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2009 DIGILAW 175 (JK)

Mohd. Qasim v. State

2009-04-17

Virender Singh, Y.P.Nargotra

body2009
Virender Singh, J. 1. Appellants Mohd. Qasim and Naseem Bano (hereinafter referred to as accused) along with one Mohd. Farooq (since acquitted) were charged for the offences punishable under sections 302/34, 364, 323, 342 & 120-B RPC for allegedly causing death of one Munir Hussain, husband of Mst. Naseeb Bano. Her extra-marital relations with Mohd. Qasim have been projected as motive for this offence. 2. Vide impugned judgment dated 16/17-04-2008 of learned Principal Sessions Judge, Rajouri, accused Mohd. Qasim has been convicted under sections 302/34 and 364 RPC whereas Naseeb Bano under sections 302/34. Mohd. Qasim is sentenced to imprisonment for life under section 302 RPC along with a fine of Rs.30,000/-, in default thereof to further undergo rigorous imprisonment for one year and under section 364 RPC, sentenced to imprisonment for life and to pay a fine of Rs.20,000/-, in default thereof to undergo rigorous imprisonment for six months. Both the sentences, however, are ordered to run concurrently. Accused Naseeb Bano is sentenced to imprisonment for life for the commission of offence under sections 364/34 RPC with a fine of Rs.30,000/-, in default thereof to further undergo rigorous imprisonment for one year. 3. It needs to be recorded here that the State has not preferred any appeal against the acquittal earned by Mohd. Farooq, the third accused. 4. The present case was registered in Police Station, Budhal by PW-1 Mian S/o Shammus Din Gujjar R/o Phalni, Tehsil Koteranka, District Rajouri, brother-in-law of the deceased (sister’s husband), by presenting a written complaint alleging therein that accused Mohd. Qasim, who was an employee in Jammu and Kashmir Armed Police, was carrying on extra-marital relations with Mst. Naseeb Bano, wife of his brother-in-law (Munir Hussain), which was known to every one in the village and despite being asked to desist, he did not. It is then alleged that on the night intervening 15 & 16 August, 2003, he along with other people in connivance with Mst. Naseeb Bano, entered the house of the deceased with an intention to finish him and forcibly took him away about one and half kilometer from his house and then killed him by slitting his, throat. On his written complaint, a case was initially registered under sections 364/302 RPC in Police Station, Budhal at 8.15 a.m. on 16-08-2003, special report of which reached the Illaqa Magistrate (1st Class Judicial Magistrate) on 18-08-2003. 5. On his written complaint, a case was initially registered under sections 364/302 RPC in Police Station, Budhal at 8.15 a.m. on 16-08-2003, special report of which reached the Illaqa Magistrate (1st Class Judicial Magistrate) on 18-08-2003. 5. Inspector Nazir Hussain Choudhary (PW-6), started the investigation of the case, went to the spot, prepared the rough site plan of the place of recovery of dead body and took the dead body in custody. From the dead body, one paper (pamphlet) bearing print Lashkar-E-Tayyeba in handwriting of some one was recovered. Besides this, he also seized three number of hairs attached to the nail of the dead body. He also seized blood stained clay and simple clay from the place of occurrence. 6. Accused Mohd. Qasim and Mohd. Farooq were subsequently arrested on 17-08-2003. Mohd. Qasim suffered disclosure statement, pursuant to which a `Chhuri’ (knife) was recovered from the house of the deceased and on disclosure suffered by Mohd. Farooq, one `Dussa’ (big sized gent’s Shawl) and a `duppatta’ were recovered from some other place. Besides this, one blood stained shoe belonging to Mohd. Qasim and worn by Mohd. Farooq was also recovered from Mohd. Farooq. Separate recovery memos were prepared in this regard. Specimen hairs of heads of accused Mohd. Qasim and Mohd. Farooq were then taken in presence of Executive Magistrate. Specimen writing of accused Mohd. Qasim was also taken in the presence of Tehsildar/Executive Magistrate. All this was sent to FSL for examination. 7. After completion of investigation, the challan was submitted in the Court against all the three accused, who were consequently charged of the different offences as stated hereinabove. 8. The prosecution in support of its case has examined as many as 26 witnesses. It did not produce certain witnesses despite affording sufficient opportunities. 9. The case of the appellants/accused was of total denial and pleaded their innocence in this crime. However, they have not produced any witness in defence. 