Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 660 (JK)

State of J&K v. Nissar Ahmad Bhat

2020-12-04

RAJNESH OSWAL

body2020
Judgment Rajnesh Oswal, J.—The present acquittal appeal has been preferred against the judgment dated 21.12.2013 passed by the Principal Sessions Judge, Srinagar by virtue of which, the respondents-accused were acquitted of charges for commission of offences under sections 306, 498-A and 120-B RPC in FIR No. 175/2002 of Police Station, Saddar, Srinagar. 2. The facts those are necessary for disposal of the present appeal are that an FIR bearing No. 175/2002 of Police Station Saddar, Srinagar was registered pursuant to a report lodged by the complainant on 17.05.2002 in the aforesaid Police Station. It was stated by the complainant that his daughter Mst. Shafeeqa was married to accused-Nissar Ahmad (respondent No. 1) and she had been residing with her husband-respondent No. 1 at Mehjoor Nagar for about a year. It was further reported that the mother-in-law of his daughter, besides her sons namely, Bilal Ahmad Bhat and Ghulam Rasool Bhat with whom she was residing after the marriage were teasing her for dowry and they were regularly abusing her, that resulted in commission of suicide by her daughter by pouring kerosene upon her, subsequent to which she died in the SMHS Hospital. After the conclusion of the investigation, the challan was filed against the respondents. Charges were framed for commission of offences under sections 306, 498-A and 120-B RPC against the respondents. The respondents did not plead guilty and claimed to be tried. The prosecution was directed to lead its evidence. The prosecution has examined the prosecution witnesses, namely, Ghulam Qadir Ahanger, Gull Mohammad Ahangar, Mehraj-Ud-Din Ahangar, Hilal Ahmad Ahangar, Bashir Ahmad Khanday, Mohammad Sideeq Dar and Mohinder Singh. It is necessary to have brief resume of the prosecution witnesses. 3. PW Ghulam Qadir Ahangar has stated that the deceased Shafeeqa was his daughter and the respondents are his nephews. Accused Nissar Ahmad had lured her daughter Shafeeqa and after her marriage with the said accused she resided in the house of the accused for about 8/9 months. He does not know about the state of relations between his daughter and the accused. Her daughter used to come to their home along with accused No. 1. However, they never stayed at their home for the night. He has never visited the house of the accused. He does not know about the state of relations between his daughter and the accused. Her daughter used to come to their home along with accused No. 1. However, they never stayed at their home for the night. He has never visited the house of the accused. One day he had gone to Dargah Hazratbal and on his return he was told by his neighbours that his daughter has suffered burn injuries and she was admitted in the Hospital. He has further stated that when his daughter was kidnapped by the accused he had attempted to commit suicide. His daughter died in the Hospital after eight days and was subsequently buried in Drugian graveyard. She has no issue. Her body was totally burnt in the house of the accused, therefore, he cannot say as to how she sustained the burn injuries. In cross-examination, he has stated that last rites of the deceased were performed by the accused. Deceased Shafeeqa had never complained about any ill attitude of accused. 4. PW Hilal Ahmad Ahangar has stated that the accused are known to him. Some two years ago one Ali Mohammad Dar, who is maternal uncle of accused No. 1 came and informed him about burning of his sister. He also told him that his sister was in Hospital after she suffered the burn injuries. The said Ali Mohammad Dar told in the first instance that his sister had suffered burns because of Gas explosion and thereafter told him that she had committed suicide, meanwhile Police arrived and he was taken to Mehjoor Nagar, where the accused Nisar Ahmad was residing with his wife and other family members. When they reached near the house it was found locked. They went inside and found the house having been cleaned. Police seized the tin. After six days his sister died in the Hospital who was subsequently buried. In cross examination, he has stated that the accused No. 1 and the deceased had good relations and whenever he visited their house they were found living peacefully. 5. PW Mohammad Sideeq Dar has stated that the complainant and the respondents are known to him. Mst. Shafeeqa was also known to him. She was married to accused Nisar Ahmad respondent No. 1 herein. She died in her in-laws house at Mehjoor Nagar, but he did not know as to how she died. 5. PW Mohammad Sideeq Dar has stated that the complainant and the respondents are known to him. Mst. Shafeeqa was also known to him. She was married to accused Nisar Ahmad respondent No. 1 herein. She died in her in-laws house at Mehjoor Nagar, but he did not know as to how she died. The body of the deceased had burn injuries. In cross examination, he has stated that he has no personal knowledge as to how the deceased died. 6. PWs Gull Mohammad Ahangar, Mehraj-Ud-Din Ahangar and Bashir Ahmad Khanday have not supported the prosecution version and were declared hostile. 