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2017 DIGILAW 765 (JK)

State of J&K v. Manzoor Hussain

2017-08-30

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl (Cr) No.32/2015 Heard. After hearing learned counsel for the parties and for the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 119 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No. 34/2015 After hearing the learned counsel for the appellant, we deem it appropriate to grant leave to file Criminal Acquittal Appeal. Accordingly, leave is granted. SLAA is disposed of. Registry to diarized and number the Criminal Acquittal Appeal today itself. Cr. Acquittal Appeal No. 44/2017 This Criminal Acquittal Appeal has been preferred against the judgment dated 30.08.2014 passed by the trial court, by which the respondents have been acquitted of offence under sections 307/326/34 RPC. 2. The prosecution story in a nutshell is that on 20.12.2008, Head Constable Bashir Hussain was sent to record the statement one Shaneeda Parveen in Government Medical College, Jammu. In the aforesaid statement, he stated that said Shaneeda Parveen was married with Mushtaq Ahmad S/o Manzoor Hussain eight years back and out of that wedlock, four children were born. On account of previous enmity, on 08.12.2008 at about 6.00 p.m. in the evening when she was sitting in her house and the children were sleeping and her husband was not at home, the respondents entered in her house with a criminal intention to kill her. They started beating her with kicks and fists, due to which she fell down on the ground. Thereafter, the respondent Farooq Ahmad tied her arms, accused Nasreen Akhter wife of accused Farooq Ahmad poured the kerosene oil, whereas accused Farooq Ahmad lit the match stick and set her ablaze. Thereafter, she turned unconscious and gained conscious on 19.12.2008. On the basis of the aforesaid statement, offence under section 307/34 RPC was registered against the respondents. After completion of the investigation, charge sheet was presented in the Court against the respondents for the offences as aforesaid. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 3. Learned Government Advocate for the appellant submitted that from the statement of complainant, Shaneeda Parveen, it is evident that the respondents have committed the offence alleged against them. The trial court vide impugned judgment has acquitted the respondents of the aforesaid offences. 3. Learned Government Advocate for the appellant submitted that from the statement of complainant, Shaneeda Parveen, it is evident that the respondents have committed the offence alleged against them. It is further submitted that trial Court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment. It is further submitted that there is enough material on record to connect the respondents with the alleged offences. On the other hand, learned counsel for the respondents has supported the judgment passed by the trial Court. 4. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the careful scrutiny of the statement of PW 1-Shaneeda Parveen, it is evident that in her previous statement on the basis of which, First Information Report was lodged, she has deposed that accused Manzoor Hussain, Farooq, Nasreen Akhter wife of Farooq and Tariq Ahmad entered her house and beat her and then accused Farooq, Nasreen Akhter poured kerosene oil on her and Farooq lit the fire, due to which she sustained burn injuries. In her statement before the Court, she has stated that Farooq Ahmad put the kerosene oil and Nasreen Akhter lit the fire. Thus, there is contradiction in her earlier statement and the real statement. It is pertinent to mention here that elder daughter of the complainant, who is about 8/9 years old was cited as prosecution witness No. 2, however, she was given up by the prosecution in the case. In cross-examination, the complainant has submitted that a blow was given on her head but as per the medical evidence, there was no injury on the head. She has deposed in her statement that occurrence took place in the evening, whereas in cross-examination, she has deposed that occurrence took place at 10/11 p.m. Thus, there is a contradiction with regard to the timing of the incident also. 5. PW 4-Mohd Fareed and PW 7- Mushtaq Ahmad have been declared hostile by the prosecution and nothing incriminating from their cross-examination could be elicited against the respondents. PW-5 Maddassar Iqbal has stated that the complainant was quarrelling with her in-laws, when he reached on spot, she was burnt and was taken to hospital. 5. PW 4-Mohd Fareed and PW 7- Mushtaq Ahmad have been declared hostile by the prosecution and nothing incriminating from their cross-examination could be elicited against the respondents. PW-5 Maddassar Iqbal has stated that the complainant was quarrelling with her in-laws, when he reached on spot, she was burnt and was taken to hospital. In cross-examination, he has stated that he has no knowledge with regard to the incident in question. As per the opinion of the Doctor-PW 8, he has not stated anything to the extent of injuries on the head of the complainant. It has further been stated by him that burn injuries could be caused by herself. The FIR was lodged after 12 days from the date of occurrence. Even the statement of PW-1 and PW-7 were recorded 7 months after the occurrence. The statements of the aforesaid witnesses have been recorded after a long delay, for which no explanation has been offered by the Investigating Officer. 6. 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.