Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 405 (JK)

State Th. SHO P/S City, Jammu v. Mukhtiar Ahmad

2021-08-09

SANJEEV KUMAR

body2021
JUDGMENT : SLA 40/2015 The applicant/appellant intends to challenge the judgment of acquittal dated 19.01.2015 recorded by the learned Principal Sessions Judge, Jammu ['trial Court'] in file No. 21/Sessions titled 'State vs. Mukhtar Ahmed and has, therefore, filed the instant application seeking leave of the Court to file appeal. The application, for the reasons stated therein, is allowed. CRAA No. 25/2015 1. With the consent of learned counsel for the parties, this appeal is admitted and taken up for final consideration. 2. Before I advert to the grounds of challenge urged by the appellant to assail the judgment of acquittal, impugned in this appeal, it would be worthwhile to notice few material facts : As per the prosecution, the respondent forged a valuable security in the shape of appointment order dated 05.02.2007 as per which one Pooja Devi was shown to be adjusted as Class-IV in SMGS Hospital, Jammu by the Deputy Superintendent of the said Hospital. It was alleged that the aforesaid security was meant to be used for the purpose of cheating. 3. With a view to bring home the charge against the respondent, the prosecution examined PW1 Dr. Mumtaz Goni, PW2 Darshana Devi, PW3 Arjun Singh, PW4 Dr. Nazir Hussain, PW5 Sukhchain Singh, PW6 Pooja Devi, PW7 Rakesh Hangloo and PW8 Parshotam Singh. There was, however, no evidence led by the respondent in defence. 4. The trial Court, after evaluating the evidence on record, came to the conclusion that there were material contradictions in the testimonies of the witnesses examined by the prosecution and therefore, it was not safe to rely upon their evidence and convict the respondent for the commission of offence he was charged with. The respondent-accused was, thus, acquitted in terms of the judgment impugned. 5. Mr. Sawhney learned AAG appearing for the appellant assails the impugned judgment, inter alia, on the ground that the learned trial Court has given undue importance to the minor contradictions appearing in the testimonies of the prosecution witnesses and has not appreciated the fact that the prosecution had sufficiently proved that the document i.e., appointment letter used by Pooja Devi seeking employment in the Hospital aforesaid, was actually forged by the respondent. He argues that the trial Court miserably failed to appreciate the statement of Dr. Rakesh Hangloo, who had examined the forged document and given his report. He argues that the trial Court miserably failed to appreciate the statement of Dr. Rakesh Hangloo, who had examined the forged document and given his report. Learned counsel lastly urged that even if this Court comes to the conclusion that the offence of forgery is not proved against the respondent, still it is a case of cheating and, therefore, the respondent could have been charged for the said offence and, accordingly, punished. 6. Having heard learned counsel for the parties and perused the record, I am of the view that given the nature of evidence led by the prosecution, the trial Court had no option, but to hold that the prosecution had failed to prove the guilt of respondent beyond reasonable doubt. The acquittal of the respondent, in these circumstances, cannot be said to be bad in law which may require reversal in this appeal. 7. As per the statement of PW Dr. Mumtaz Goni, on 07.02.2007 she was informed by the Medical Superintendent of SMGS Hospital, Jammu that a forged order had been presented before him. Acting upon the said information given by the Medical Superintendent, she informed the police to investigate the matter by writing a communication to the SHO Police Station City, Jammu. She, however, was not shown the forged letter in the Court. Similarly, PW4 Dr. Nazir Hussain in his deposition stated that, on 07.02.2007 when he was posted as Deputy Superintendent SMGS Hospital, Jammu, one Pooja Devi came to him with an appointment order pertaining to Class-IV purportedly issued by the Deputy Superintendent, SMGS Hospital, Jammu. He found the said order not having his signatures and also that it was not bearing any dispatch number. Finding the appointment order as a fraudulent one, he wrote a letter to the Medical Superintendent, SMGS Hospital, Jammu for further necessary action in the matter. 8. So far as the statement of PW Pooja Devi is concerned, she, in her statement, has stated that she had met with the respondent in Shalamar Hospital where her mother was admitted. The respondent informed her that he would get her a job for a consideration of Rs.6000/-. She also claimed to have given him Rs.2000/- as advance. It is her further statement that the respondent gave her the appointment order and asked her to join as and when he would tell her. The respondent informed her that he would get her a job for a consideration of Rs.6000/-. She also claimed to have given him Rs.2000/- as advance. It is her further statement that the respondent gave her the appointment order and asked her to join as and when he would tell her. After few days, she went to the Superintendent SMGS Hospital, Jammu, who sent her to the Police Station. She further stated that she called the respondent to the Hospital to give him the balance money when he was arrested by the two policemen. In her cross-examination, she stated that when she was given the appointment order by the respondent, her mother was also present. 