Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 737 (JK)

Mohd. Yakoob v. State of J&K

2018-09-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : SANJAY KUMAR GUPTA, J. 1. Through the medium of instant criminal appeal, the appellant inter-alia seeks setting aside of the judgment/order of sentence passed by the learned Sessions Judge, Rajouri dated 08.09.2005/09.09.2005 whereby the appellant has been convicted and sentenced u/s 332 RPC to undergo imprisonment for a period of one year and to pay fine of Rs. 1000/- and in default of making payment of fine the accused to undergo imprisonment for one month. 2. Facts giving rise to filing of this appeal briefly stated are that on 30.04.1998 an FIR No. 107/1998 for offences u/s 342/452/364/148/332/188/295 RPC came to be registered in Police Station Rajouri. As per the prosecution story, on 30.04.1998 the matriculation examination was being conducted in the Government High School, Manjakot and in this connection police personnel were deputed for duty in said examination centre. At about 2 PM, while the examination was going on in the centre, Mohd Yakoob came to the centre to enable a student to copy. He tried to enter into the school premises on 2/3 occasions but police constables Mohd Shabir and Dina Nath who were on duty sent him away. The accused in a fit of anger threatened the police personnel that he will teach them a lesson and went away. Thereafter at 3 PM, accused Mohd Yakoob along with Naik subedar Ganesh Lal and Jaimal Singh CHR belonging to RP along with 10/12 army jawans of 12 Grenadiers came on spot in an army vehicle inside the examination centre and started to search constable Mohd Shabir. Mohd Shabir on seeing the army personnel ran away from the spot; chasing Mohd Shabir, the army personnel while wearing shoes went inside the Mosque and thereby insulted the sanctity of the Mosque. The army personnel caused disturbance in the examination centre. Thereafter the army personnel caught police constable Dina Nath and after searching the police post, they confined the police personnel to the police post and also entered the police post and attacked the police. The army personnel caught hold of Dina Nath and beat him and took him in their vehicle. Moharar Chowki and IHC Abdul Gani were also beaten by the army personnel and till 3 PM they cordoned the police post. The aforementioned persons caused disturbance in the examination centre and the Mosque. They prevented the police personnel from discharging their official duty. Moharar Chowki and IHC Abdul Gani were also beaten by the army personnel and till 3 PM they cordoned the police post. The aforementioned persons caused disturbance in the examination centre and the Mosque. They prevented the police personnel from discharging their official duty. Four accused were found involved in the case; appellant was produced at the time of filing challan; rest three accused, namely Mohd. Shabir (police personal), N. Subeadar Ganesh Lal and CHR Jamail Singh both army personals were absconding; accordingly JCO of army who was present at that time stated that action against accused army personnel has been taken under law and non-bailable warrant was issued against police personal namely Mohd. Shabir. Mohd. Shabir appeared and accordingly, accused were charged for offences under Sections 342/452/364/148/332/188/295 RPC. 3. The statements of the accused were recorded. They denied their guilt and claimed trial. The prosecution in support of its case examined Dina Nath PW-1, Abdul Gani PW-2, Wazir Hussain PW-3, Mohd Ayub PW-4, Mohd Shakur PW-5, Manhaz Mohd PW-6, Badar Hussain PW-7, Sofi Muneer Mohd PW-8, Mohd Shabir PW-9 and Dr. Bashir Ahmed Choudhary PW-10 as witnesses. Court below after conclusion of trial convicted the accused/appellant and acquitted another accused. The brief resumes of witnesses read as under. 4. Dina Nath Constable PW-1 deposed that on 30.04.1998 he was posted in police post Manjakot. On that day he was on duty in the matriculation examination centre. The examination had started at 1 PM. Head constable Abdul Gani and other police personnel were also on duty. At about 2 PM accused Yakoob to facilitate the copying came into the examination centre and he was sent back by constable Mohd Shabir. He was sent back on 2/3 occasion and was not allowed to send the copying material inside. Thereafter accused Mohd Yakoob came back with army personnel into the examination centre and cordoned the examination hall. They asked about Constable Mohd Shabir and he informed that Constable Mohd Shabir is outside. When the army chased Mohd Shabir constable, Mohd Shabir went inside the Mosque. The army personnel caught him by the neck and accused Mohd Yakoob hit him on the face with a stone. The Superintendent Examination Hall also came on spot and asked as to why they are fighting with the police. He was badly beaten by the army and accused Mohd Yakoob. The army