10. The learned trial Court has ultimately convicted Mohd. Qasim and Naseeb Bano for offences punishable under sections 302/364/34 RPC in the aforesaid terms and acquitted Mohd. Farooq of all the charges. Hence Criminal Appeal No.05/2008 by both the accused and Confirmation No.05/2008 sent by the learned trial Court in terms of section 374 Cr. PC, which also stands admitted. 11. We have heard Mr. K.L. Pandita, Advocate, learned counsel appearing for both the accused, Mrs. Farooq of all the charges. Hence Criminal Appeal No.05/2008 by both the accused and Confirmation No.05/2008 sent by the learned trial Court in terms of section 374 Cr. PC, which also stands admitted. 11. We have heard Mr. K.L. Pandita, Advocate, learned counsel appearing for both the accused, Mrs. Shaista Hakim, learned Deputy Advocate General representing the State, and perused the trial Court record minutely. 12. Mr. Pandita submits that the case of the prosecution is on a very slippery footing, as it has not been able to prove any of the charges against both the accused. According to him, it is, in fact, stumbling on the basic charge of section 364 RPC and, therefore, the other charge of section 302 RPC, which is co-related with the first one only, would fall automatically, as with regard to causing of death of Munir Hussain, there is no direct or indirect evidence against any of the accused. 13. Dwelling upon his arguments with regard to the basic charge of section 364 RPC, Mr. Pandita submits that the prosecution in order to prove this charge is banking upon the statement of PW Abdul Rashid, the brother of the deceased and Mohd. Arif, aged 9 years, the son of the deceased. Abdul Rashid in his substantive statement states that on the fateful day, he was sleeping with his brother Munir Hussain (since deceased) and after he was dragged out of the house by Mohd. Qasim and Mohd. Farooq, he immediately informed his father and another real brother arid thereafter all three had gone to PW Mian. These two witnesses have not been produced by the prosecution. Mr. Pandita then submits that even otherwise whatever is stated by Abdul Rashid does not appear, to be correct. Had he gone to Mian and disclosed as to what has happened in his presence, PW Mian could not skip this important fact in his written complaint lodged with the Police. The names of Abdul Rashid and Mohd. Arif are conspicuously missing in the First Information Report lodged at the instance of PW Mian and this creates doubt about the presence of Abdul Rashid and Mohd. Arif at the time of alleged occurrence. 14. Mr. The names of Abdul Rashid and Mohd. Arif are conspicuously missing in the First Information Report lodged at the instance of PW Mian and this creates doubt about the presence of Abdul Rashid and Mohd. Arif at the time of alleged occurrence. 14. Mr. Pandita then submits that the occurrence is of night intervening 15/16 August, 2003 and the case was registered with Police on 16th August, 2003 at 8.15 a.m., whereas the special report reached the Illaqa Magistrate on 18-08-2003. The explanation tendered is that there were holidays on 15th and 16th, which cannot be taken to the advantage of the prosecution as after 16 also the prosecution still had two days to dispatch the report. So delay in reaching the special report to the lllaqa Magistrate also creates doubt about the truthfulness of the occurrence and it appears that a blind murder has been converted into an eye version account by introducing Abdul Rashid and Mohd. Arif as the eye witnesses to the alleged occurrence. According to the learned counsel, if presence of Abdul Rashid is doubtful in the house of the deceased, the evidence of Mohd. Arif, the son of the deceased, would lose its effect, as he was a child of tender age, who could be easily tutored in the manner the prosecution liked and this is what is done in this very case. 15. According, to learned counsel, another fact, which creates doubt about the presence of PW Abdul Rashid and PW Mohd Arif is that they have been projected as the injured witnesses who had allegedly received injuries by a `lathi’ at the hands of Mohd. Farooq, but no MLR of any one of them has been placed on record. Therefore, this fact also creates a lot of doubt about the presence of these two witnesses at the relevant time. According to learned counsel, the direct evidence, thus, does not support the case of the prosecution. 16. Mr. Pandita then submits that in order to prove the motive, the prosecution is replying upon bald statements of PW Abdul Rashid and Mian only. Abdul Rashid has stated in the Court that earlier to the present occurrence accused Mst. Naseeb Bano, who wanted to get rid of the deceased, had consumed poisonous tablets, but no documentary evidence has been produced on record in this regard. 