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2017 DIGILAW 840 (JK)

State Th. SHO P/S Nowshera v. Mohd. Akbar

2017-09-13

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Heard. This Criminal Acquittal Appeal has been filed against the judgment dated 31.12.2014 passed by the trial Court, by which the respondents have been acquitted of offence under sections 302/34 RPC. 2. The prosecution story briefly stated is that on 17.10.2010, Mohd. Ishaq, complainant moved an application before SHO P/S Darhal, in which it was stated that six months ago the death of Mohd. Tariq took place in suspicious circumstances and the investigation of which was conducted initially by Police Station Nowshera and then by SHO Darhal, thereafter he personally investigated the matter and during investigation it was found that the accused persons wanted to snatch the land of Sardar Ali who is father of deceased because after the death of Janat Bibi accused used to quarrel with Sardar Ali, father of deceased and wanted to eliminate both his sons. It was further stated that all accused persons in conspiracy with each other, took the deceased in their house and committed his murder by giving blow with some object on his head. 3. We have considered the submissions made by the learned counsel for the parties and have perused the record. At the outset it is pertinent to mention that there is no direct evidence in the case and the entire case of the prosecution is based on circumstantial evidence. As per the prosecution story the deceased was called by one Jameela Begum for harvesting the crops on the day of incident. The parties are related to each other. The deceased was missed since the date of incident, thereupon investigation completed and proceedings under Section 174 of the Code of Criminal Procedure were initiated and the statements of the witnesses under Section 175 of the Code of Criminal Procedure were recorded in which nothing incriminating was found against the respondents. Thereafter the matter was again inquired into under Section 174 of the Cr. P.C. when Mohd. Ishaq complainant filed written application on 17.10.2010. Though the FIR was lodged at Police Station Nowshera but SHO Darhal without any authority carried out investigation and eventually the charge sheet was filed. 4. PW Mohd. Tarif, brother of the deceased, has stated that there was a dispute with regard to the land between them and accused persons and the accused persons wanted to snatch the land from them. 4. PW Mohd. Tarif, brother of the deceased, has stated that there was a dispute with regard to the land between them and accused persons and the accused persons wanted to snatch the land from them. The aforesaid witness is a witness to the postmortem of the deceased. In the cross-examination, the aforesaid witness has stated that the deceased was not killed in his presence. PW Mohd. Hameed is a witness to the postmortem of the deceased. PW Ghulam Rasool is also a witness to the postmortem. PW Mohd. Alyas was also present at the time when the postmortem was conducted. PW Mst. Farzand Bi in her cross-examination has stated that the police had recorded her statement after six months and though the police had come on spot many times but it did not enquire from her. From the evidence of Mohd. Ishaq it is evident that he is hearsay witness. PW Mohd. Razak is also a hearsay witness. PW Abdul Hameed has not stated anything incriminating against the accused persons. PW Mohd. Ilyas is also a hearsay witness. It is pertinent to mention that the statements of PWs Mohd. Ishaq, Mohd. Razaq and Mohd. Ilyas have been recorded under Section 164-A Cr. P.C. on 24.11.2010 after more than six months of incident and their statements have also been recorded under Section 161 Cr. P. C. on 18.10.2010, whereas statements of PWs Mohd. Tarif, Mohd. Hamid, Ghulam Rasool and Sardar Ali have been recorded under Section 161 of the Cr. P.C. on 18.10.2010 after more than five months of the incident and on the same day First Information Report was lodged. The statements of PWs Abdul Qadir and Farzand Bi have been recorded on 19.10.2010 after more than five months from the date of occurrence. The First Information Report has been lodged on 18.10.2010 after more than 5½ months of incident. The delay in filing the First Information Report has not been explained by the prosecution. 5. From the perusal of the statements of the eye witnesses recorded on behalf of the prosecution, it is evident that the only fact which emerges from their statements is that the respondents and deceased have inimical relations and have dispute over the land. There is no evidence on record which connects the respondents with the alleged commission of offence. 6. From the perusal of the statements of the eye witnesses recorded on behalf of the prosecution, it is evident that the only fact which emerges from their statements is that the respondents and deceased have inimical relations and have dispute over the land. There is no evidence on record which connects the respondents with the alleged commission of offence. 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.