personnel caught him by the neck and accused Mohd Yakoob hit him on the face with a stone. The Superintendent Examination Hall also came on spot and asked as to why they are fighting with the police. He was badly beaten by the army and accused Mohd Yakoob. Thereafter the accused and the army went inside the Mosque and outraged the sanctity of the Mosque and broke the door of the Mosque. The army not finding Shabir in the Mosque came towards the police post. By that time the examination had finished. Thereafter the army cordoned the police post and enquired about constable Shabir. And then the army entered the police post and caused damage inside the chowki. They dragged him outside the police station and had taken him to the army head quarter in a vehicle. On way they had accosted SHO and a Major and they got him released. He was medically examined. In cross-examination deposed that the army had cordoned both the examination centre. They had slapped him and injured him. It is wrong that he had prevented the army personnel from conducting the search and thereafter the army had beaten him. In cross examination by counsel for accused No. 2 deposed that accused Yakoob had fought with him but accused Shabir had not done so. 5. Abdul Gani PW-2 deposed that he knows the accused. On 30.04.1998 he was posted at police post Manjakot and was performing his duty in the examination hall where the matriculation examination was being conducted. During this period accused Yakoob entered the premises where the examination was being conducted. He had come inside the premises to help a student to copy. Mohd Shabir and Dina Nath were posted inside the examination centre. They told the accused not to facilitate copying in the examination hall. On their refusal, the accused went away from there. Exactly after one hour, accused Yakoob along with the army came into the High School, Manjakot. The army started to search for Shabir and Dina Nath who had prevented the accused Yakoob to facilitate copy while they were on duty. Accused Yakoob said they have gone inside the Mosque whereupon the army started the search of the Mosque. The police personnel were not found inside the Mosque and thereafter the army cordoned the chowki. The army and Yakoob caught Dina Nath and took him away. Accused Yakoob said they have gone inside the Mosque whereupon the army started the search of the Mosque. The police personnel were not found inside the Mosque and thereafter the army cordoned the chowki. The army and Yakoob caught Dina Nath and took him away. Dina Nath was beaten by the army. Dina Nath was rescued by the SHO from the army camp in an injured condition. Thereafter FIR was registered. He had witnessed the occurrence. In cross-examination, it was deposed that he was posted at the examination centre. It is wrong that during the examination, police and the army had got information that some anti national element had entered into the examination hall. It is also wrong that on getting information army came on spot. On identification of accused Yakoob, the Army had taken the police personnel to their camp. It is wrong that the occurrence took place between the army and the police and the accused Yakoob has been wrongly implicated in the case. In cross-examination by counsel for accused deposed that accused No. 2 is an employee of armed police. Army personnel were searching for other Shabir who was posted in police post Manjakot. 6. Wazir Hussain PW-3 deposed that in 1998 he was posted in police chowki Manjakot. He was posted outside the exam. Accused Mohd Yakoob went inside the yard of the examination and was forbade by constables Mohd Shabir and Dina Nath from going inside the examination hall/yard. The police constables slapped the accused Mohd Yakoob. Thereafter the accused went away and the police constables stayed on their duty. After some time when the exam was ending, the accused along with army jawans entered the examination all. The army personnel started a search of the hall. Thereafter they searched the Mosque and then went to the police chowki. There the accused Mohd Yakoob and the army jawans beat the constables Dina Nath, Shabir and Incharge havaldar. Thereafter the army personnel took Dina Nath in their vehicle. Constable Dina Nath was badly beaten by the accused present in the court and the army. Thereafter the SHO and CO came on spot. In cross-examination, it was deposed that he as SPO was giving duty in the examination hall. He had informed his officer Abdul Gani havaldar that accused is repeatedly coming into the examination hall. Constable Dina Nath was badly beaten by the accused present in the court and the army. Thereafter the SHO and CO came on spot. In cross-examination, it was deposed that he as SPO was giving duty in the examination hall. He had informed his officer Abdul Gani havaldar that accused is repeatedly coming into the examination hall. It is wrong that militants had entered the examination hall in whose search the accused had gone into the hall. However, on confirmation by him and police it came to be known that accused Mohd Yakoob was repeatedly going into the examination hall to help a girl in copying who was giving her exam in the hall. However, he does not know who the girl was. The army had come from Ghambir. In his presence the army had beaten the police. It is incorrect that Dina Nath and Mohd Shabir knew about the militants and on enquiry, were not telling the army. The army had taken Shabir and Dina Nath to Ghambir. It is wrong that he is giving the statement as he belongs to the police. 