court of Sessions to face trial.

Defence of the accused persons was that they were innocent, had no complicity with the crime, no occurrence much less the occurrence alleged had taken place and the prosecution party had received injuries in some other manner of occurrence at some other place inasmuch as they have been falsely roped in in this case to feed fat the old grudge.

Out of five eyewitnesses, witnesses Balwant Singh and Satnam Singh could not be examined during trial for the reasons, which were beyond the control of prosecution. The trial court has found and recorded, as such in its judgment that on several dates in the years 1986 and 1987, these witnesses were produced by the prosecution for their examination but on all the occasions, the accused took time in the case and did not allow the prosecution to examine them. Thereafter, when the witnesses did not appear, the trial court issued warrants of arrest against them on request being made by the public prosecutor. But all the time, they were found absent from their houses and it was reported that they had gone out for discharging their professional duties as drivers. From the aforesaid facts, it becomes clear that the prosecution was all the time ready and willing to examine the witnesses and had taken all possible steps for their examination but they could not be examined for the reasons beyond their control. As such, the High Court was not justified in drawing adverse inference against the prosecution for non-examination of these two witnesses. The next eyewitness was Pritam Singh who was examined as prosecution witness in court. This witness supported the prosecution case by saying that a meeting was convened for resolving dispute between the parties but as the same could not be resolved, respondent No. 1 who was also present in the meeting, left the place. He admitted that he heard Yush Paul Singh crying but has not supported the prosecution case in relation to respondent No.1's catching hold of the deceased and respondent No. 2 assaulting him with a knife, although this witness in his statement made before the police had specifically mentioned these facts. This witness further stated in court that he took Yush Paul Singh along with other injured to the hospital where the doctor declared Yush Pal Singh dead and thereafter he accompanied Ram Lal to the police station. In our opinion, this witness has supported the prosecution case to a great extent, excepting the part played by the respondents, in his statement made in court and as he was gained over by the defence, he did not support the prosecution case in relation to part played by the respondents though presence of respondent No. 1 S. Mohan Singh in the meeting has been admitted by him.

Having perused the two judgments rendered by the trial court and the High Court and the evidence adduced on behalf of the parties, we are of the view that the trial court was quite justified in recording the order of conviction and the order of acquittal rendered by the High Court suffers from the vice of perversity and is liable to be set aside.

In the result, the appeal in relation to respondent No. 1 S.Mohan Singh is allowed, the order of his acquittal rendered by the High Court is set aside and his conviction recorded by the trial court is restored. The respondent No. 1 is directed to be taken into custody forthwith to serve out the remaining period of sentence. The appeal in relation to respondent No. 2 S. Prithpal Singh has abated in view of the fact that he died during the pendency of this appeal.