7. PW Mohinder Singh has stated that on 17.05.2002 he was posted as ASI in Police Station, Saddar. At quarter past seven in the evening a case was entrusted to him that was registered on a verbal report lodged by the complainant to the effect that his daughter was under treatment in SMHS Hospital, who had been burnt by pouring Kerosene. He along with other Police official went to SMHS Hospital and found Ms. Shafeeqa struggling for life and death. He recorded the statement of deceased under section 161 Cr.P.C. and proceeded towards Mehjoor Nagar the place of occurrence where the deceased had allegedly put herself on fire. The room where the occurrence had taken place, only empty Kerosene tin, a Mug and spoon were found those were seized. On 18.05.2002, he again went to SMHS Hospital to record the statement of the deceased under section 161 Cr.P.C. and it came to light that accused were demanding dowry from the deceased. It was also stated to him that three days prior to the occurrence the deceased was beaten by accused for having committed theft. On 23.05.2002 Bemina Police Post informed him that deceased Shafeeqa has succumbed to her injuries and her last rites were being performed. He accordingly, went to Police Post Bemina and found five/six thousand people who refused to hand over the dead body in view of the deceased being a lady. They completed the formalities. He recorded the statement of the witnesses. He recorded the statement of the deceased twice during investigation. In cross-examination, he has stated that the statement of the deceased was not recorded in presence of any Magistrate nor in presence of any Doctor, who had examined/treated the deceased. They completed the formalities. He recorded the statement of the witnesses. He recorded the statement of the deceased twice during investigation. In cross-examination, he has stated that the statement of the deceased was not recorded in presence of any Magistrate nor in presence of any Doctor, who had examined/treated the deceased. He had himself recorded the statement of the deceased, but no superior officer was present at that time. He recorded the statement of the deceased in the Hospital. He further stated that it is correct that postmortem of the deceased was not conducted because her legal heirs did not allow the same. When he went on spot, relations of both the parties were present and all of them opposed conducting of the postmortem. He did not seal the seized items. Prior to the registration of the FIR, no complaint was received in the Police Station. He did not obtain opinion from any Doctor as to for how long the deceased could survive. Statement of the deceased was neither recorded in presence of the Magistrate, nor in presence of the Doctor on duty. 8. After the recording of statement of the accused under section 342 Cr.P.C, the respondents have also examined two witnesses in defence, namely, Riyaz Ahmad Ahangar and Sona Mali. Their testimonies are also required to be examined. 9. DW Riyaz Ahmad Ahangar has stated that the deceased and accused No. 1 were husband and wife and they were cousins also. They were residing separately at Mehjoor Nagar. He used to visit them and they were living together happily. On the day of occurrence, he was driving an auto rickshaw when he was informed by a Baker that there was some fire incident in his house. When he went to his home he found that deceased had set herself on fire and accused had taken her to Hospital. In the Hospital the mother of the deceased, besides the accused were taking care of the deceased. In cross examination, he has stated that the deceased was able to talk for three days in Hospital. Accused No. 1 is his cousin. He was not present when occurrence took place. 10. DW Sona Mali has stated that the deceased was wife of accused No. 1 and accused No. 1 was her cousin. They were residing separately at Mehjoor Nagar. They had themselves married to each other. Accused No. 1 is his cousin. He was not present when occurrence took place. 10. DW Sona Mali has stated that the deceased was wife of accused No. 1 and accused No. 1 was her cousin. They were residing separately at Mehjoor Nagar. They had themselves married to each other. When the deceased put herself on fire, accused No. 1 was not there. He took her to Hospital. On the 4th day of occurrence, the Police came on spot, when the deceased was in the Hospital. The family members of the accused were not teasing the deceased. They did not lodge any report in the Police Station. The deceased has never complained before her about the ill attitude and till she remained admitted in the Hospital she was present there. She wants that justice be done with the accused who have not committed any offence. In cross examination, she has stated that her daughter i.e. the deceased had eloped and married with accused Nisar Ahmad. She and her husband were not happy with the said marriage. 