7. Mohd Ayub PW-4 deposed that out of the accused he knows Mohd Yakoob. He does not know Mohd Shabir. In 1998 he was on duty in examination hall Manjakot. The other police official was also posted for duty in the examination hall. Accused Yakoob came into the examination hall for 3/4 times to facilitate copying by a student. The police forbade him from doing the same. The other accused was not present with accused Yakoob at that time. Thereafter the accused Yakoob went away. Thereafter he came along with the army and started search for Dina Nath who prevented the accused Yakoob from facilitating the cheating. Thereafter the army and accused Yakoob caught Dina Nath from the Mosque and the attacked the police chowki. The army took Dina Nath to the army camp. The army had cordoned the police chowki for 2/3 hours. In cross-examination, it was deposed that he was posted as SPO. Accused No. 1 as SPO was also posted there. It is wrong that during the exam, information was received that some enemy of the State had entered the examination hall and regarding which accused Yakoob had given the information to the army and that is why the army had cordoned the chowki and the examination hall. Accused No. 1 as SPO was also posted there. It is wrong that during the exam, information was received that some enemy of the State had entered the examination hall and regarding which accused Yakoob had given the information to the army and that is why the army had cordoned the chowki and the examination hall. Dina Nath and others were stopping the army from entering the examination hall and so the army beat Dina Nath and others. Thereafter the SP had come on spot and rescued the police from the army. 8. Mohd Sakur PW-5 deposed that he knows the accused. In April 1998 he was posted as SPO in police chowki Manjakot. On 30.04.1998 he was posted in hall ‘B’ of the Higher Secondary School, Manjakot where the matriculation exam was taking place. Accused Yakoob made 2/3 trips to the examination hall as he wanted to facilitate copying by a student. Shabir constable objected to the same and slapped the accused. After 15/20 minutes an army vehicle along with army jawans came on spot. The army jawans were armed. When the army came accused Yakoob was not present. However, accused Shabir was present. Thereafter, the army cordoned the police chowki, Manjakot and during the cordon, both the accused were present on spot. The army took Constable Dina Nath along with them. Both the accused were accompanying the army. 9. Niaz Mohd PW-6 deposed that he knows the accused. On 30.04.1998 he as Deputy Superintendent was on duty in the High Secondary School, Manjakot where the matriculation exam was being conducted. He does not know what had happened outside. He was declared hostile by the prosecution. 10. Badar Hussain PW-7 deposed that he knows the accused Yakoob and has not seen accused Shabir before. In April 1998 he was posted as Superintendent in the Manjakot centre where the metric exam was being conducted. On 30.04.1998 at about 2½ O’ clock the exam was going on and the students were giving the exam in the verandah. When he came into the verandah he heard a hue and cry in the yard of the school. Constable turned out one person Yakoob from the school yard. After about half an hour, accused Yakoob along with 10/12 army men entered the yard of the school. When he came into the verandah he heard a hue and cry in the yard of the school. Constable turned out one person Yakoob from the school yard. After about half an hour, accused Yakoob along with 10/12 army men entered the yard of the school. Dina Nath constable, who was giving duty in front of the verandah was beaten up, when he told the army men to desist from raising a hue and cry, army jawan pointed his gun towards him. Thereafter, the army people and Yakoob entered the Mosque to search for constable Shabir. In cross-examination, it was deposed that accused Yakoob worked as SPO with the army. He had not seen the accused Yakoob giving any material to any student for copying. It is wrong that the army had come inside the school on getting information that some anti nationals have come inside the examination hall. It is wrong that the police posted did not allow the army to enter the hall for search purpose. It is wrong that when the police prevented the army from entering the hall, the army beat the police personnel. 