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2014 DIGILAW 129 (UTT)

FAEEM @ FIROZ v. STATE OF UTTARAKHAND

2014-03-27

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. Since both the above titled appeals have been preferred against the same judgment and order dated 3.4.2013, therefore, these are being adjudicated together by this common judgment. 2. Appellants Faeem @ Firoz and Ghaffar are under incarceration eversince the date of their arrest on 30.5.2012. They faced the trial in the Court of Additional Sessions Judge, Kotdwar for the offences of Section 376, 511, 325/34 and 506 IPC. These charges were levelled by the learned Sessions Judge, Pauri Garhwal on 4.9.2012. Witnesses were called. PW1 Ms. Samina, the prosecutrix and the main/star witness and her mother PW2 Niyajan were examined on 14.3.2013. PW3 Dr. Sangeeta Negi and PW4 Sub Inspector Narendra Singh were examined on 16.3.2013. PW5 Investigation Officer Mohd. Yunus was examined on 18.3.2013, while PW6 Dr. JC Dhyani and PW7 KC Sharma were examined on 20.3.2013. 3. After examination of all the prosecution witnesses, an additional charge was levelled for the offence of Section 326/34 IPC against both the appellants and the learned Trial Judge was pleased enough to find the appellants guilty for the so amended charge under Section 326/34 IPC. It is very appalling that how the learned Additional Sessions Judge could satisfy herself to find the appellant guilty for the offence of Section 326/34 IPC, wherefor they were charged on 3.4.2013 while all the prosecution witnesses have been examined prior to the levelling of the said charge. It is obvious that the appellants/accused did not have any occasion to know that they were being tried for the offence of Section 326/34 IPC. So, their learned Counsel could not make the line of his cross-examination to the witness on that aspect. 4. As regards the offence of Section 325 IPC, both the accused persons have been acquitted by the Court below. However, this Court also does not find the sufficient evidence to punish them for such offence. The reason is that there is so glaring contradictions in the statement of PW1 Ms. Samina from that of the facts as have been averred in the FIR. The report was lodged by her mother Niyajan on the next day of the incident and it has been stated that a glass bottle was hit by the accused persons on her face to break six teeth of her daughter, while Ms. Samina from that of the facts as have been averred in the FIR. The report was lodged by her mother Niyajan on the next day of the incident and it has been stated that a glass bottle was hit by the accused persons on her face to break six teeth of her daughter, while Ms. Samina has nowhere deposed that to hit her teeth the glass bottle was used by the assailants. She talks about the blow of a stone which was used by the assailants to break her teeth. Moreover, she has stated that her eight teeth were broken. Further, it is difficult to believe that co-accused Faeem was accompanying the accused Ghaffar. She never knew Faeem ever before the incident and it has been deposed by her that she could know the name of Faeem only when Ghaffar was exhorting him by name to hit Ms. Samina. This does not inspire the credence reasonably. More so, when Faeem is resident of town Najeebabad, which is 30 kilometres away from Kotdwar where the incident allegedly took place. 5. Looking to the evidence of PW2 Smt. Niyajan, the prosecution story again becomes doubtful. She has stated that her daughter Ms. Samina regained her consciousness after 2-3 days of the incident. Only then she could know as to what happened with her. It is quite strange, if the incident could be known by the PW2 only after regaining the consciousness by Ms. Samina after 2-3 days of the incident, then the facts as have been stated in the FIR themselves become doubtful. Furthermore, she has stated that she (PW2) also lost her consciousness seeing the condition of her daughter and in that state, it is only the police personnel who recorded this FIR and she was made to put her thumb impression while she was still unconscious. Besides, the doctor has stated that Ms. Samina when brought in the hospital was though fully conscious but unable to speak, then how she could narrate the entire story to her mother has not been clarified anywhere by the prosecution. It shows that the averments in the FIR have been stated by her mother at her own and not at the verbose of Ms. Samina. 6. So, the above glaring incongruities in the entire prosecution story by no stretch of imagination are sufficient to hold the guilt of the appellants proved. 7. It shows that the averments in the FIR have been stated by her mother at her own and not at the verbose of Ms. Samina. 6. So, the above glaring incongruities in the entire prosecution story by no stretch of imagination are sufficient to hold the guilt of the appellants proved. 7. So, both these appeals are hereby allowed. Impugned judgment and order dated 3.4.2013 is hereby set aside. Both the appellants, namely Faeem @ Firoz and Ghaffar are in jail. They shall be set free forthwith if not wanted in any other case. 8. Let a copy of this judgment and order be sent to the trial court to ensure its compliance. Lower court record be sent back.