UTTAM CHAND Vs. STATE OF J AND K

JUDGEMENT

(1.) This is a conviction appeal filed against the conviction and sentence passed by learned Session Judge, Kathua in case file No. 11/Sessions on 25-7-1980.

(2.) The facts in brief which have given rise to the present appeal are that the person of the accused had some altercation with the complainant party over some transaction of demand of money viz. Rs. 4.50, when one of the accused Uttam Chand came behind and inflicted a hockey blow on the head of the deceased who sustained injuries and this occurrence is alleged to have taken place on 2-4-1978. It is also alleged that after the deceased received injury, he never reported the matter to the police nor any report was made regarding this occurrence with the concerned police. Not only that he instead of going to the hospital to be got treated, by a regular doctor/Surgeon, the deceased in fact had gone to a quack in the village who bandaged him. On enquiry by the said doctor/quack, the deceased told him that he sustained injury by a fall. Subsequently the deceased was treated by Gulzar Singh, PW 7 on 16-4-1978. The matter was not reported to any policy agency by any person namely village Chowkidar, Lumberdar, or Sarpanch and even the witness who were witnessing the whole episode as per averments on the file have not reported the matter to the police. The deceased is alleged to have died on 19-4-1978 and was cremated. The report about all this seems to have been lodged on 9-5-1978 i.e. after 37 days. The only explanation furnished for delayed lodging of FIR is that the persons who were to report the matter to the police were under heavy threat from the accused party and there is no evidence on record to suggest that the accused persons are habitual offender or that they have made a gang which indulges in such crimes and are hurling and administering threats to their preys not to lodge reports of alleged excesses.

(3.) On the other hand, it has been brought on record that the deceased as well as the accused belong to a small tribe 'Bazigar' who are infact earning their livelihood by showing Magic tricks/shows in the villages. So there is nothing on record to suggest that the threat as alleged was extended by the accused to the complainant party or even to the persons who were seeing and witnessing the episode as same is alleged to have taken place on 2-4-1978, when the accused were returning from a local village fair and the general public was passing. It was at about 5.30 on the day at national High Way that the accused were called by Mulk Raj and asked to pay amount which was to be recovered from their elder brother Harnam Das. The report about the matter has been lodged after 37 days which casts a great doubt and the prosecution story cannot be relied and is tainted with motives and possibilities of after-thought and concoctions, cannot be ruled out, just to involve the accused who were demanding repayment of Rs. 4.50 from the complainant party.