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2014 DIGILAW 221 (JK)

State Of J&K v. Ab. Qayoom

2014-05-29

JANAK RAJ KOTWAL, MOHAMMAD YAQOOB MIR

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1. Leave is sought for filing the appeal against judgment dated 04.10.2012 passed by the Court of Sessions Judge, Rajouri in terms whereof respondents have been acquitted. 2. For grant of permission as required in terms of Section 417 Cr. P.C., it has to be ascertained as to whether there is any scope of success of appeal. Grant of leave is not a formality. Similarly, accord of sanction for filing an appeal by the Government too is not a formality. The Government has accorded sanction but on scrutiny it is found to have been granted in routine, power has not been exercised in its sprit as is required. 3. Confronted with the merit of the case, Learned Dy. AG states that there is no scope for success of the appeal. 4. While considering the motion for leave to appeal, we have perused the record as well as judgment. We are not persuaded to grant such leave. 5. Prosecution case is that deceased Alam Bi allegedly was maltreating her daughter-in-law (respondent no. 3). On 19.10.2011 allegedly deceased assaulted her, she came out of her house and raised an alarm, which attracted her two brothers, respondent No. 1 and respondent No. 2. On her instigation, they assaulted the deceased with an axe as a result she died on spot due to injuries inflicted on her. The respondents 1 & 2 allegedly have thereafter thrown the dead body in a ditch, so as to portray that she had died due to fall. 6. The case totally rests on the circumstantial evidence. The circumstantial evidence must be such, which must form chain so as to connect the accused with the commission of offence, the chain must be without any break and must be complete so as to be consistent to establish that the act has been committed by none other than the accused. 7. Testimony of the prosecution witnesses as produced would reveal that there is no incriminating circumstances so as to connect the accused with the commission of the offence. 8. PW Abdul Rashid, son of the deceased, has stated that Manzoor Hussain informed him that his mother has died after fall from the house. He has been declared hostile. But on cross-examination by the PP, has further qualified that neither he nor any of his brother was present in the house on the day of occurrence. 8. PW Abdul Rashid, son of the deceased, has stated that Manzoor Hussain informed him that his mother has died after fall from the house. He has been declared hostile. But on cross-examination by the PP, has further qualified that neither he nor any of his brother was present in the house on the day of occurrence. Accused were saying that deceased had gone for offering prayer but died due to fall. 9. PW Mohd Hafeez, Village Guard (Chowkidar), has stated that he was called by the accused Abdul Qayoom on the spot, where he found the dead body of the deceased was lying on a cot. He has been declared hostile. On cross-examination, he has qualified that accused Abdul Qayoom has not made any disclosure statement to the police about recovery of axe. He does not know as to who had handed over the axe to the Police. 10. PW Naseem Ahmed, son of the deceased, has stated that accused Saleema is the wife of his brother Abdul Qayoom. Hassan Mohd is father of the accused No. 1 & 2. Accused has hatched a conspiracy with Hassan Mohd to kill the deceased. He further stated that he was informed by his brother in law on telephone at Rajouri about the death of his mother. Accused Saleema Begum informed the police that she in connivance with other accused and Hassan Mohd, have killed the deceased. He has further qualified that the accused were beaten by the police at Police Station and they confessed to the police that they have killed the deceased. Then has qualified that in his statement under section 161 Cr. P.C., that the accused made any statement to the police regarding killing of the deceased is not made mention of. 11. PW Alam Din, a neighbour of the deceased, has stated that there had been dispute between the parties regarding a piece of land. 12. PW Manzoor Hussain has stated that husband of accused Saleema had gone for cutting of grass with accused Abdul Qayoom. Accused Saleema Begam and the deceased were not having cordial relations. He was informed by the police that accused have killed the deceased. The deceased was having 3/4 injuries on her head. An axe was recovered by the police from the maize heap at the instance of the accused. Accused Saleema Begam and the deceased were not having cordial relations. He was informed by the police that accused have killed the deceased. The deceased was having 3/4 injuries on her head. An axe was recovered by the police from the maize heap at the instance of the accused. In cross examination, he has qualified that the axe has not been recovered and seized by the police in his presence. He was told by the SHO that the axe has been recovered from the accused and that they killed the deceased. 13. PW Mohd Kabir has stated that accused Saleema used to quarrel with the deceased (mother in law). In cross examination, he has stated that an altercation between the deceased and accused Saleema took place about one month prior to the occurrence. 