17. Mr. Abdul Rashid has stated in the Court that earlier to the present occurrence accused Mst. Naseeb Bano, who wanted to get rid of the deceased, had consumed poisonous tablets, but no documentary evidence has been produced on record in this regard. 17. Mr. Pandita then submits that the prosecution in its attempt to prove its case through other planks of evidence has also failed miserably. The report of the FSL, although not formally proved by the prosecution would be of no help to the prosecution, as the examiner of the Forensic Science Laboratory could not compare the hairs taken from the heads of Mohd. Qasim and Mohd. Farooq, as the quantity was less. Similarly, the report of the handwriting expert is also of no advantage to the prosecution. 18. Mr. Pandita lastly submits that the Investigating Officer of this case has himself stated during trial that during investigation, he came to the conclusion that the case of the prosecution against the accused was false and they were found to be innocent. This fact by itself is sufficient to say that they have no nexus with the commission of the alleged offence. 19. Mrs. Shaista Hakim while refuting the submissions advanced by Mr. Pandita, submits that the aforesaid two main witnesses of the prosecution appear to be most natural witnesses to the occurrence. Abdul Rashid being brother of the deceased and staying very close to the house of Munir Hussain, was asked by the deceased to stay with him and there is nothing unnatural in it. The other witness is the son of the deceased, whose presence was again most natural in the house at that time and, therefore, there appears to be no reason to dub them as liars simply on account of certain minor weaknesses in their statements. Accused Naseeb Bano, the wife of the deceased, who was present in the house, has played a very active role in the commission of the offence by facilitating her co-accused with whom she was carrying on. According to her, the present set of circumstances reflect hatching of conspiracy of all the accused in eliminating Munir Hussain and, therefore, their case squarely falls within the mischief of sections 364 and 302 RP.C. Simply that Mohd. According to her, the present set of circumstances reflect hatching of conspiracy of all the accused in eliminating Munir Hussain and, therefore, their case squarely falls within the mischief of sections 364 and 302 RP.C. Simply that Mohd. Farooq has been given the benefit of doubt by the learned trial Court on account of certain flaws in the case of the prosecution qua him and there being no appeal filed against his acquittal by the State, that by itself would not be a ground to extent benefit to the present two accused at least, who have actively participated in the commission of the crime and one of them is none else but the wife of the deceased who has turned out to be most immoral. Supporting the impugned judgment of conviction and sentence, Mrs. Hakim, thus, prays for upholding the same. 20. After hearing learned counsel for both the sides, perusing the entire evidence and other relevant documents on record minutely, we are of the view that prosecution has not been able to prove its case against either of the two accused beyond the shadow of reasonable doubt. We have come to this conclusion for the following reasons: 21. No doubt, acquittal of Mohd. Farooq will not be a ground to give clean chit to the present two accused, if the prosecution case is otherwise proved against them to the hilt. But in our view, the very foundation as set up by the prosecution is sandy, which makes the entire case doubtful, PW Mian has been projected as first informant of the occurrence and his information to the Police is by way of a written complaint. He is brother-in-law of the deceased (sister’s husband). Admittedly, he is not an eye witness to the occurrence. His written complaint simply reveals that that accused Mohd. Qasim was carrying on illicit relations with accused Naseeb Bano, which was known to the entire village. He did not stop his activity despite protest and, therefore, on the night intervening 15/16 of August, 2003, he along with Mohd. Farooq entered the house of the deceased, took him outside the house at a distance of one and a half kilometer and killed him by slitting his throat. Before moving the written complaint, he was aware of the fact as to where the dead body was lying, as is evident from the complaint itself. Farooq entered the house of the deceased, took him outside the house at a distance of one and a half kilometer and killed him by slitting his throat. Before moving the written complaint, he was aware of the fact as to where the dead body was lying, as is evident from the complaint itself. He does not say a word about the presence of Abdul. Rashid and