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2009 DIGILAW 388 (JK)

State Of J. &K. v. Wazira Kounsar

2009-08-10

MOHAMMAD YAQOOB MIR

body2009
1. Respondent No.1 and 3 were put to trial for having committed the offences punishable under Sections 366-A, 376, 342 read with 109 RPC. Respondent No.3 and 4 were also put to trial for having committed the offences punishable under Section 366-A, 376, 342 RPC. Accused earned acquittal in view of scurry trial. The judgment rendered acquitting the accused is under challenge. After obtaining sanction in terms of Govt. Order No.3275-LD(ACQ) of 2005 dated 23.9.2005, appeal after delay of 15 days has been preferred. 2. The gravamen of the charge as framed against the accused-respondents is not only heinous but serious as well. Both its seriousness and its heinousness has become casualty, as a consequence thereof abortive trial culminated in acquittal of the accused. 3. Perusal of the proceedings of the trial court would show how the matter has been dealt with. Charge against all the accused stand framed on 16.10.2003 till 5.4.2005 out of listed 11 witnesses only four witnesses have been produced which include the star witness Tabassum Jan (Victim). Interim orders recorded by the trial court from 17.11.2003 to 5.4.2005 would indicate that in routine manner adjournments have been granted without any effective follow-up. Additional Public Prosecutor (APP) too has shown casual approach by not taking effective measures for producing the witnesses, neither has bothered to show any cause for non production of witnesses before the trial court and trial court also in routine has closed the prosecution evidence. Though it is recorded in the interim order dated 30.12.2004 that last opportunity is granted, same is repeated on 28.2.2005, as a consequence thereof on 5.4.2005 PW No.7 Dr. Shubli Hafiz has been produced and examined but on the same date prosecution evidence has been closed and case posted for examination of the accused in terms of Section 342 Cr.P.C. 4. Learned trial court in the judgment under appeal has opined that in light of the available prosecution evidence on record, the invocation of Section 342 Cr.P.C would be unnecessary. Then has noted that PWs 1 and 2, namely, Mohammad Aslam and Mohammad Yousuf Malla have shown ignorance about the occurrence and they did not know the accused persons whereas PW 7 Dr. Shubli Hafiz is a formal witness who has deposed that the age of the prosecutrix would either be 18 years or less by two years. Then has noted that PWs 1 and 2, namely, Mohammad Aslam and Mohammad Yousuf Malla have shown ignorance about the occurrence and they did not know the accused persons whereas PW 7 Dr. Shubli Hafiz is a formal witness who has deposed that the age of the prosecutrix would either be 18 years or less by two years. Then has also opined that the statement of PW 3 Tabassum Jan being a solitary witness against the accused persons lacks corroboration from any of the prosecution witnesses, thus said lone testimony is incredible and cannot be relied upon and has further opined that the prosecution has failed to produce remaining seven important PWs despite having been provided reasonable opportunities, finally has passed the judgment under appeal. 5. The approach of learned trial court in not appreciating the matter, within the confines of law and the procedure, is wholly improper. 6. The object of examining the accused in terms of Section 342 Cr.P.C is to enable the accused to tender explanation vis-a-vis the incriminating circumstances as appear against him in the evidence. In case from the evidence recorded no incriminating material/circumstance would exist, then definitely there would be no purpose of examining the accused under Section 342 Cr.P.C. It is to be borne in mind that at such a stage reliability of the evidence is not to be taken into consideration. The appreciation of evidence is required to be done at only one stage of pronouncing the judgment under Section 276 Cr.P.C but in contrast learned trial court has opined that the statement of PW 3 Tabassum Jan (prosecutrix) is solitary evidence against the accused which lacks corroboration, thus the said lone testimony is incredible and cannot be relied upon. It itself shows that there is an evidence against the accused. It was not a case of "no evidence". Credibility and the value of those incriminating circumstances would be subject to explanation required to be tendered by the accused, then on proper appreciation, credibility or otherwise could be looked into at the stage of final judgment. 7. For the purposes of examination in terms of Section 342 Cr.P.C statement of the prosecutrix coupled with statement of PW 7 Dr. Shubli Hafiz was to be looked into where sufficient incriminating circumstance do exist. 7. For the purposes of examination in terms of Section 342 Cr.P.C statement of the prosecutrix coupled with statement of PW 7 Dr. Shubli Hafiz was to be looked into where sufficient incriminating circumstance do exist. Learned trial court without giving any reason has simply said that the evidence of prosecution is unreliable though appreciation of evidence was impermissible at such a stage trial court should not have passed final judgment at this stage as it was not a case of "no evidence", therefore, trial court was bound to give reasons for not relying on the statement of prosecutrix. The position of statement of prosecutrix being star witness and being only witness to the actual occurrence could not at such a stage be termed as unworthy of credit. While doing so, learned trial court has scuttled the trial, as such, abortive trial ended in acquittal of the accused. 8. In her statement prosecutrix has given a viewed picture by stating that at the time of occurrence she was minor and was induced, then subsequently subject to sexual intercourse and has also stated how she was induced, where she was taken and how she was subjected to intercourse. These incriminating circumstances were required to be put to the accused. In addition doctor witness has proved the certificate EXP-M/7 wherein it has been opined that the age of the victim seems to be below 18 years and while deposing in the court has also qualified that it can be two years more or two years less. This was a circumstance which should have been put to the accused. The order of acquittal recorded by saying that it is a case of "no evidence" is a total abuse to the provision itself. 9. The judgment under appeal is unsustainable, so is set aside and case sent back to the learned trial court with the direction to fix a schedule for recording the statement of rest of the witnesses within a time frame of three months. The case shall be disposed of expeditiously, preferably within a period of six months. In case it is not disposed of within six month, special reasons shall be recorded for extending the time. 10. The accused shall ensure their presence before the trial court i.e. 3rd Additional Sessions Judge, Srinagar on 1.9.2009. The case shall be disposed of expeditiously, preferably within a period of six months. In case it is not disposed of within six month, special reasons shall be recorded for extending the time. 10. The accused shall ensure their presence before the trial court i.e. 3rd Additional Sessions Judge, Srinagar on 1.9.2009. In case of non appearance, learned trial court shall be at liberty to have recourse to the permissible measures for securing their presence and to conclude trial within the time frame as fixed. Copy of the judgment along with record be sent back.