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2011 DIGILAW 198 (JK)

State of J & K v. Jamat Ali & Ors.

2011-04-26

J.P.SINGH

body2011
The respondents' acquittal, ordered by the Additional Sessions Judge, Jammu vide his Judgment dated 25.08.2010, has been questioned in this Acquittal Appeal No. 42/2011 seeking condonation of 72 days' delay in filing the Appeal. Heard appellant's learned counsel on Condonation No. D-28/2011 as also on the merits of the Appeal. 2. The learned Additional Sessions Judge has recorded the acquittal of the respondents finding that the prosecution had failed to lead any such evidence which may connect the accused with the commission of offences punishable under Sections 304-II/109 RPC. 3. The prosecution had produced Ali Mohd., Noor Mohd. & Riaz Ahmed, the sons, and Hameeda Bibi, the daughter, of the deceased, besides Kareed-Ud-Din, Razak Mohd., Mohd. Saleem, Bashir Ali, Farman Ali, to support its case against the respondents that they had inflicted such injuries with fists, blows, kicks and stones on Barkat Ali in the night intervening 8th/9th June, 1998 with full knowledge that the injuries so caused would result in his death, which rested on the circumstantial evidence as also on the eye witness account of occurrence of the witnesses. In addition to these witnesses, it had produced Sardar Khan-Patwari, Rasal Singh-Executive Magistrate, Dr. S.C.Gupta, who had conducted the Post Mortem examination of the deceased, besides other formal witnesses namely Bodh Raj, Mohd. Iqbal-ASI, Mohd. Rashid-Head Constable and Maqsood Hussain, the Station House Officer of Police Station, Nagrota. 4. The witnesses produced by the prosecution did not, however, implicate the accused for the murder of Barkat Ali in their depositions. The sons and daughters of the deceased too have not supported the prosecution case. 5. There is not even an iota of evidence against the respondents. The statements of some of the witnesses suspecting the accused to have been responsible for the murder of the deceased, cannot be treated as acceptable evidence to convict the respondents, in that, suspicion howsoever strong it may be, cannot take the place of proof. The view taken by the trial Court that the prosecution had failed to produce any incriminating evidence in the case to connect the accused with the commission of the offence is well founded. 6. In view of the quality of the evidence produced by the prosecution during the trial, the learned State Counsel was unable to refer to any such evidence on the basis whereof the judgment of the trial Court can be faulted. 7. 6. In view of the quality of the evidence produced by the prosecution during the trial, the learned State Counsel was unable to refer to any such evidence on the basis whereof the judgment of the trial Court can be faulted. 7. Thus, considering the nature of the evidence produced by the prosecution against the respondents, no case is found to have been made out by the State warranting condonation of delay in filing the Appeal, additionally because no reasonable ground has been raised by the appellant to project the circumstances that had disabled the State to file the Appeal within the prescribed period of limitation. 8. The application filed by the State seeking condonation of delay does not spell out requisite facts on the basis whereof it may be said that the State was diligent in doing all that was required to facilitate the filing of Appeal within the prescribed period of limitation. 9. Perusal of the State's application indicates it to have been drafted in a routine fashion incorporating such abstract facts therein which had nothing to do with the filing of Appeal. Following statement in Paragraph No. 2, which is reproduced hereunder, supports the above factual statement. The paragraph reads thus:- “That the appellant on the receipt of the copy of the judgment from the trial Court immediately called for the record of the case and the matter was examined and processed at different levels for the implementation or otherwise of the judgment.” State's application further reveals that the sanction for filing the Acquittal Appeal was granted vide Government Order No. 2688-LD (Acq.) of 2001 dated 24.12.2010 and the Acquittal Appeal was filed more than 2½ months thereafter and that too without assigning any reason for not filing it after the State Government had sanctioned its filing. 10. The above facts, therefore, amply demonstrate that the filing of the Acquittal Appeal when there was absolutely no evidence worth the name against the accused and likewise the application for condonation of delay when there is no justifiable ground therefor, appears to be just a formality. 11. For all what has been said above, no case for condonation of delay in filing the Appeal has thus been made out by the appellant. 12. Condl. (Cr) No. D-28/2011 is, therefore, found without merit, hence dismissed along with Cr. Acquittal Appeal No.