J&K High Court Dismisses State’s Appeal Against Acquittal in Kathua Murder Case, Cites Ante-Dated FIR and Unexplained Injuries

A Division Bench at Jammu upheld the acquittal of Balwinder Kumar alias Bittu in a 2002 stabbing death, finding the FIR ante-dated, prosecution eye-witnesses mutually contradictory, and injuries on the accused left entirely unexplained.

The High Court of Jammu & Kashmir and Ladakh at Jammu has dismissed a State appeal challenging the acquittal of Balwinder Kumar alias Bittu, who was tried for the murder of Nasib Chand in Badala village, Kathua, on 19 July 2002. The Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem, with the judgment authored by Justice Shahzad Azeem, found no illegality in the order of the Additional Sessions Judge, Kathua, dated 7 August 2012, which had granted the accused the benefit of doubt. The bench identified four independent infirmities in the prosecution case — contradictory eye-witness accounts, failure to examine available independent witnesses, an ante-dated FIR, and the prosecution’s inability to explain injuries found on the accused — each of which, taken alone, would have been significant, and which together left no basis to interfere with the acquittal.

The Prosecution Case and the Trial Court’s Acquittal

The prosecution alleged that on 19 July 2002 at around 6:30 PM, Balwinder Kumar stabbed Nasib Chand with a Kirch (a sharp-edged weapon) in a village lane in Badala, Kathua. The deceased was returning home after irrigating his fields. He died on the way to hospital. An FIR was lodged the same evening at 7:50 PM by Gulshan Kumar, son of the deceased.

The accused was charged under Section 302 and Section 341 of the Ranbir Penal Code read with Section 125 of the Arms Act. Investigation was also conducted against two brothers of the accused, Sohan Lal and Raj Kumar, but the challan was filed only against Balwinder Kumar.

The Additional Sessions Judge acquitted the accused after finding contradictions among eye-witnesses about who reached the spot first and where they were at the time of the occurrence. The trial court also noted that the only independent witness, PW-8 Kiran Jyoti, turned hostile; that the recovery of the weapon of offence was not proved; and that the prosecution had failed to explain injuries sustained by the accused. Benefit of doubt was accordingly extended.

Contradictions Among Eye-Witnesses

The prosecution case rested almost entirely on the direct evidence of the deceased’s family: PW-1 Gulshan Kumar (son and accuser), PW-2 Kanta Devi (widow), PW-3 Chaya Devi (daughter), PW-7 Rakesh Kumar (son), and PW-8 Kiran Jyoti (the sole independent witness). PW-4 Mamta Devi was not examined at all.

PW-1 Gulshan Kumar deposed that he and his brother PW-7 Rakesh Kumar were cutting grass in the fields when they heard cries of “Bachao, Bachao, Maardiya” and rushed to the spot. PW-2 Kanta Devi, the widow, gave a directly contradictory account: she stated that at the time of the occurrence she was with her daughters only, and that the deceased was evacuated on a cot with their help and shifted to Kathua Hospital on a horse cart. Her account completely negated the presence of PW-1 and PW-7 at the scene.

PW-3 Chaya Devi added that her uncle PW-5 Dev Raj had accompanied the family to the place of occurrence. Yet PW-5 Dev Raj, the deceased’s own brother, was neither cited as an eye-witness nor did he depose that he had accompanied the family at the time of the occurrence. The bench found that the eye-witnesses had given mutually contradictory statements regarding their presence, sufficiently eroding their credibility on this central point.

Failure to Examine Independent Witnesses

PW-3 Chaya Devi deposed that 15 to 20 villagers were present at the time of the occurrence. PW-7 Rakesh Kumar put the figure at 40 to 50 persons. The bench noted that the alleged occurrence took place in a bustling village lane flanked by a number of houses. Despite this, the prosecution examined only one independent witness — PW-8 Kiran Jyoti — who was declared hostile.

