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2017 DIGILAW 820 (JK)

State v. Mohd. Rafiq

2017-09-08

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Aradhe, J. 1. This criminal acquittal appeal has been filed against the judgment dated 14.07.2006 by which the respondent has been acquitted in respect of the offences under Sections 302/364/171/201 read with Section 34 of the RPC. 2. Prosecution story briefly stated is that the respondent along with other army persons after putting masks and concealing the uniform by wearing shawls went to the house of the deceased on 21.11.1998 at 8.30 p.m. They first kidnapped the father of the deceased and took him to the house of the father of the respondent. After leaving him there, they came back and went to the house of the deceased and dragged her on a gun point and during this scuffle, the deceased was able to run away and was shot by Sub-Ajit Singh with his carbine. On receipt of the information, police registered an FIR for the aforesaid offences alleged against the respondent and commenced the investigation. After completion of the investigation, police has filed the charge-sheet against the respondent for the offences aforesaid. 3. Prosecution in order to prove its case though cited 48 witnesses yet it examined only 35 witnesses. The entire prosecution case is based on the testimony of three star eye witnesses namely Nazir Hussain, Khalil Ahmed and Adbul Gani. The Trial Court on the basis of the evidence on record has acquitted the respondent of the offences alleged against him. 4. Mr. Kotwal, learned Dy. A.G., submitted that the Trial Court ought to have relied upon the testimonies of three witnesses namely Nazir Hussain, Khalil Ahmed and Adbul Gani and has failed to appreciate the evidence on record in its correct perspective which has resulted in erroneous findings and consequent judgment. 5. We have considered the submissions made by learned counsel for the parties and perused the record. The father of the deceased namely Mohd. Abdullah has been examined as prosecution witness who has changed his version in his testimony before the Court and has stated that when the assailants took him to the house of the respondent-Mohd. Rafiq, they made enquiries about the whereabouts of the respondent from his father who informed them that the respondent was in the Army Camp and when these assailants came out from the house of the respondent, he identified the respondent. According to him, the respondent was present with the assailants right from the beginning. Rafiq, they made enquiries about the whereabouts of the respondent from his father who informed them that the respondent was in the Army Camp and when these assailants came out from the house of the respondent, he identified the respondent. According to him, the respondent was present with the assailants right from the beginning. However, it is pertinent to note that in his statement under Section 161 of the Cr. P.C., neither there was any statement with regard to identification of the respondent nor he was able to tender any explanation for this important omission. For the first time, the father of the deceased has made a disclosure about the identity of the respondent before the Court, therefore, his testimony does not inspire confidence. Statement of PW-Hanifa Bi and PW-Naseem Akhtar, the mother and sister of the deceased, were recorded after 3½ months after the date of incident. No explanation has been offered by the prosecution for delay in recording of the statements of the aforesaid witnesses under Section 161 of the Cr.P.C. PW-Naseem Akhtar has told the police that when her deceased sister was kidnapped on gun point, she saw the respondent who was wearing army uniform but was not possessed of any weapon. However, when PW-Naseem Akhtar appeared in the witness box, she deposed that about 8 p.m. on the date of incident, she saw the respondent wearing army uniform come to the house of her father and after knocking the door, they asked her father to come out, whereupon her father opened the door. According to her, there were 07 more persons who were wearing uniform as well as masks. Thereafter, she has deposed that after some time, the door of the house was knocked and persons knocking the door told the witness that her father has been brought back, she was asked to open the door. Thereupon, she opened the door. She has further deposed that three persons wearing uniform and possessed of guns along with a person of short height who was without gun entered into the house and forcibly took away the deceased. It is also stated by her that prior to the date of incident, the respondent had placed proposal of marriage with the deceased which was turned down. The respondent thereafter had threatened the deceased to take revenge. It is also stated by her that prior to the date of incident, the respondent had placed proposal of marriage with the deceased which was turned down. The respondent thereafter had threatened the deceased to take revenge. However, the aforesaid facts have not been recorded in the statement under Section 161 of Cr.P.C. The aforesaid witness in the examination-in-chief has stated that after the deceased was kidnapped, they went to the house of PW-Ibrahim-Numberdar and narrated him the incident. However, when confronted with the statement under Section 161 of Cr.P.C., she was unable to explain that why this fact has not been written in the statement under Section 161 of Cr.P.C. 6. PW-Naseem Akhtar has given a different version with regard to the date of incident. In her statement recorded by the police, she had stated that she was not able to identify the respondent but later on, she identified him alongwith six other persons who had come to kidnap her father. In her statement before the Court, she has stated that since the proposal of the marriage with the deceased was turned down, the respondent came to her house on the date of incident and threatened her father to kill if he does not come out. Thus, the version of this witness is contrary to the version made by her before the police authorities. It is also pertinent to mention here that in her statement under Section 161 of Cr.P.C., she did not state that she had identified the respondent and in fact, had she identified the respondent, she would have disclosed this fact to the police authorities. For the aforementioned reasons, the evidence of Pw-Naseem Akhter also does not inspire confidence. 7. PW-Hanifa Bi has deposed that the respondent was present along with few army persons who had knocked their door and after opening the door, her husband was kidnapped. Though in the Court, the aforesaid witness has admitted that she had identified the respondent, however, her conduct in remaining silent for about 3½ months about the identity of the respondent in her evidence cannot be safely relied on or made a basis for bringing home the guilt to the respondent. Had the aforesaid witness seen the respondent, it was quite unnatural on her part to maintain stoic silence for a period of 3½ months. Had the aforesaid witness seen the respondent, it was quite unnatural on her part to maintain stoic silence for a period of 3½ months. The entire prosecution case is based on the testimonies of the aforesaid three star eye witnesses. However, the aforesaid star eye witnesses have not supported the prosecution case before the Court. There is no evidence on record to show that the respondent was involved in the commission of crime. Besides that, the Doctor who conducted the postmortem report has not been examined to prove the fact that the deceased died on account of the bullet injury. The Trial Court has carefully scanned the evidence on record. 8. 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. 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.