Mohd. Arif in the house of the deceased. So it can be inferred that during the investigation only, it revealed that, in fact, PW Abdul Rashid, the brother of the deceased, and Mohd. Arif, the son of the deceased, were present in the house when Mohd. Qasim and Mohd. Farooq had entered. These two witnesses projected themselves as eye witnesses to the occurrence. The case unfolded by the prosecution before the trial Court is also the same. Abdul Rashid states that on the date of occurrence, he was sleeping with his brother, Munir Hussain and after he was taken away from his house by Mohd. Qasini and Mohd. Farooq, he immediately informed his father and another real brother and then all the three had gone to PW Mian, who lodged the complaint with the Police. Had this all happened in the manner as being projected by the prosecution from the mouth of Abdul Rashid, the real brother of the deceased, this important fact, PW Mian could not miss in his written complaint. It is humanly impossible. Rather PW Abdul Rashid would have also disclosed the name, of Mohd. Arif, the son of the deceased, being an eye witness to the occurrence. Absence of name of Abdul Rashid or as a matter of fact, Mohd Arif in the written complaint goes to show that when the complaint was lodged, nobody knew about the manner of occurrence including the identity of the accused. It was based on speculations. Story appears to have been coined up subsequently when the police arrived at the scene and deliberations started and in order to convert blind murder into an eye version account, the prosecution had imported these two witnesses and projected them as eye witnesses to the occurrence being closely related to the deceased. This vital flaw in the prosecution case is staring at the very case set up by the prosecution and goes deep, to the roots so as to knock it down. This vital flaw in the prosecution case is staring at the very case set up by the prosecution and goes deep, to the roots so as to knock it down. We are appreciating the case on hand from this angle for arriving at the just conclusion. 22. Another aspect, which is worth consideration, is that Abdul Rashid talks of another two witnesses who were informed by him about the occurrence and those are his father Mohd. Din and real brother Nasir Hussain. These two persons had also accompanied him to PW Mian. All the four then sat in the house of the deceased before lodging the complaint as is stated by PW Mian in his substantive statement. Prosecution has not produced them. Therefore, disclosure of the occurrence by Abdul Rashid immediately to these two witnesses is not getting any corroboration. We could ignore this aspect had there been no basic flaw in the case of prosecution, as stated above. 23. If one appreciates the prosecution case in the light of the serious weakness crept in the written complaint lodged by Mian where names of aforesaid two eye witnesses do not occur, their substantive evidence does not call for further discussion. But for our satisfaction, we have examined their substantive statements. Abdul Rashid states that not only he but Mohd. Arif, the son of the deceased, was also assaulted by the accused and after beating Mohd. Arif, they had thrown him inside and thereafter left the place by bolting the gate from outside. Interestingly, these two witnesses were not got medico-legally examined by the Police. There is no MLR on the file with regard to their Injuries. He was also confronted from his previous statement with regard to this aspect. He wants the Court to believe him as a reliable witness to the occurrence, projecting himself as a stamped witness, but has failed in his attempt. 24. Evidence of PW Abdul Rashid otherwise does not inspire confidence. It suffers from many weaknesses. He states that his other two brothers, namely, Bashir and Nasir also reside with him. Their house is adjacent to the house of the deceased and on the date of occurrence, ho and Nasir were sleeping outside the house in a Bada (outer courtyard) for the purpose of taking care of their livestock (in ernacular, it is stated that "Bhedo Ki Hifazat Ke Liya Soe Hue The"). Their house is adjacent to the house of the deceased and on the date of occurrence, ho and Nasir were sleeping outside the house in a Bada (outer courtyard) for the purpose of taking care of their livestock (in ernacular, it is stated that "Bhedo Ki Hifazat Ke Liya Soe Hue The"). In his cross-examination, he has categorically stated that on the fateful day, he and his brother were sleeping outside house. His case is that Munir Hussain had gone out of the village and when he came late in the night, he asked him to accompany to his house and consequently he did the same. So it can be inferred