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2017 DIGILAW 638 (JK)

State through SHO P/S Doda v. Shabir Ahmed

2017-08-14

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. Condl(CR) No.225/2014: After hearing learned AAG for the appellant and for the reasons assigned in the application, we find sufficient cause for condoning the delay in filing the application for leave to appeal is made out. Accordingly, the application is disposed of. SLAA No.244/2014: Heard on the question of admission. After hearing learned AAG for the appellant, leave to appeal is granted. In the result, SLAA No.244/2014 is allowed. Cr.Acq.Appeal No.232/2014: Heard on the question of admission. This criminal acquittal appeal has been filed against the judgment dated 19.03.2014 by which the respondents have been acquitted of the offences under Sections 307/34 RPC. 2. The prosecution story in nutshell is that on 12.04.2007, complainant Shabir Ahmed S/O Ghulam Mohd Naik lodged a verbal report in Police Station Doda that eight months back he had received compensation for the work done under the Watershed Scheme through the concerned Block Secretary on account of which the accused were harboring ill-will against him and on 12.04.2007 at around 2 P.M. when the complainant had gone out to graze his cattle, the accused armed with lathis and iron Taber launched a murderous assault on the complainant with an intention to kill him and hit him on his head and also assaulted him with lathis as a result of which the complainant received grievous injuries. Thereupon, the first information report was lodged for offences under Sections 307/34 of the RPC and the police after completion of the investigation filed the charge sheet against the respondents. The Trial Court by impugned judgment has acquitted the respondents for commission of the alleged offences. 3. Learned AAG submitted that the Trial Court has misread the statement of the complainant Shabir Ahmed. It is further submitted that from the prosecution evidence, the motive was established and from the medical report, it was evident that injuries were caused on the person of the complainant which could not have been caused by a mere fall as was the case set up by the defense. 4. We have considered the submissions made by the learned AAG and have perused the record. The prosecution in order to prove its case has examined as many as ten witnesses. The wife of the complainant has been examined as PW-2, Mst. Mumtaza Begum. 4. We have considered the submissions made by the learned AAG and have perused the record. The prosecution in order to prove its case has examined as many as ten witnesses. The wife of the complainant has been examined as PW-2, Mst. Mumtaza Begum. From the evidence, it is evident that she is not an eye-witness to the incident and her husband had informed her that the respondents had assaulted him. However, it is pertinent to note that in her statement under Section 161 CrPC, the aforesaid witness has stated that she had seen the respondent assaulting her husband. PW-Irshad Ahmed, namely, the brother of the complainant is also not an eye witness to the incident in as much in his cross examination he has stated that he was not present at the time of commission of alleged offence. However, in his statement, he stated that he had seen the respondents assaulting the complainant. Prosecution witness, Niaz Ahmed has been declared as hostile by the prosecution and nothing incriminating can be gathered from his cross examination. Even otherwise, from his statement before the Court, it is evident that he is not an eye witness to the incident. Similarly, Ishtiaq Ahmed, another eye witness has stated in his statement before the Court that he does not know who had inflicted injuries on the head of the complainant and the police had not recorded his statement. Similarly, PW-Kafayatullah in his cross examination has stated that he is not an eye witness to the incident. It is pertinent to note that it is the case of the prosecution that the aforesaid witnesses was eye witnesses to the incident. 5. Now we may consider the evidence of complainant, namely, Shabir Ahmed in his statement under Section 161 CrPC, the complainant had stated that he was hit on the head with an iron Taber whereas rest of the accused persons had assaulted him. He stated that he was hit by iron rod on his head by accused Shabir Ahmed whereas rest of the accused persons had assaulted him with dandas. However, in his deposition before the Court, the complainant has stated that Shabir Ahmed was wielding a danda on his hand and caused injuries to him. Thus, there is an inconsistency in the statement of the complainant recorded under Section 161 Cr.PC and his statement recorded before the Court. However, in his deposition before the Court, the complainant has stated that Shabir Ahmed was wielding a danda on his hand and caused injuries to him. Thus, there is an inconsistency in the statement of the complainant recorded under Section 161 Cr.PC and his statement recorded before the Court. It is also pertinent to note that in his cross examination, complainant has admitted the he was hurt with danda and not with Taber. He has also admitted that the eye witnesses named by the prosecution had not seen the incident. It is further submitted by him that the quarrel took place because of the land dispute between him and the respondents whereas in the FIR he had stated that the dispute between him and the respondents took place as he has received money for work under the Watershed Scheme. PW-Dr. Mahajbeen on examination had found injuries on the person of the complainant. From his statement, the manner in which the injuries have been allegedly inflicted and the person who caused the injuries is not discernible. Thus, the prosecution has failed to provide the offence against the respondents beyond reasonable doubt. The Trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondents. The findings recorded by the Trial Court can by no stretch of imagination be said to be either perverse or based on no evidence. Even otherwise, it is well settled in law that even on re-appreciation of evidence, another view is possible, this Court in an acquittal appeal would taken a view which favours the respondents. 6. For the aforementioned reasons, we do not find any merit in the appeal. The same fails and is hereby dismissed.