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2017 DIGILAW 653 (JK)

State through Law Department v. Nazar Alam

2017-08-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. This Criminal Acquittal Appeal has been filed on behalf of the appellant against the judgment dated 29.01.2004 passed by the Trial Court by which the respondents have been acquitted of the offences under Sections 436, 120-B, 302, 364, 148, 149, 427, 34 of the RPC. It is pertinent to mention here that during the pendency of the appeal, the respondent No.10 has expired. 2. The prosecution story briefly stated is that one Rakesh Kumar and Rama Devi are residents of Village Banola were kidnapped in the night intervening 5th/6th of October, 1997 and thereafter were killed allegedly by the militants. The incident of killing and kidnapping led to communal violence in the area. Some of the persons who have participated in the agitation become violent and set the house of one Bashir Ahmed on fire. It is also the case of the prosecution that one Ajeem Mir was kidnapped from his house on 8.10.1997 by the persons who were carrying on the agitation and was later on killed. The women who had witnessed the occurrence narrated the same to the villagers. Consequently the first information report was registered in Police Station Bhaderwah. One Bashir Ahmed Khanday, ASI PP Thathri, who was entrusted with the examination recorded the statement of the witnesses under Section 161 CrPC namely Misra Begum and others came to the conclusion that the investigation cannot proceed further for want of evidence. Thereafter the case was reopened by one Om Prakash Kesri, Sub Inspector, who recorded the statement of Mohd Iqbal, Zonra Begum and Misra Begum. After the transfer of the aforesaid Om Prakash Kesri, the SHO Bhaderwah carried on the investigation and the charge sheet was filed against the respondents for the offences as aforesaid. 3. The prosecution in order to prove its case examined as many as 11 witnesses. However, the respondents did not examine any witness in support of their case. The case of the prosecution is based on ocular evidence as well as circumstantial evidence. 4. We have perused the record and heard the learned counsel for the respondents. Unfortunately, we did not have the assistance on behalf of the appellant as the counsel for the appellant has not chosen to appear before us. We have carefully scanned the evidence. The case of the prosecution is based on ocular evidence as well as circumstantial evidence. 4. We have perused the record and heard the learned counsel for the respondents. Unfortunately, we did not have the assistance on behalf of the appellant as the counsel for the appellant has not chosen to appear before us. We have carefully scanned the evidence. In the instant case, PW- Syeda, Misra and Zareena who have been re-examined after the span of more than year have in their earlier statements recorded under Section 161 CrPC denied to have witnessed the respondents assaulting the deceased. It is also pertinent to mention here that the then investigating officer ASI Bashir Ahmed Khanday had accepted their testimony and has closed the case. However, all the aforesaid witnesses were re-examined after one year of the occurrence and they have named the respondents. It is also relevant to mention here that the aforesaid witnesses are related to deceased as widow, daughter in law and daughter in law of brother respectively. It is also pertinent to mention here that there is no whisper in their statements explaining the delay in naming the respondents. Therefore, their credibility as witnesses is doubtful. It is also pertinent to mention here that the entire case of the prosecution is based on the statements of the witnesses who have changed their version in entirety. Even the investigating police officer who recorded their later statements had shielded away from the Court for reasons best known to him. One Rashid Ahmed i.e. brother of the deceased has been examined. From perusal of his evidence, it is evident that he is not an eye witnesses to the incident. From his cross examination, nothing inculpable has been brought on record. Similarly, PW-Farooq who is son of the deceased has clearly stated in the cross examination that if he had received the amount of ex gratia relief and the service benefits earlier, he would not made any application before the SP or DIG for proceeding ahead with the investigation. Similarly, PW- Abdul Rashid and PW-Mohd Iqbal are not the eye witnesses to the aforesaid incident. So far as the testimony of PW-Abdul Rehman, same is inconsequential as he is the only witness to the seizure of burnt articles. 5. There is no direct evidence available on record that the assailants had set ablaze the house of Bashir Ahmed. Similarly, PW- Abdul Rashid and PW-Mohd Iqbal are not the eye witnesses to the aforesaid incident. So far as the testimony of PW-Abdul Rehman, same is inconsequential as he is the only witness to the seizure of burnt articles. 5. There is no direct evidence available on record that the assailants had set ablaze the house of Bashir Ahmed. The statement of investigating officer Om Prakash Kesri has relevance only to the extent he had recorded statement of witnesses under Section 161 CrPC. It is also pertinent to mention here the investigating officer Om Prakash Kesri has stated that from the evidence collected by him during the course of the investigation, no charge sheet could be filed against the respondents. 6. In view of the preceding analysis, it is evident that the prosecution has failed to bring home the guilt to the respondents by leading cogent evidence. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the Trial Court is also a reasonable view of the evidence on record and the findings recorded by the Trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124 . 7. From perusal of the judgment of the Trial Court, we find that the findings recorded by the trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.