11. Thus, this is the whole prosecution evidence as well as defence evidence and after the closure of the evidence, the learned trial court after hearing both the sides, acquitted the respondents vide judgment dated 21.12.2013. 12. Mr. B. A. Dar, learned Senior AAG appearing for the appellant has vehemently argued that the prosecution has successfully proved its case and the witnesses examined by the prosecution have categorically proved that upon teasing by the accused-respondents, the deceased was compelled to set herself ablaze. It is further submitted by Mr. Dar that the impugned judgment is against the law and facts of the present case and laid much emphasis that the learned trial court has not relied upon the dying declaration of the deceased as also not appreciated the evidence in its right perspective. 13. Per contra, Mr. H. Furrahi, learned counsel appearing for the respondents has supported the judgment of the trial court. He submitted that the learned trial court has rightly acquitted the respondents and the close relatives of the deceased have not supported the prosecution case and there is absolutely no evidence that establish the commission of the offence by the respondents. 14. Heard and considered the rival contentions of the parties and perused the evidence. 15. He submitted that the learned trial court has rightly acquitted the respondents and the close relatives of the deceased have not supported the prosecution case and there is absolutely no evidence that establish the commission of the offence by the respondents. 14. Heard and considered the rival contentions of the parties and perused the evidence. 15. In order to bring home the charge for commission of offence under section 306 RPC, it is incumbent upon the prosecution to demonstrate that the accused by virtue of their acts or omission abetted the commission of suicide by the deceased but the whole prosecution evidence is absolutely silent about the same. It is an admitted fact that the deceased Shafeeqa and respondent No. 1 had married against the wishes of the parents of the deceased. Nonetheless, there is no evidence on record to demonstrate that the respondents are guilty of any conduct that forced the deceased Shafeeqa to commit suicide. Even the father of the deceased, Ghulam Qadir Ahangar has stated that he did not know about the state of relations between his daughter and the respondents and he has further admitted that the deceased Shafeeqa has never complained about ill attitude of the accused. Even the mother of the deceased, who appeared as a defence witness, has categorically stated that the deceased never complained before her about the ill attitude of the accused. Till she remained admitted in the hospital she was present there. She has further stated that the accused have not committed any offence. So far as the offence under section 498-A RPC is concerned, there is also no evidence on record that the deceased was harassed for dowry, as such, the respondents deserved to be acquitted of charge under section 498-A RPC as well. 16. It is evident that the statements of the deceased were recorded by the Investigating Officer, Mr. Mohinder Singh, ASI but the same were not recorded in the presence of Doctor and also Investigating Officer has stated nothing as to whether he had obtained any certificate with regard to the fitness of the deceased to make any such statement, as such, the contention of Mr. Mohinder Singh, ASI but the same were not recorded in the presence of Doctor and also Investigating Officer has stated nothing as to whether he had obtained any certificate with regard to the fitness of the deceased to make any such statement, as such, the contention of Mr. Dar that there was dying declaration of the deceased and the accused could not have been acquitted, is without any merit particularly in view of the fact that the mother and father of the deceased have stated nothing about the ill treatment meted to the deceased by the respondents. 17. Learned Sr. AAG has not been able to convince this Court that the opinion formed by the learned trial court is perverse and contrary to the evidence led by the prosecution. No doubt the powers of the appellate court in appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusion there from the appellate court can interfere with the order of acquittal. In view of the failure of the prosecution, the trial court had only one option that to acquit the accused. 18. For all what has been discussed above, the learned trial court while appreciating the evidence, has rightly come to the conclusion that the respondents are required to be acquitted, as such, the finding recorded by the learned trial court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore no case for interference is made out. In the result, this appeal is without any merit and is hereby dismissed.