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2017 DIGILAW 829 (JK)

State of J&K v. Muneer Hussain

2017-09-11

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. 1. With the consent of learned counsel for the parties, the appeal is heard finally. This Criminal Acquittal Appeal has been filed against the judgment dated 10.11.2012 passed by the trial Court, by which the trial Court has acquitted the respondents in respect of offences under sections 307/326/341/323 of the RPC. 2. The prosecution story briefly stated is that the complainant filed a written report on 24.08.2001 before the SHO, Police Station, Poonch, that the complainant and the respondents are the residents of same village and the respondents after restraining his brother Mohd. Azeem Sain Mohd. in a thoroughfare attacked his head with an Axe and caused two blows of Axe upon him with the intention to kill him. Thereafter complainant took his brother to Hospital for treatment. On the basis of the aforesaid written report, FIR for the offence under Sections 307/341 of the RPC was registered against the respondents and the investigation commenced. The police after completion of the investigation filed charge-sheet against the respondents. 3. The prosecution in order to prove its case examined prosecution witnesses, namely, PW-1, Mohd. Sadiq, PW-2 Mohd. Azeem, PW-3 Abdul Qayoom, PW-4 Abdul Rizaq, PW-5 Mohd. Rashied, PW-6 Abdul Khaliq, PW-7 Muzamal Hussain, PW-8 Sadhu Singh, PW-9 Abdul Ghani, PW-10 Dr. G. S. Bindra, PW-11 Dr. Nusrat Bhatti and PW-12 Bihari Lal. The trial Court, however, vide impugned judgment has acquitted the respondents of the offences alleged against them. 4. Learned Deputy Advocate General for the appellant submitted that the trial Court has given brief resume of the prosecution witnesses and ultimately in Paragraph No. 27 of the judgment has held that there are serious contradictions between the statements of prosecution witnesses on material aspects. It is further submitted that the evidence of the prosecution witnesses has not been analyzed by the trial Court and only the submissions have been recorded. It is further submitted that no independent witness has been examined by the prosecution and there is delay in recording the statements of the witnesses. Therefore, the 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 the judgment of the trial Court is cryptic. 5. Therefore, the 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 the judgment of the trial Court is cryptic. 5. On the other hand, learned counsel for the respondents submitted that the scope of appeal against the judgment of acquittal is well defined and if two views are possible, appellate Court should not substitute its view for that of the trial Court. In view of the aforesaid submission, learned counsel for the respondents placed reliance on 2016(2) Acquittal 232 (SC) and 2016(2) Acquittal 398(SC). It is further submitted that presence of the eye witnesses is also doubtful on the scene of occurrence. In support of her submissions, learned counsel for the respondents has placed reliance on Caetano Piedade Fernandes v. Union Territory of Goa, Daman and Diu Panaji, goa, 1977 AIR (SC) 135, Prem Dass v. Income Tax Officer, 1999 AIR (SC) 1079, State of Goa v. Sanjay Thakran & Anr., (2007) 3 SCC 755 , Ajmer Singh v. State of Punjab, 1953 AIR (SC) 76. 6. We have considered the submissions of the learned counsel for the parties and have perused the 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. However, in the instant case, we find that after giving the brief resume of the prosecution witnesses, the trial Court in Paragraph No.27 has recorded the following finding: “There are therefore serious contradictions between the statements of prosecution witnesses on material aspects and as such under these circumstances it is not safe to rely upon the statements of eye witnesses who are related and interested.” 8. However, from the close scrutiny of the judgment it is evident that the trial Court has nowhere discussed the serious contradictions between the statements of the prosecution witnesses on material aspects and has acquitted the respondents only on the basis that no independent witnesses were examined. The trial Court has failed to appreciate the evidence on record and has not analyzed the testimony of three eye witnesses. The judgment of the trial Court is cryptic and has been passed in cavalier manner. Therefore, the same is not sustainable in the eye of law. Therefore, the matter is remitted to the trial Court to pass fresh judgment after analyzing the record. Let the aforesaid exercise be done within four months from today. Accordingly, the criminal acquittal appeal is allowed.