11. Sofi Mohd Muneer PW-8 denied knowledge of the occurrence and was declared hostile by the prosecution. 12. Mohd Shabir PW-9 deposed that he knows the accused. On 30.04.1998 the police party Dina Nath and Head Constable Abdul Gani were posted in the examination hall Manjakot. At about 2 PM, the army men came to the police chowki and enquired the whereabouts of Constable Shabir. Thereafter the army cordoned the police chowki. During this period, Constable Dina Nath came on spot; Mohd Shabir and Mohd Yakoob informed the army that Dina Nath was on duty at the examination hall. Thereupon the army beat Dina Nath and took him in their vehicle to their post. Thereafter SHO and SP rescued Dina Nath from the army. 13. Dr. Bashir Ahmed Choudhary PW-10 deposed that on 30.04.1998 he examined Dina Nath and vide certificate observed the following injuries on him: (1) A contusion mark on right eye brow, (2) a contusion mark on the left cheek, (3) contusion mark on left knee. In cross-examination, it was deposed that the injuries are possible by a fall. 13. Dr. Bashir Ahmed Choudhary PW-10 deposed that on 30.04.1998 he examined Dina Nath and vide certificate observed the following injuries on him: (1) A contusion mark on right eye brow, (2) a contusion mark on the left cheek, (3) contusion mark on left knee. In cross-examination, it was deposed that the injuries are possible by a fall. This is the only evidence of prosecution; the statements of accused were recorded under section 342 Cr.P.C. and as already held accused /appellant were convicted u/s 332 RPC and another accused was acquitted. 14. Counsel for appellant has argued that there is no convincing and reliable materials to convict the accused; prosecution has not established its case beyond reasonable doubts; that no civilian witnesses have been produced that prosecution has not proved the story as alleged in FIR, but has introduced new story during trial; that conviction cannot be based on surmise and conjectures that no army personnel have been produced as witnesses in order to prove the facts as narrated in FIR. Whereas GA has supported the conviction and sentence passed by court below. 15. I have considered the rival contentions. From the perusal of challan, it reveals that prosecution has cited as many as 17 witnesses, however examined 10 witnesses. I/O in the case has not been examined and even all the eye witnesses which were 15 in number as cited in challan have not been examined. 16. This court while dealing with conviction appeal has full power to re- appreciate the evidence, in order to see as to whether reasoning given by the trial Court while forming the conviction and passing the sentences, are as per law or not. Law is also clear that only quality of witnesses matters and not quantity. 17. The prosecution in the case was required to prove that on 30.04.1998 the matriculation examination was being conducted in the Government High School, Manjakot and in this connection police personnel were deputed for duty in the said examination centre. At about 2 PM, while the examination was going on in the said centre, Mohd Yakoob came to the centre to enable a student to copy. He tried to enter into the school premises on 2/3 occasions but police constables Mohd Shabir and Dina Nath who were on duty sent him away. At about 2 PM, while the examination was going on in the said centre, Mohd Yakoob came to the centre to enable a student to copy. He tried to enter into the school premises on 2/3 occasions but police constables Mohd Shabir and Dina Nath who were on duty sent him away. The accused in a fit of anger threatened the police personnel that he will teach them a lesson and went away. Thereafter at 3 PM, accused Mohd Yakoob along with Naik subedar Ganesh Lal and Jaimal Singh CHR belonging to RP along with 10/12 army jawans of 12 Grenadiers came on spot in an army vehicle inside the examination centre and started to search constable Mohd Shabir. Mohd Shabir on seeing the army personnel ran away from the spot; chasing Mohd Shabir, the army personnel while wearing shoes went inside the Mosque and thereby insulted the sanctity of the Mosque. The army personnel caused disturbance in the examination centre. Thereafter the army personnel caught police constable Dina Nath and after searching the police post, they confined the police personnel to the police post and also entered the police post and attacked the police. The army personnel caught hold of Dina Nath and beat him and took him in their vehicle. Moharar Chowki and IHC Abdul Gani were also beaten by the army personnel and till 3 PM they cordoned the police post. The aforementioned persons caused disturbance in the examination centre and the Mosque. They prevented the police personnel from discharging their official duty. Four accused were found involved in the