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CRA No. 9900016/2003

Decided On: 16.11.2018

Appellants: Mohd. Ashraf and Ors.
Respondent: State of J&K

Hon'ble Judges/Coram:
Sanjay Kumar Gupta


Sanjay Kumar Gupta, J.

1. This Criminal Appeal is preferred by the appellants-Mohd Ashraf and Mehtab Din, who have been convicted by the learned Sessions Judge, Poonch, vide impugned judgment dated 31.03.2004, and sentenced to undergo rigorous imprisonment for a term of three years under sections 324/34 RPC and to pay fine of Rs. 5000/- each and in default of payment of fine, the accused would further suffer rigorous imprisonment for one year.

2. Learned counsel for the appellants has challenged the impugned judgment of sentence on the ground that the same is against law and facts of the case. The prosecution in order to prove its case had produced as many as 08 witnesses, whereas the defence counsel has produced only one witness. Learned counsel for the appellants submitted that the trial court has committed an error while convicting the appellants for offences punishable under sections 324/34 RPC as the guilt has not been brought home to the appellants at all; that the Court below has not properly appreciated the evidence brought on record. All the witnesses, who have deposed against the appellants, are in fact interested witnesses; that the trial court has taken into consideration the circumstances, which have never been put to the appellants in terms of section 342 of Cr.P.C. It is further stated that the Investigating Officer has not been produced during the trial to sustain the charge. Therefore, a very important and material prosecution witness and the author of the case has not been produced, who could have thrown light to his case. It is further argued that there was a personal enmity between the parties and a counter case was also filed by the appellants against the victim which was challenged before the Court below under section 452 RPC. However, on account of a compromise that challan was not pressed; that there is no chain of evidence of appellants' connecting with the commission of offence and the expert opinion with regard to the weapon of offence has not been supported by the prosecution, which also goes against the plea of prosecution.

3. On the basis of aforementioned submissions, learned counsel for the appellants has prayed that the instant appeal be allowed and the impugned judgment of sentence be set aside. In support of his submissions, learned counsel for the appellants has placed reliance on the judgments of the Supreme Court in the cases titled Lakshmi Singh v. State of Bihar, reported in MANU/SC/0136/1976 : 1976 AIR (SC) 2263; and T.T. Antony and another vs. State of Kerala and Ors., reported in MANU/SC/0365/2001 : 2001 AIR (SC) 2637 and judgment of High Court of Patna in the case titled Sarjug Pd. Singh and Ors. Vs. State of Bihar, reported in MANU/BH/0209/1983 : 1984 CriLJ 1086 and judgment of High Court of Orissa in the case titled State of Orissa vs. Sarat Chandra Puri., reported in MANU/OR/0130/1989 : (1990) CriLJ 814.

4. Per contra, learned State counsel has supported the impugned judgment of sentence stating that the same has been passed after appreciating the evidence available on record by the learned trial Judge and no other view is possible than what has already been taken by the Court below.

5. The case set up by the prosecution, briefly stated, is that on 18.06.1994, the authorities of Police Station, Mendhar recorded the statements of the injured persons, namely, Mohd. Kabir and Faizu Khan in the Sub District Hospital, Mendhar and on the basis of these statements, a case for offences under sections 307/34 RPC was registered at Police Station, Mendhar vide FIR No. 12........