During cross-examination by defence counsel, PW-8 Kiran Jyoti stated that after hearing noise she remained at the spot for a minute but did not see PW-7 Rakesh Kumar, PW-1 Gulshan Kumar, PW-2 Kanta Devi, PW-3 Chaya Devi, PW-4 Mamta Devi, or the accused Balwinder Kumar. The prosecution did not re-examine her to clarify the presence of the accused, the deceased, or the eye-witnesses.

The bench applied the principle laid down by the Supreme Court in Talari Naresh v. The State of Telangana, 2026 SCC OnLine SC 852, which holds that the testimony of a hostile witness is admissible and can be used not only to convict but equally to acquit, where what the hostile witness testifies inspires credibility when read with the other evidence on record. The bench held that PW-8’s testimony, which negated the presence of all the named eye-witnesses and the accused at the time of the occurrence, lent credence to the trial court’s findings on the absence of reliable eye-witness testimony.

Unexplained Injuries on the Accused

PW-13 Dr. Varinder Kumar examined the accused on 19 July 2002 at 7 PM and found injuries on the right side of the neck below the chin and an abrasion on the chest. The prosecution offered no explanation for these injuries.

PW-1 Gulshan Kumar flatly denied that the accused received any injury on the day of the occurrence. PW-2 Kanta Devi, PW-3 Chaya Devi, and PW-7 Rakesh Kumar admitted the accused was injured and hospitalised, but introduced a new theory: that the accused had stabbed himself on the neck with the same Kirch used on the deceased immediately after committing the murder. This “self-stabbing” theory appeared nowhere in the FIR or in any of their statements recorded under Section 161 Cr.PC. The bench treated this omission as a serious improvement that rendered the testimonies of these witnesses untruthful.

The bench relied on Nand Lal and Ors. v. The State of Chhattisgarh, (2023) 70 SCC 470, which holds that in a murder case the non-explanation of injuries sustained by the accused at about the time of the occurrence 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. The dictum carries even greater weight, the bench observed, when the prosecution witnesses are interested parties or relatives of the deceased.

The Ante-Dated FIR

The occurrence is alleged to have taken place on 19 July 2002 at 6:30 PM. The FIR records the reporting time as 7:50 PM on the same day — approximately one hour and twenty minutes after the occurrence. However, PW-1 Gulshan Kumar, the accuser and son of the deceased, stated in cross-examination that he and his brother had gone to the police station the next morning at 7 AM to lodge the report.

The bench found this discrepancy raised serious doubt about the genuineness and spontaneity of the FIR. If the FIR was ante-dated and not lodged at the time it was reported, the necessary inference, the bench held, is that the Investigating Officer deliberately failed to record the first information report on receipt of information and prepared it after due deliberation. This rendered the investigation tainted. The bench further noted that the two brothers of the accused, Sohan Lal and Raj Kumar, who were also investigated in connection with the same occurrence, did not face trial — the challan having been restricted to the accused alone — which fortified the court’s view about the manner in which the case was constructed.

Non-Proof of Disclosure and Recovery

The prosecution alleged that the weapon of offence, the Kirch, was recovered pursuant to a disclosure statement by the accused. To prove the recovery, the prosecution relied on PW-6 Battu Ram and PW-9 Raj Kumar, both brothers-in-law of the deceased. PW-6 Battu Ram was not examined by the prosecution at all. PW-9 Raj Kumar turned hostile, and nothing incriminating against the accused could be elicited from him in cross-examination. The bench found that neither the disclosure nor the recovery of the weapon of offence was proved.

Reasoning on Interference with Acquittal Appeals

The bench reiterated the cardinal principle that if two reasonable views are possible on the evidence — one pointing to guilt and the other to innocence — the court must adopt the view that favours the accused. It held that even a small, material improbability in the prosecution’s story can shatter its consistency and create a reasonable doubt. Applying this standard, the bench found no reason to interfere with the trial court’s judgment, and no illegality either on facts or in law in the order of acquittal.

Order

The Division Bench dismissed CRAA No. 95/2012 as devoid of merit, concurring with the judgment of the Additional Sessions Judge, Kathua, dated 7 August 2012. The record was directed to be sent back to the trial court with due dispatch. The order was pronounced on 30 May 2026.