HIGH COURT OF JAMMU & KASHMIR AND LADAIGI AT JAMMU CRAA No. 95/2o12 Reseruedon: 23.04.2026 Pronounced on:3g. O 5. 2 02 6 Uploaded on: \o .05.2026 Wtetlerthe operatiue part orfull judgment b pronouned: State of J&K through Superintendent of Kathua .... Petitioner(s) Through Ms. Mehar Bali, Advocate vlce Mr. Ravinder Gupta, AAG Vs. Balwinder Kumar Alias Bittu S/o Karan Singh R/o Badala, Kathua ... ..Respondent(s) CORAM: Through:- Mr. Mayank Gupta, Advocate. HON'BLE MRS. JUSHCE SINDHU SITARMA, JITDGE HON',BLE MR. JIISTICE SI{AIrZ.N' AZE,E,M', JIIDGE JUDGMENT SHAIIZAD AZEEM.J 1 This acquittal appeal is directed against the judgment Senior Police, dated 07 August 2OL2 passed by the learned Additional Sessions Judge, Kathua ("the trial Court") in File No 76/Session titled State Vs. Balwinder Kumar alias Bittu, whereby the trial Court has acquitted the respondent- CRAA No. 95/2072 I accused, Balwinder Kumar of the offences punishable under Sections 3O2 / 341 RPC read with Section 4 125 of Arms Act. PROSECUTION CASE 2. The prosecution case, in brief, is that accused was sent up for trial on the accusation that, owing to a long-standing enmity, on 19 July 2OO2 at 6:30 PM, when Nasib Chand (deceased) was returning home after irrigating his fields and had reached near the house of Karan Singh S/o Vakilu Ram R/o Badala, the accused stabbed the deceased in the back with a Kirch (sharp-edged weapon). The occurrence stated to have taken place in a lane (Gali) of the village following a daytime quarrel. 3. The deceased had died enroute to the hospital. PW- 1 Gulshan Kumar is said to have lodged a report on 19 July 2OO2 at 7:50 PM. 4. During investigation, all the codal formalities were completed, including recovery of alleged weapon of offence pursuant to the disclosure made by the accused. 5. It is noteworthy that, or completion of investigation, the police presented the challan only against the accused, though investigation into tJ:e alleged occurrence had also CRAA No. 95/2072 been conducted against his two brothers, namely, Sohan Lal and Raj Kuma-r, respectively. FINDINGS OF THE TRIAL COURT 6. While recording the judgment of acquittal, the trial Court took into consideration the contradictions regarding who reached the spot first and where witnesses were at the time of occurrence. Although independent witnesses were available, only PW-8 Kiran Jyoti was cited as one; she too turned hostile. The injuries sustained by the accused were omitted from the statements recorded under Section 16 1 Cr.PC, according to the trial Court, this omission amounted to an improvement that cast doubt on the prosecution story. The recovery of weapon of offence was not proved. Learned triat Court further held that the medical and other evidence was insufficient. Accordingly, while granting benefit of doubt, the accused was acquitted. GROUNDS OF CHALLENGE AND SUBMISSI,oNs 7. The judgment of acquittal is challenged on the ground that the statements of material eye-witnesses, namely, PW-2 Kanta Devi, and PW-3 Chaya Devi, have been discarded by the trial Court without any justifiable reason. It is further contended that the prosecution proved that the occurrence CRAA No. 95/2072 ( took place following a daytime altercation, yet the trial Court discarded the testimonies of the prosecution witnesses, who happen to be the relatives of the deceased, contrary to settled principles of law. 8. It is also urged that non-examination of independent witnesses, did not render the prosecution case unbelievable, particularly when it is supported by medical evidence showing that the deceased was done to death by stabbing The petitioner, therefore, prays that the impugned judgment be set aside. 9. Ex Aduerso, learned counsel for the respondent has argued in line with the reasoning given by the trial Court in the judgment under challenge. The same shall be taken note of at the appropriate stage. ANALYSIS 10. The respondent earned the judgment of acquittal by deriving benefit of doubt. The trial Court reached this conclusion on the basis of: (i) contradictions appearing in the testimonies of the eye-witnesses; (ii) absence of independent witnesses; (iii) failed to explain the injuries sustained by the accused; (iv) non-recovery of weapon of CRAA No. 95/2072 Page 4 of L4 offence; and (") the medical and other evidence being insufficient to bring home the guilt against the accused. 11. On a perusal of the record, it is seen that the prosecution case is based on direct evidence supplied by the widow, daughters and sons of the deceased. 12. Prosecution has heavily relied upon; PW- 1 Gulshan Kumar, (accuser/son) , PW-2 Kanta Devi (Widow), PW-3 Chaya Devi (daughter), PW-4 Mamta Devi (daughter), PW-7 Rakesh Kumar (son) and PW-8 Kiran Jyoti (only independent witness). Out of these, PW-4 Mamta Devi was not examined, and PW-8 Kiran Jyoti, though the solitary independent witness, turned hostile. During her cross-examination, nothing incriminating against the accused could be elicited. DISCLOSURE AND RECOVERY 13. The accused was charged with murdering the deceased by stabbing him in the back with a Kirch. According to prosecution, the weapon of offence was recovered on the disclosure of the accused. To prove the recovery, the prosecution relied upon PW-6 Battu Ram and PW-9, Raj Kumar respectively, both brothers-in-law of the deceased L4. PW-6 Battu Ram was not examined by the prosecution. pw-9 Raj Kumar turned hostile, and during his cross- CRAII No. 95/2072 examination, nothing incriminating against the accused could be elicited. Consequently, neither the disclosure nor the recovery of the weapon of the offence was proved. 