14. PW Mehandhia has stated that deceased was not having cordial relations with Saleema. He has been declared hostile. In cross examination, he has qualified that the police obtained his signature on the recovery memo of an axe but that document has not been shown to him. 15. PW Mohd Shafi has stated that he reached to the house of deceased along with his neighbours and found the dead body lying on a cot. The people present there were saying that the deceased has died due to fall from the roof of the house. He too has been declared hostile. 16. PW Mohd Rafiq, another son of the deceased, has stated that Numberdar and Chowkidar of the village told the police that deceased has not died by a fall but she was injured with an axe. Accused were taken to the Police Station by the police where they disclosed before the police that they have killed the deceased. In cross-examination, he has qualified that he has been informed by the police after about 5 days about the disclosure statement having been made by the accused. He has further qualified that he has no personal knowledge about making of any disclosure statement by the accused to the police. 17. Another witness Noor Mohd has stated that he reached on spot after hearing noise and was told that deceased has died due to fall. 18. PW Mohd Hussan has stated that the deceased was the wife of his brother. He saw the dead body of the deceased lying on a cot, who had died due to fall. 17. Another witness Noor Mohd has stated that he reached on spot after hearing noise and was told that deceased has died due to fall. 18. PW Mohd Hussan has stated that the deceased was the wife of his brother. He saw the dead body of the deceased lying on a cot, who had died due to fall. In cross-examination, he has qualified that no recovery has been affected by the police in his presence. 19. PW Abdul Qayoom, son of the deceased, has stated that on the day of occurrence, he was not present in his house but had gone for cutting of grass. He was informed by son of Noor Mohd about the death of the deceased. Accused Saleema Begum told the police that deceased has been maltreating her, therefore, she called her brother, who killed her with an axe. In cross examination, he has qualified that Saleema has not made any statement to police in his presence. 20. PW Dr. Mohd Jahangir, who has conducted the post mortem, has found the following injuries. "1) Incised wound on right temporal region measuring 3x1/2 inches in diameter with regular margins. 2) Incised would at Right Parito-temporal region measuring 2x1/2x1/2 inches regular in margin. 3) Lacerated wound on left side of lower lip measuring 1/2x1/2x1/2 inches regular in margin. 4) Lacerated wound on left ear irregular in margin." 21. Then he recorded his opinion that the death is caused due to hemorrhagic shock caused by a fracture of skull, bones and brain damage due to incised wounds in the skull. In cross-examination, he has qualified that injuries noted on the person of the deceased are possible by a fall on sharp edged objects like stones. He also stated that length of the injuries detected on the dead body are far lesser than the blade of the alleged weapon. The alleged history of the death is recorded by the police due to a fall. 22. The testimony of the witnesses on precisely as noticed hereinabove are clear. None of the witnesses has connected the accused with the commission of offence. No one has seen the actual occurrence. Maltreatment by the deceased (mother in law) as against Saleema (daughter-in-law) in fact is a routine matter, no one has stated with certainty that maltreating was such which has forced the accused Saleema to take such extreme step. None of the witnesses has connected the accused with the commission of offence. No one has seen the actual occurrence. Maltreatment by the deceased (mother in law) as against Saleema (daughter-in-law) in fact is a routine matter, no one has stated with certainty that maltreating was such which has forced the accused Saleema to take such extreme step. There is no direct evidence or circumstantial evidence so as to justify that the accused No. 1 and 2 brother of accused No. 3 have attacked the deceased. No one has seen them at the place of occurrence. All that some of the witnesses have stated is that relationship between accused No. 3 and the deceased were not good. Some of the witnesses have said that people were saying that deceased has died due to fall. That position has become probable in view of the medical evidence as PW Dr. Jahangir has stated that injuries noted on the person of the deceased are possible by a fall on the sharp edged objects like stones. The said position is further supported by stating that the length of the injuries noticed on the dead body are far lesser than the blade of the alleged weapon of offence. Even otherwise, recovery of weapon is doubtful. 23. Another link is that accused had made disclosure statement. No such disclosure statement is available on record, nor has it been proved. All that has been stated by some of the witnesses is that accused had made disclosure statement before the police to the effect that they have killed the deceased but nobody has seen so. Even if taken correct, such type of disclosure made before the police is hit by Sections 25 & 26 of the Evidence Act. In totality of the circumstance, death of the deceased has remained mystery, which remained to be exposed. 24. In view of the aforesaid position, it is clear that there was no possibility of recording conviction against the accused. The learned trial court has rightly appreciated the evidence and concluded that the prosecution has failed to prove the case. Acquittal of the accused is un-interferable. It being so, the motion for leave is rejected. Resultantly, appeal is dismissed. 25. Record of the trial court be sent back along with a copy of this order.