9. The story projected by PW Pooja Devi is different from the one emerging from the prosecution version. PW Pooja Devi in her statement has claimed that it was she along with her mother, who went to the Police Station with the forged appointment order, whereas the prosecution story which is supported by PW Dr. Nazir Hussain and Dr. Mumtaz Goni, the order of appointment was presented by Pooja Devi before the Deputy Superintendent, SMGS Hospital, Jammu, who finding it to be a forged one, wrote a communication to the Superintendent SMGS, Hospital Jammu for further action. The matter landed before the Principal, GMC Hospital, Jammu who, then informed the police to investigate the matter. 10. Two versions of the story are poles apart rendering the prosecution case, as set up against the respondent, highly doubtful. There is major contradiction in the manner the forged instrument i.e. the appointment order was seized. Going by the statement of Dr. Nazir Hussain and Dr. Mumtaz Goni, the appointment order was presented by Pooja Devi before the Deputy Superintendent, SMGS Hospital, Jammu. The same was forwarded by the Deputy Superintendent, SMGS Hospital to the Superintendent SMGS Hospital, Jammu who, in turn, referred it to PW Mumtaz Goni, the then Principal of GMC, Jammu. It is the Principal GMC, Jammu PW Mumtaz Goni who ultimately referred the matter to the police for investigation, whereas as per the statement of PW5 Sukhchain Singh, the respondent-accused after his arrest was taken to the Police Station, where his personal search was conducted. It was during the personal search of the respondent, adjustment order dated 01.03.2007 was recovered which was in respect of Pooja Devi. It was during the personal search of the respondent, adjustment order dated 01.03.2007 was recovered which was in respect of Pooja Devi. To the similar effect is the statement of PW3 Arjun Singh, who, at the relevant time, was posted in the said Police Station. In his statement, he has claimed that a letter in which it was written 'adjustment' was recovered from the pocket of the respondent. 11. The aforesaid two statements put the whole prosecution story in serious doubt. It is not clearly forthcoming from the evidence as to whether the letter, which was recovered from the pocket of the respondent and the letter which was presented by PW Pooja Devi before the Deputy Superintendent, SMGS Hospital, was the same document or there were in existence two documents, one belonging to appointment of Pooja Devi and the other with respect to her adjustment. 12. It is a clear case of poor and defective investigation and equally hopeless prosecution. Having regard to the nature of evidence that was collected by the Investigating Officer during investigation and that which was led during the trial by the prosecution, the only option left with the trial Court was to dismiss the charge-sheet and to acquit the respondent. This exactly is what has been done by the trial Court. I do not see any reason or justification to take a view different from the one taken by the trial Court. 13. Having carefully gone through the impugned judgment and the evidence recorded during the trial, I do not find any illegality or infirmity with the conclusion arrived at by the trial Court on the basis of evaluation of evidence on record. I, therefore, concur with the conclusion of the trial Court that the prosecution has not been able to prove the guilt of respondent beyond shadow of reasonable doubt and, therefore, he is entitled to be acquitted by giving him the benefit of doubt. Otherwise also, the scope of interference with the judgment of acquittal recorded by the trial Court is very limited. Even if the appellate Court, on analysing the evidence on record, is of the opinion that two views are possible, yet the appellate Court would prefer the view which goes to the benefit of the accused. Otherwise also, the scope of interference with the judgment of acquittal recorded by the trial Court is very limited. Even if the appellate Court, on analysing the evidence on record, is of the opinion that two views are possible, yet the appellate Court would prefer the view which goes to the benefit of the accused. In this regard, reference can be made to a judgment of the Hon'ble Supreme Court in the case of Sambhaji Hindurao Deshmukh vs. State of Maharashtra, (2008) 11 SCC 186 wherein the Hon'ble Supreme Court held as under : “The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt (vide G.B. Patel vs. State of Maharashtra, 1978 (4) SCC 371 , Babu v. State of U.P., 1988 (2) SCC 21, Awadhesh v. State of M.P., 1988 (2) SCC 557 , Thanedar Singh v. State of M.P., 2002 (1) SCC 487 and State of Rajasthan vs. Raja Ram, 2003 (8) SCC 180 . Keeping the said principles in view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court”. 14. Keeping the said principles in view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court”. 14. In view of the circumscribed scope of interference with the judgment of acquittal, I am not inclined to interfere with the impugned judgment. I, accordingly, dismiss this appeal and uphold the judgment of acquittal passed by the learned trial Court. Registry to return back the record of trial Court, if received.