15. We are, therefore, left with the direct evidence supplied by sons, daughters and widow of the deceased. In order ascertain whether there is any inconsistency, contradiction, omission or improvement in their testimonies as held by the trial Court, we proceed to examine the matter PRESENCE OF WITNESSES 16. PW- 1 Gulshan Kumar, besides being an eye witness, was also the accuser. He deposed that he and his brother PW-7 Rakesh Kumar were cutting grass in their fields when they heard the cries uBachao, Bachao, Maardiya." They rushed to the spot and arrived after their mother and sisters. The witness deposed that he saw the accused stabbing tJ:e victim and then fleeing from the place of occurrence. L7. In contrast, PW -2 Kanta Devi deposed that at the time of occurrence she, along with her daughters only, rurshed to the spot. The deceased was evacuated on a cot with the help of her daughters and then shifted to Kathua Hospitat on a horse cart. This witness completely negated the presence of CRAA No. 95/2072 PW- 1 and PW-7 at the time of occurrence. PW-3 Chaya Devi deposed, inter-alia that her uncle PW-5 Dev Raj had also accompanied them to the place of occurrence. However, PW- 5 Dev R"j, despite being brother of the deceased was neither cited as an eye-witness nor did he depose that that he had accompanied the family members of the deceased at the time of the occurrence. Thus, the eye-witnesses have given mutually contradictory statements regarding their presence at the time of occurrence, and their credibility on this point is sufficiently eroded. NON.TXAMINATION OF WITNESSES 18. PW-3 Chaya Devi deposed that l5-2O villagers were present at the time of occurrence, whereas PW-7 Rakesh Kumar claimed that 40-50 persons were present on the spot. If testimonies of these witnesses are to be believed, villagers were present; however, the prosecution examined only one independent witness, PW-8 Kiran Jyoti who was declared hostile. 19. There is ample evidence on record to show that alleged occurrence took place in a bustling village lane flanked by a good number of houses. Nevertheless, the prosecution failed to examine independent witnesses, though they CRAA No. 95/2072 PageT of L4 were C t present. This omission casts serious doubt on the prosecution story and the manner in which the occurrence is alleged to have taken place. TESTIMOIITY OF HOSTILE WITNESS 2o.. Surprisingly, PW-8 Kiran Jyoti, though declared hostile and cross-examined by the prosecution, deposed during her cross-ex€unination by the defence counsel that after hearing the noise she remained there for a minute but did not see PW-7 Rakesh Kumar, PW- 1 Gulshan Kumar, PW-2 Kanta Devi, PW-3 Chaya Devi or PW-4 Mamta Devi or the accused-Balwinder Kumar. Despite completely negating the presence of these eye witnesses and the accused at the time of occurrence, she was not re-exarnined by the prosecution to clarify the presence of accused, the deceased or the eye witness. Therefore, in view of the law laid down by Honble Supreme Court in Talari Naresh Vs. The State of Telangana; 2026 SCC OnI;lne SC 852 the testimony of the hostile witness cannot be brushed aside. Paragraph 9 of the judgment assumes importance, which reads thus:- u g. Therefore, uhen the testlmong ol a hostlle wltness ls admlsslble subJect to be feeded W corroboratlon and the conulctlon on thqt bcsls could be arrhted at, the reuerse ls o,lso tnte o.s, a calnon of appreclatlon of euldence. What CRAA No. 95/2072 ) necessarllg tmlrltes ls that as the euldence ol a hostlle ultness co;n be used for conulctlng the accused, such euldence could lnd,eed be applted and utlllsed also for tle purpose of acqultttng the accused, when uhat is testtfied bg the hostlle ultness lnsplres credlbllttg, uhen read ulth the other ealdence on record, elther ocular or documentary. The dlcf,;.tm utould be tha,t the testlmong of a hostlle urltness or statetnent ln the deposltlon of hosttle urltness could be properlg emploged to dlscredlt the prosectttlon case and a concluslon of o;cqulttal could uell be supported through tt and could be founded thereln^" 2L. It has been held that if the evidence of a hostile witness can be used for convicting the accused, such evidence can indeed be applied and utilized also for the purpose of acquitting the accused, provided, the testimony inspires credibility, when read with the other evidence on record, whether ocular or documentar5r. 22. As already noted, the presence of eye-witnesses stands sufficiently corroded by their mutually contradictory statements given by none other than sons, daughters and widow of the deceased. When the testimony of the hostile witness is tested on the anvil of law, it lends credence to the findings returned by the trial Court regarding the absence of eye-witnesses at the time of the occurrence c CRAA No. 95/2072 J INJI'RIES SUSTAINED BY THE ACCUSED AND IMPROVEMENTS 23. The injuries sustained by the accused were also not explained which renders the prosecution story doubtful. PW- 1 Gulshan Kumar completely denied that the accused received any injury on the day of the occurrence. To the contra4r, PW-2 Kanta Devi, PW-3 Chaya Devi and PW-7 Rakesh Kumar admitted that the accused was injured and hospitalized but they c€une up with the theory that the accused stabbed himself on the neck with the same Kirch used on the deceased right after committing his murder However, this "self-stabbing" fact was never mentioned in the FIR or in any of their statements recorded under Section 161 Cr.PC. The omission of such a material fact constitutes a serious improvement that renders the testimonies of these witnesses untruthful. 