that his brother Nasir remained sleeping outside in the Bada. Had the occurrence taken place in the way it is now projected, it is not possible that Nasir, the real brother of Abdul Rashid, could not come to know of this fact. After all, two persons had come from outside and entered the house of real brother of Nasir. In this, eventuality, he would have also become an eye witness to the occurrence, which, is certainly not the case of the prosecution. Appreciating the evidence of Abdul Rashid from this angle, there remains no doubt to say that story as coined by him that the deceased had gone out of the village and came late and then requested him to accompany him to his house appears to be concocted version. Had this been done in a natural conduct, there would have been nothing wrong in it, as a brother could go to the house of his real brother at any time but when statement of Abdul Rashid is seen in the light of other flaw’s in particular, the aforesaid vital flaw that his name does not figure in the written complaint, his conduct when tested on the touchstone of human probability appears to be unnatural. Therefore, his statement, in our considered view, deserves to be seen with a pinch of salt. 25. Matter does not rest here. PW Mian, the person who had presented a written complaint for lodging of the formal FIR, states that in the morning of 16th at about 5.00 a.m., when he was sleeping in his house, Nasir Hussain and Mohd. Din had come to him and told him about the occurrence. He does not talk about Abdul Rashid at all. PW Mian, the person who had presented a written complaint for lodging of the formal FIR, states that in the morning of 16th at about 5.00 a.m., when he was sleeping in his house, Nasir Hussain and Mohd. Din had come to him and told him about the occurrence. He does not talk about Abdul Rashid at all. Perusal of the statement of Mian indicates as if Nasir Hussain and Mohd. Din were the eye witnesses to the occurrence and they had disclosed each and every aspect even in the minutest detail to PW Mian. This is not the case of the prosecution at all. Admittedly, these two witnesses have not produced by the prosecution. Contrary to it is the statement of Abdul Rashid that he after the occurrence had disclosed the entire episode to his brother Nasir Hussain and father Mohd. Din, who accompanied him to the house of Mian. This weakness in the prosecution case, in our considered view, makes the evidence of Abdul Rashid the so-called eye witness to the occurrence, more shaky so as to give any credence. 26. Another aspect which this Court cannot loose sight of is that the occurrence relates to the night, intervening 15/16 of August, 2003, whereas the statement of Abdul Rashid and as a matter of fact, even statement of Mohd. Arif, the son of the deceased, is recorded on 20th of August, 2003, as is clear from record. As per the statement of Abdul Rashid, Police, has reached the spot on the next day in the morning. This delay of four days speaks volumes of the fact that the prosecution story in the shape, of eye version account was manufactured subsequently with due deliberations. This flaw also dents the prosecution case to a great extent. 27. As we are seeing the evidence of Abdul Rashid with an eye of suspicion on the basis of the aforesaid flaws, the evidence of Mohd. Arif, the son of the deceased, also loses its strength. He was a child of very tender age (nine years), on the date of occurrence. So possibility of tutoring him cannot be ruled out. No doubt, it is well settled that if the child witness is competent to depose the fact and is found reliable, the conviction can be passed on his statement alone. He was a child of very tender age (nine years), on the date of occurrence. So possibility of tutoring him cannot be ruled out. No doubt, it is well settled that if the child witness is competent to depose the fact and is found reliable, the conviction can be passed on his statement alone. But the evidence of a child witness and its credibility depends upon the facts of each case. In the case on hand, Mrs. Hakim, learned Deputy Advocate General has made an attempt to persuade us submitting that he being son of the deceased was present in the house at the time of alleged occurrence and since his presence cannot be doubted, he should be believed and that there was apparently no reason for him to falsely implicate her mother if she had no hand in the present occurrence. Apparently, the arguments advanced by Mrs. Hakim, if not tested on the touchstone of appreciation, appear to be attractive, but in our considered view, she, in fact, is asking for a moral conviction rather than legal conviction and it is well settled that moral conviction has no room in criminal jurisprudence. 