case. 18. The Court below has held that accused Yakoob along with the army personnel entered the school premises looking for Constable Mohd Shabir and thereafter gone into the Mosque in search of Constable Mohd Shabir. And thereafter on not finding the constable Mohd Shabir in the Mosque, the accused Mohd Yakoob along with the army had cordoned the police chowki and caught hold of PW Dina Nath in the police post and beat him up and thereby prevented him from discharging his public duties. This finds corroboration in the testimony of Mohd Shabir PW-9 who stated that on information of the accused, the army personnel beat PW-Dina Nath and thereafter took him away. This finds corroboration in the testimony of Mohd Shabir PW-9 who stated that on information of the accused, the army personnel beat PW-Dina Nath and thereafter took him away. Court below further held that the occurrence took place as alleged by the prosecution and the police witnesses, finds support from the testimony of the independent witness Badar Hussain PW-7 who deposed that in April 1998 he was posted as Superintendent in the Manjakot centre where the matriculation exam was being conducted. On 30.04.1998 at about 2½ O’ clock when the exam was going on and the students were giving the exam in the verandah, he came into the verandah, heard hue and cry in the yard of the school. Constable turned out one person Yakoob from the school yard. After about ½ hour, accused Yakoob along with 10/12 army men entered the yard of the school. Dina Nath constable who was on duty in front of the verandah was beaten up. When he told the army men to desist from raising a hue and cry, army jawan pointed his gun towards him. Thereafter, the army people and Yakoob entered the Mosque to search for constable Shabir. 19. I have re-appreciated the statements of these eye witnesses. Although some of witnesses have named that accused/appellant and army personal have beaten PW Dina Nath; but at the same time two PWs Niaz Mohd. and Sofi Mohd. Muneer have denied such occurrence. Even PW Bader Hussain, who was Superintendent of centre where exams was going on, has deposed that when he came into the verandah he heard a hue and cry in the yard of the school; Constable turned out one person Yakoob from the school yard; After about ½ hour, accused Yakoob along with 10/12 army men entered the yard of the school; Dina Nath constable, who was giving duty in front of the verandah was beaten up, when he told the army men to desist from raising a hue and cry, army jawan pointed his gun towards him. Thereafter, the army people and Yakoob entered the Mosque to search for constable Shabir. He has not thus specifically named the appellant/accused, who has beaten the PW Dina Nath. In cross-examination he also deposed that he had not seen the accused Yakoob giving any material to any student for copying. Thereafter, the army people and Yakoob entered the Mosque to search for constable Shabir. He has not thus specifically named the appellant/accused, who has beaten the PW Dina Nath. In cross-examination he also deposed that he had not seen the accused Yakoob giving any material to any student for copying. During investigation, no efforts have been made by I/O to know about the student to whom accused/appellant wanted to help in copying during examination. 20. From further perusal of statements of eye witnesses and other material witnesses recorded under section 161 Cr.P.C. during investigation, it would reveal that they have also named another accused namely Shabir S/o Nazir Hussain R/o Neeli, Manjakot, but during trial, witnesses have stated that he was not there; in this way there is material contradiction in their statements. During investigation, as already noted, I/O did not make any effort to know about the name of student to whom appellant/accused tried to help in copying during examination at the very relevant time. 21. Law is clear when there are contradictions in the statements of material witnesses and relevant/important links have been left during investigation, then it was only the I/O who could have clarified as to what actually was stated by these witnesses and why he left important links (name and other detail of student whom accused tried to help in copying) in the case. As already noted I/O in the case has not been examined and no explanation has been given. 