24. PW-13 Dr. Varinder Kumar examined the accused on 19 JuIy 2OO2 at 7 PM. The trial Court called for File No 34/Sessions titled State Vs. Gulshan Kumar arising out of counter FIR regarding the s€une occurrence. As per the medical examination, the accused had suffered injuries on the neck below the chin, right side and an abrasion on the chest. The prosecution failed to account for these injuries CPAA No. 95/2072 I Such omission assumes great significance, particularly when evidence consists of interested or related witnesses. 25. In Nand La,l and Ors. Ys. The State of Chhatttsgarh; (2023) 70 SCC 47O it was held that in a murder case the non-explanation of injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw an inference that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. It was further held that witnesses who have denied the presence of injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable. This dictum assumes even greater importartce when the prosecution witnesses are interested parties or relatives of the deceased. Thus, this is another circumstance which discredits the prosecution case. ANTE- FIR 26. The occurrence is alleged to have taken place on 19 July 2OO2 at 6.30 PM and the FIR is stated to have been lodged at 7 .SOPM on the s€une day. PW- 1 Gulshan Kumar the accuser and son of the deceased, stated in his cross- examination that he and his brother had gone to the police CRAA No. 95/2072 station the next day at 7 AM to lodge the report. However, the FIR shows tJre reporting date as 19 July 2OO2 at 7:5O PM i.e. about O1 hour 20 minutes after the occurrence. This is another circumstance that casts serious doubt on the prosecution story and the manner in which it is sought to be projected. 27. Once, it is show:l, as per the version of informart, that the FIR is ante-dated and was not lodged at the time it was reported, the necessary inference is that the Investigating Officer deliberately failed to record the first information report on receipt of information of the cognizable offence and prepared it after due deliberation. This renders the investigation tainted, and it would be unsafe to rely upon such a tainted investigation. 28. This discrepancy raises serious doubt regarding the genuineness and spontaneity of the FIR. If it appears to be back-dated (ante-dated), Court views it as evidence of possible manipulation, either by the police to make the case appear prompt or by the informant to fill gaps after consultation. This further casts doubt viz-a-viz the credibility of the informant and the first information report that led to the investigation and the trial of the accused. Our view is fortified by the fact that two brothers of the CRAA No. 95/2O72 Page t2 of 74 accused, Sohan Lal and Raj Kumar did not face the trial as the challan was restricted only to the accused. FINDING AND CONCLUSION 29. We have noticed major contradictions among the eye- witnesses on the point of their location at the time of the alleged occurrence, (whether in the fields or in the house) and the sequence in which they reached the spot. Secondly; despite the presence of villagers at the time of the occurrence, no independent witness was examined; only one independent witness, PW-S Kiran Jyoti, was cited who turned hostile. Thirdly; the prosecution failed to explain the injuries sustained by the accused in the occurrence, which shows that the prosecution suppressed the genesis of the crime. Besides this, the prosecution miserable failed to prove the disclosure and recovery of the weapon of offence. The case is also marred by material omissions and improvements. 30. We, therefore, find no reason to interfere with the judgment of the trial Court nor do we Iind any illegality, either on facts or in law, committed by the trial Court while acquitting the accused by granting him the benefit of doubt. 31. Lastly, we also endorse the cardinal principle of criminal law reiterated time and again that if two reasonable CRAA No. 95/2072 rt views €rre possible on the evidence, one pointing to guilt and other to innocence, the Court must adopt the view that favours the accused. Even a small, material improbability in tJ:e prosecution's story can shatter its consistency and create a reasonable doubt. 32. Accordingly, while concurring with the judgment of the trial Court, the instant appeal is dismissed being devoid of merit. 33. Record be sent back to the trial Court with due dispatch Jammu: 30.05.2026 Tarun/PS (Shahza Azeeml (Sindhu Sharmal Judge J,*b- Y,*,XZ Judge Whether approued for reporting : CRAA No. 95/2072 Surinder Kumar 2026.05.30 13:57 I attest to the accuracy and integrity of this document