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2017 DIGILAW 814 (JK)

State v. Abdul Latif

2017-09-08

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. SLAA No.43/2014: After hearing learned counsel for the appellant, we deem it appropriate to grant leave to the appellant to file the appeal. Accordingly, SLAA is disposed of. CR. Acq. Appeal No.76/2013, MP No.17/2014: Heard. This criminal acquittal appeal has been filed against the judgment dated 22.12.2012 by which the respondents have been acquitted in respect of the offences under Sections 302/307/120-B RPC and 7/27 Arms Act. 2. The prosecution story briefly stated is that on 11.01.2006, in the Police Station, Mahore, an information was received that on 10.01.2006 at about 9.30 pm, some unidentified militants in furtherance of common criminal intention and criminal conspiracy, with a motive to wage war against sovereignty and integrity of India and to create terror forcibly entered into the house of Mohd Qasam S/o Mohd Abdullah and opened indiscriminate firing and killed daughter of Mohd Qasam who was aged about 12 years. It was also informed that Rafiqa Bano, daughter of Mohd Ayub was also seriously injured in the aforesaid incident. On the basis of the aforesaid information, the police registered the first information report and commenced the investigation. After completion of the investigation, the police filed the charge sheet against the respondents. 3. The prosecution in order to examine the guilt of the respondents examined as many as 28 witnesses out of which five witnesses were declared hostile. Out of the remaining 23 Prosecution witnesses, PW-Dr. Sudesh Raina is a medical expert, PW-R. S. Jamwal is the Scientific Officer of the Forensic Science Labaratory. PW-Janaid Ahmed is witness to the seizure memo and personal search of the accused, whereas PW-Lal Singh and Mohd Ishak are witnesses to the supardname of ring, PW-Abdul Rashid is a witness to the seizure of weapon of offence. PW-Farooq Ahmed is also witness of seizure, PW-Narinder Singh was SHO at the relevant time, who registered the FIR, PW-Satpaul Sharma was Moharar Malkhana, PW-Abdul Rashid is Naib Tehsildar and witness to the resealing of articles produced by the police and PW-Mangat Ram and Talab Hussain are investigating officers. Therefore, the entire prosecution story is based on testimony of remaining 14 witnesses. Out of the 14 witnesses, PWs Qamar Din, Nasir Ahmed, Rafiqa Bano, Rashid, Naseem Begum are not eye witnesses to the incident and their testimony is based on heresy, therefore, is not admissible in evidence. Therefore, the entire prosecution story is based on testimony of remaining 14 witnesses. Out of the 14 witnesses, PWs Qamar Din, Nasir Ahmed, Rafiqa Bano, Rashid, Naseem Begum are not eye witnesses to the incident and their testimony is based on heresy, therefore, is not admissible in evidence. The trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondents. 4. Learned Government Advocate submits that PWs Ghulam Fatima, Mohd Adbullah, Naseem Begum and Naseema Begum were eye witnesses to the incident and the trial Court grossly erred in not relying on the testimonies of the aforesaid eye witnesses. It is further submitted that the Trial Court has failed to appreciate the evidence on record in its corrective perspective which has resulted in erroneous findings and consequent judgment. On the other hand, learned counsel for the respondents has supported the judgment passed by the Trial Court. 5. We have considered the submissions made by learned counsel for the appellant and have perused the record. The incident had taken place on 10.01.2006 and the FIR was lodged on 11.01.2006. All the prosecution witnesses namely PW- Ghulam Fatima, Mohd Amin, Rafiqa Bano, Naseem Begum and Mumtaz have deposed that firing took place from outside the house in which the occurrence took place. However, PW-Mohd Abdullah, the complainant who made a written complaint to the police on 14.01.2006 deposed in the witness box that three accused entered into their house through a window of kitchen and they opened firing in the kitchen inside their house. The prosecution story is that some unidentified militants has opened indiscriminate firing in the house of complainant. It is not the prosecution story that any grenade was lobbed or hurled in the house of the complainant. None of the prosecution witnesses except PWs Mumtaz and Rafiqa Bano have mentioned in their statements regarding grenade in the present case. PWs Rafiqa Bano and Mumtaz have made improvements and exaggerations in their statements. It is pertinent to mention that all eye witnesses in the present case are close relatives of the complainant and therefore their testimony is to be read more carefully. PWs Rafiqa Bano and Mumtaz have made improvements and exaggerations in their statements. It is pertinent to mention that all eye witnesses in the present case are close relatives of the complainant and therefore their testimony is to be read more carefully. PW-Mohd Shafi amd Mumtaz in their depositions in the Court have stated that Mohd Sultan and Ghulam Haider came to their house after the occurrence, however, rest of the prosecution witnesses have categorically stated that none of the neighbours came to the place of occurrence. This is a serious contradiction in the prosecution evidence. 6. The investigating agency has failed to cite any independent witness which rendered the prosecution case unreliable and doubtful. PW- Mohd Abdullah has stated that Hazra, Naseem, Fatima and Shah Begum were sleeping in the kitchen, however, PW-Ghulam Fatima, an eye witness stated that when she reached near the door, accused Latif opened fire. Similarly, PW-Naseem Begum stated that she was providing meals to her children when bullet came in from the window. This is a glaring contradiction in the prosecution evidence which creates doubt about the presence of these witnesses on the scene of occurrence. 7. It is also pertinent to mention that the incident took place on 10.01.2006 whereas the statement of PW-Qamar Din was recorded on 04.02.2006 and the statements of PWs-Naseer Ahmed, Mohd Amin, Mohd Shafi, Naseem Begum, Talab Hussain, Mumtaz Begum and Rafiqa were recorded respectively on 04.02.2006, 18.02.2006, 05.05.2006 and 19.02.2006, i.e. after one month from the date of occurrence. The statement of Naseema Begum was recorded on 05.03.2006 and that of Satpaul was recorded on 12.03.2006 which shows that the statement of the aforesaid witnesses were recorded after two months after the occurrence. There is inordinate delay in recording the statement of the aforesaid witnesses and no plausible explanation has been offered for not recording the statement of the aforesaid witnesses promptly. From the statement of PW-R S Jamwal, Scientific Officer, it is pertinent to note that no fire bullet was received by him, therefore he failed to give an opinion whether the bullets were fired from the gun seized in the case. From the statement of PW-R S Jamwal, Scientific Officer, it is pertinent to note that no fire bullet was received by him, therefore he failed to give an opinion whether the bullets were fired from the gun seized in the case. Therefore, there is failure on the part of the prosecution to establish the recovery of weapons of offence in accordance with law and categoric statement of the Scientific Officer that he failed to give an opinion whether bullets were fired from the gun seized in the case goes to the root of entire prosecution case and is fatal to the prosecution story. 8. It is also noteworthy that PW-Mohd Abdullah who was complainant in the case and was the father of the deceased and was with her in the night of occurrence, admitted that he made a false complaint in the present case to rope in accused persons on the basis of some old animosity. The statement of DW-Mohd Ayub that complainant Mohd Abdullah later disclosed him that he named accused persons under duress and due to threat of militants is also noteworthy on the conspectus of the whole prosecution case. Complainant Mohd Abdullah at the fag end of the trial has made an application before the Trial Court for his reexamination in terms of Section 540 CrPC on the grounds that he made false deposition before the Court under threat and coercion of militants to implicate the accused persons. Thus, it is evident that prosecution has failed to prove the offences against the respondents. 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 . 9. (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 . 9. 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.