RAJINDER KHAJURIA Vs. STATE OF J&K

JUDGEMENT

(1.) THIS appeal is against the judgment of the 1st Additional Session Judge, Jammu dated 06.09.1988 by which the appellant has been sentenced to five years rigorous imprisonment with a fine of Rs. 1000/ -. The appellant was charged for the offence of murder of one Raj Kumar alias Raju on 30.01.1985. The allegation against him and the co -accused is that one the morning of 30.01.1985 when P.W. Jugal Kishore and Sudhir Kumar were accompanied by Raj Kumar, reached Purani Mandi, suddenly the appellant alongwith Sanjay and Kamaljit Singh absconding accused appeared on the scene. While the appellant and sanjay caught hold of the deceased, Kamaljit Singh stabbed him with a "Shoora". On receipt of the injuries the deceased cried. Both the witness tried to catch hold of the assailant but ran away. The appellant was tried in the absence of main accused -Kamaljit Singh who was proceeded under section 512 Cr.P.C. the appellant was found guilty the convicted under section 326 R.P.C. by order dated 30.08.1988. The reasons which weighed with trial court for acquitting the accused under section 302/R.P.C. and convicting him under section 326/34 R.P.C. are found in para 37 of the judgment which is extracted below:

(2.) HOWEVER , subsequently, Kamaljit Singh was also tried to the charge of murder. He was, however, acquitted by the same court by judgment dated 28.11.1994. Para 7 of this judgment reads as under:

(3.) THE question arises whether Kamaljit Singh gave the fatal blow to the deceased or someone -else. The fact is that Kamaljit Singh is named in the F.I.R. but since he has been acquitted, the conviction of the appellant cannot be sustained because of the acquittal of the main accused. They at best could be said to have wrongfully restrained the deceased without use of any force. Since the charge against the main accused has failed, we allow this appeal and acquit the appellant by setting aside his conviction. We may, however, clarify that the judgment should not be construed to lay down any law that if a witness on whose testimony the conviction has been recorded subsequently resiles from his statement against another co -accused, the earlier order of conviction must also go, because this will depend upon the credibility of the witness. Since this larger question was not relevant for the decision of this case, therefore, we have avoided to answer this in either way. So for as Sanjay Chandel is concerned, he already dead and therefore he could not appeal against the judgment. We make the order accordingly. Cr. Acq. Appeal No. 39/1988