28. We have, however, adopted the test of care and caution in appreciating the evidence of Mohd. Arif as is the legal requirement and are of the view that it does not inspire confidence at all. Besides delay in recording his statement under section 161 Cr. PC, which we have already said to be fatal to the prosecution, his evidence is contrary to the statement of Abdul Rashid, the other eye witness to the occurrence on many material aspects, the fall out would be that he renders himself unreliable. His evidence is altogether discrepant with regard to the main occurrence and we find ourselves in difficult position to accept the same. Even otherwise, his statement is not to be read in isolation in the present set of circumstances. It is not a case of a particular type in which one sole eye witness from the family of the deceased is coming forward with a specific case which in all probabilities appeals to the Court. At the cost of repetition, we may observe here that his name is also not figuring in the written complaint lodged for bringing the prosecution agency in motion. The other infirmities in the prosecution case can also not to be ignored by us. At the cost of repetition, we may observe here that his name is also not figuring in the written complaint lodged for bringing the prosecution agency in motion. The other infirmities in the prosecution case can also not to be ignored by us. So, we reject the evidence of PW Mohd. Arif also. 29. Although after disbelieving the prosecution case by rejecting the evidence of the aforesaid two eye witnesses to the occurrence, there is no need of entering into any other discussion vis-a-vis the investigation conducted in this case, but we cannot refrain ourselves from commenting that it is a case of slip shod investigation for which even the trial Court has also commented. The Investigating Officer in his wisdom thought of collecting certain planks of evidence so as to show nexus of the accused with the commission of the offence. But he has miserably failed in it oil account of the laxity shown by him only. The prosecution cannot ask for conviction even on the basis of indirect evidence (circumstantial evidence) for the reason that on that count also, the investigation conducted in this case is stumbling badly. From the dead body, one paper (pamphlet) bearing print Lashker-E-Tayyeba in handwriting of some one was recovered. Besides this, the Investigating Officer has also seized hairs (three in number) attached to the nails of the dead body. Specimen hairs of heads of accused Mohd. Qasim and Mohd. Farooq (since acquitted) were taken in presence of the Executive Magistrate. Those were sent to the Forensic Science Laboratory. As they were found to be less in quantity, the same could not be, compared. Specimen writing of Mohd. Qasim was taken in the presence of Tehsildar/Executive Magistrate. It is not taken with regard to Mohd. Farooq. The report of the writing expert does not put the prosecution in any advantageous position. It is otherwise not formally proved by the prosecution. A knife is shown to have been recovered from the house of the deceased pursuant to the disclosure statement of accused Mohd Qasim. This knife is used by him in killing the deceased, as is the case of prosecution. We do not appreciate this part of investigation. The net result is that all these pieces of evidence, may be indirect in nature, collected during investigation, are of no use to the prosecution. Mr. This knife is used by him in killing the deceased, as is the case of prosecution. We do not appreciate this part of investigation. The net result is that all these pieces of evidence, may be indirect in nature, collected during investigation, are of no use to the prosecution. Mr. Pandita made an attempt to dent the prosecution case submitting that even the Investigating Officer in his statement during the trial has stated that during investigation, he came to the conclusion that the case of the prosecution against the accused was false. We do not give any advantage to Mr. Pandita on this aspect, Otherwise the prosecution case is failing miserably on all vital aspects. 30. As a sequel to the aforesaid discussion, the net result is that the prosecution has not been able to prove the charges against any of the two accused beyond the shadow of reasonable doubts and as such by extending benefit of doubt, we acquit both of them. Resultantly, Cr. Appeal No. 15/2008 is allowed qua both the appellants. 31. Confirmation No.5/2008 also stands disposed of accordingly. 32. In case the appellants are in custody, they shall be released forthwith, if not required in any other case. Registrar Judicial to take effective steps in this regard.