22. In 1986 Cr. LJ 490 in case titled Ratha Jena v. State of Orissa it is held as under:- “...........In this connection I would refer to a case reported in 1972 Cri. LJ 976 (Mys), Hirianna Shetty v. State of Mysore, in which a learned single Judge of the Mysore High Court (as it then was) held as follows: Strong reliance was placed upon the decision of this Court in P. Rangappa v. State of Mysore, Cr. R.P. 397 of 1970 decided on 5-2-1971 (Mys). In the said case Santosh, J. has observed as follows: It is needless to point out that the right of bringing on record contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused. R.P. 397 of 1970 decided on 5-2-1971 (Mys). In the said case Santosh, J. has observed as follows: It is needless to point out that the right of bringing on record contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused. It is by showing that the witness has made improvements or given evidence which contradicts his earlier statement, the accused is able to satisfy the court that the witness is not a reliable witness. The non-examination of the Investigating Officer is a serious infirmity in the prosecution case which results in prejudice to the accused. It is clear from the above decision that the examination of the Investigating Officer is necessary in order to bring on record the contradictions in the statement of witnesses and that such a right is a valuable right of the accused. Further it is clear that non-examination of the Investigating Officer is a serious infirmity, in the prosecution case in so far as it deprived the accused of the opportunity to show to the court that witnesses were not reliable witnesses by proving contradictions in the earlier statement. 23. Non examination of I/O is not always fatal, but it depends upon facts of each case. The investigating officer is material witness, because he investigates the matter, records the statements of witnesses, goes on spot for the objective findings, prepares the C/D file, receives paper during investigation and after collecting materials gives finding against or in favour of prosecution. If he prepares and submits report in favour of prosecution, then Court has to consider the same, conduct trial and gives findings provided under law. I/O has to place his case unvarnished before Court as it is. 24. Due to non-examination of I/O and SHO, FIR in the present case, site plan, Challan and copy of Roznamcha no. 15 dated 30.4.1998 of Police post Manzakote in which report of occurrence was given have remained unproved. It has also come in the statements of material witnesses that army personnel and accused/appellant have beaten constables Dina Nath & Mohd. Shabir, so it was only I/O who could have clarified as to how many army persons were there. 15 dated 30.4.1998 of Police post Manzakote in which report of occurrence was given have remained unproved. It has also come in the statements of material witnesses that army personnel and accused/appellant have beaten constables Dina Nath & Mohd. Shabir, so it was only I/O who could have clarified as to how many army persons were there. There is also no evidence as to whether the police personnel of police post Manakote, allegedly deployed at examination centre, were actually deployed at examination centre, because no copy of roznamcha or any deployment order has been produced along with challan in this regard. There were specific suggestions put to prosecution witnesses during trial, as to whether they restrained the army and police personnel from entering into the examination hall for searching the antinational elements, which witnesses have denied. So examination of I/O was also very much essential and due to his non examination, a great prejudice has been caused to appellant/accused in his defence. It is prosecution case that accused was SPO attached with army, and during 1998, there were antinational activities in said area; it was duty of army and police to protect the area from antinational activity. Had I/O been examined, accused would have clarified his defence in this regard from him. Being police SPO, appellant cannot be convicted on the basis of evidence that he was present on spot. Whole incident as alleged by prosecution has not been proved, because there is no evidence with regard to offence of 295 of RPC; there is no evidence as to which order of competent authority was violated. 25. The Courts while appreciating the evidence in criminal cases have to see the decree of proof is maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes the slightest doubts regarding the involvement of accused, Court should not go on convicting the accused. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the Court to punish the accused on the basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. 26. Thus, following the well known cardinal principles of law in appreciating the facts in criminal cases, I do not find any convincing evidence against the appellant. The law does not permit the Court to punish the accused on the basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. 26. Thus, following the well known cardinal principles of law in appreciating the facts in criminal cases, I do not find any convincing evidence against the appellant. In view of what has been discussed above, this appeal is allowed, and the conviction and sentence passed by Court below is set aside. Accused/appellant is acquitted of all charges leveled against him. Challan is dismissed. Appellant is discharged from bail bonds.