'Seven Years, Three Witnesses & Incomplete Testimony': J&K&L High Court Reopens Acquittal Case For Retrial

The Court held that although the injured victim had no statutory right to maintain an appeal against acquittal under Section 417(2) of the erstwhile J&K CrPC in a case instituted on a police charge-sheet, the extraordinary failure of the trial process warranted exercise of the High Court's inherent powers under Section 561-A CrPC.

A Division Bench comprising Justices Sanjeev Kumar & Yash Paul Bourney observed that the failure to secure the presence of the injured and other material witnesses had defeated the very purpose of the trial. It directed the trial Court to make every endeavour to conclude the proceedings expeditiously, preferably within six months.

Background

The proceedings arose from an alleged murderous assault on September 17, 2005. According to the complaint lodged by Swarn Singh at Police Station Janipur, his son Sohan Singh alias Sonu had purchased a piece of land at Chohana, Paloura, Jammu, and was going there to look after it when he was allegedly attacked by the accused with sharp-edged weapons and sticks.

The complainant alleged that the accused shared a common intention to murder his son, who was saved due to the timely intervention of passers-by and was taken to Government Medical College Hospital, Jammu.

FIR was registered for offences under Sections 307, 326, 147, 148, 149 and 34 of the Ranbir Penal Code and Sections 4/25 of the Arms Act. The investigation culminated in the filing of a charge-sheet on August 6, 2007. After committal, the case was assigned to the Court of the 1st Additional Sessions Judge, Jammu. The trial Court found a prima facie case and framed charges against the accused, who pleaded not guilty. The prosecution was accordingly called upon to produce its witnesses.

However, over the next seven-and-a-half years, despite numerous opportunities, the prosecution could examine only three witnesses: PW-2 Sohan Singh, one of the injured victims, whose examination remained incomplete; PW-7 Ranjeet Singh; and PW-15 Dr. Sanjay Bhat.

The examination of the injured witness remained incomplete after the defence sought deferment of his cross-examination until his brother, Dalbeer Singh, the other injured victim, was examined. The trial Court deferred the cross-examination, but the other injured witness was never produced and examined. The trial ultimately culminated in an order of acquittal dated July 26, 2016, passed by the 1st Additional Sessions Judge, Jammu.

Aggrieved by the acquittal, Dalbeer Singh, one of the injured victims, approached the High Court seeking special leave to appeal under Section 417(2) of the erstwhile J&K Code of Criminal Procedure.

Court's Observation

The High Court first examined whether an injured victim could maintain an appeal against acquittal under Section 417(2) of the erstwhile J&K CrPC in a case instituted on a police charge-sheet.

Relying upon the Supreme Court's judgment in Mahabir & Others v. State of Haryana, Criminal Appeal Nos. 5560-5561 of 2024, decided on January 29, 2025, the Bench noted that the right of appeal is a statutory remedy and can be exercised only by a person or entity to whom the statute confers such a right.

The Court explained that although a proviso was added to Section 372 of the Central CrPC through the 2009 amendment, expressly recognising a victim's right to appeal against acquittal, conviction for a lesser offence or inadequate compensation, no corresponding amendment had been made to Section 404 of the erstwhile J&K CrPC. It accordingly held that the petitioner could not maintain an appeal under Section 417(2), as the case had originated from a police charge-sheet and not a private complaint.

The Bench observed that “petitioner has no right to maintain the appeal under Section 417(2) of Code of Criminal Procedure, since it was not a case registered on a private complaint but on the charge-sheet filed by the police even though he happened to be one of the victims.”

However, the Court did not stop at the question of maintainability. Upon examining the trial Court record, it found the manner in which the proceedings had been conducted and concluded to be deeply disturbing.

Failure to examine injured witnesses over seven-and-a-half years

The Bench noted that the prosecution had been given numerous opportunities over a period of seven-and-a-half years but had examined only three witnesses. More significantly, the testimony of one of the injured victims had remained incomplete, while the other injured victim was never examined at all.

The Court held that the failure to secure the presence of the injured and other material witnesses had resulted in a complete failure of the process of law and had defeated the very purpose for which the trial was instituted.

It expressed grave concern over the fact that the victims themselves had not been properly examined during the prolonged trial and held the prosecution and investigating agency responsible for the failure.In a particularly strong observation, the Bench remarked,

“Learned APP has been seeking opportunities leisurely and the investigating agency also abdicated its responsibility once the charge sheet was filed and the trial Court has remained a mute spectator all along. So, each one has contributed in one way to the failure of process of law.”

The Court thus found that the failure could not be attributed to one participant alone. The conduct of the prosecution, the investigating agency and the trial Court had each contributed to the miscarriage of the trial process.

Having concluded that the statutory appeal was not maintainable, the Bench considered whether the circumstances warranted exercise of the High Court's inherent jurisdiction under Section 561-A of the erstwhile J&K CrPC.

It held that the extraordinary circumstances disclosed by the trial record justified intervention to prevent the process of law from being defeated by the prolonged failure to examine material witnesses.

The Court observed that the case was a fit one for invoking its inherent jurisdiction to reopen the proceedings and remand the matter for conducting the trial in accordance with law. It emphasised that “the operation of law should not and cannot be allowed to subverted by anyone.”

Invoking its inherent jurisdiction under Section 561-A of the erstwhile J&K CrPC, the High Court directed that the case be reopened and remanded for conducting the trial in accordance with law. The trial Court was directed to make every endeavour to conclude the proceedings at the earliest, preferably within six months from receipt of a copy of the High Court's order.

The petition was accordingly disposed of.