BHAGWAN DASS & OTHERS Vs. STATE OF J&K

JUDGEMENT

(1.) Being aggrieved of impugned judgment of conviction/order of sentence dated 27.01.2012/28.01.2012 passed by the Court of Ist Additional Sessions Judge, Jammu, in FIR No. 35/2001 of Police Station R.S. Pura, for offences under Sections 302/34 RPC and 4/25 Arms Act, appellants-Bhagwan Dass alias Bhana S/o Bari Ram, Shiv Kumar alias Shibu and Raj Kumar alias Bittu both sons of Bhagwan Dass, all residents of Ward No. 9, R.S. Pura, Tehsil R.S. Pura, District Jammu ( for brevity 'accused'), have filed Cr. Appeal No. 18/2012. A criminal reference is also made by trial judge for confirmation of sentence of life imprisonment imposed by him under section 302 of RPC on accused persons.

(2.) Facts of the case, in brief, are that on 27.01.2001 complainant PW-1 namely Harnaik Singh S/o Chain Singh R/o Ward No. 9, R.S. Pura, lodged a verbal report in P/S R.S. Pura stating therein that his real brother namely Devinder Singh alias Bhola was running a tent house business in partnership with one Shiv Kumar and on 25.02.2011, they had installed a tent at village Chakroie More in the Sheller of one Harnam Dass where the marriage of a relative of Ram Dass was scheduled to take place. That at around 9.45 PM on that day when the Barat party was taking its dinner, the strong wind started blowing and because of the storm the power supply was disrupted. That Raj Kumar alias Bittu, Shiv Kumar alias Shibu both sons of Bhagwan Dass residents of Ward No. 9, R.S. Pura who were also present in the said marriage assaulted his brother Devinder Singh and caused injuries to him on forehead and attributed the cause of power failure to him; that a report was lodged with police of Police Station Ranbir Singh Pura for this occurrence. That on 27.02.2001, the complainant at around 7.30 pm had gone to the spare parts shop of one Raj Paul situated at Bus Stand and the brother (deceased ) of the complainant had already reached the bus stand area who had disclosed that on 28.02.2001 the marriage of the daughter of one Krishan Lal is scheduled to take place and his tent house has been booked for that marriage and that the complainant's brother was on his way to inspect the site where the tent was to be installed. That his brother had hardly gone a few steps ahead when Raj Kumar alias Bitu, Shiv Kumar alias Shibu and Bhagwan Dass alias Bhana appeared on the scene and threatened his brother as to why he has come there and started assaulting him. Bhagwan Dass loudly proclaimed that Devinder Singh should not be allowed to go back alive and thereafter, Bhagwan Dass and Shiv Kumar caught the deceased from his arms whereas Raj Kumar alias Bitu pulled out a Kirch and struck a blow with it on the chest of the brother of deceased who fell on the ground and bled profusely; that the accused after the commission of the crime fled away from the scene of occurrence. That on hearing the alarm some people had gathered on the scene of occurrence. That the injured brother was shifted to R.S. Pura hospital with the help of Mohinder Singh and some people who had gathered on spot from where the injured was referred to GMC, Jammu but the deceased succumbed to his injuries on reaching GMC, Jammu; that the accused have committed this crime with a deliberate intention and on the basis of the past rivalry. On the basis of this information, FIR No. 35/2001 under Section 302/34 RPC came to be registered against the accused persons and investigation was carried out. After completion of the investigation and on the basis of evidence collected by the investigating agency, a charge sheet has been filed against the accused persons in the committal court of Judicial Magistrate, Ist Class, R.S. Pura on 1.5.2011 from where it came to be committed to the court of learned Sessions Judge, Jammu from where it came to be assigned to the trial Court for disposal under law. Court below after framing of charges against the accused on 06.06.2002, commenced the trial and after completion of trial, convicted all the accused persons and sentenced them as mentioned above.

(3.) Learned counsel for accused persons argued in detail and stated that Court below has not properly appreciated the evidence on record; that statements of witnesses are full of contradictions embellishment and improvements; that medical evidence does not support that injury was sufficient in ordinary course to cause death, because measurement of wound and place at where it was inflicted, does not support that deceased died on account of injuries sustained by him; that all witnesses examined are interested and no independent witnesses have been examined; that place of occurrence has not been proved; that witnesses whose presence have been shown on spot is after thought; that motive in the case has not proved by cogent evidence. It has also been argued that the offence under section 4/25 A. Act was not entered into FIR, but challan has been produced by entering this offence also, so investigation in the case has not been fairly been conducted, therefore no conviction can be made out against appellants due to this reason also.