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2021 DIGILAW 516 (JK)

State of J&K v. Ab. Kareem

2021-09-29

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present appeal has been filed by the appellant-the then State against the judgment dated 30.12.2015 passed by the learned Principal Sessions Judge, Rajouri (hereinafter to be referred as the trial Court) by virtue of which the accused-respondent, namely, Abdul Kareem has been acquitted for commission of offence under Section 435 RPC in FIR No. 122/2011 of Police Station, Darhal. 2. The judgment impugned has been challenged on the ground that the learned trial Court has not rightly appreciated the evidence and the prosecution had proved the case against the accused-respondent by leading cogent evidence but despite that the respondent was acquitted. 3. The facts necessary for the disposal of the appeal are that on 10.12.2011, complainant, Nazir Hussain S/o Misri, Caste Gujjar R/o Nadian Tehsil Darhal District Rajouri (hereinafter to be referred as 'complainant') lodged a written report with Police Station, Darhal alleging therein that in the intervening night of 27/28th of November, 2011, some persons had set his 200 bundles of dumped grass on fire, reducing them to ashes. It was further stated that probably the said offence had been committed by the respondent, namely, Abdul Kareem S/o Raj Mohd. R/o Nadian, thereby causing loss to the tune of Rs. 1.00 lac. Pursuant to this, FIR No. 122/2011 under section 435 RPC was registered with Police Station, Darhal and after completion of the investigation, the challan for commission of offence under Section 435 RPC was filed against the accused/respondent. The charges were framed against the respondent for commission of offence under Section 435 RPC and thereafter, the prosecution was directed to lead evidence. The prosecution has produced as many as eight witnesses i.e. Mushtaq Hussain, Mohd. Gafoor, Fazal Hussain, Barket Hussain, Nazir Hussain, Ghulam Nabi (ASI), Nissar Hussain and Mohd. Rafiq Khan (S.I.). 4. Ms. Palvi Sharma, learned counsel appearing for the appellant-State vehemently submits that the complainant has categorically stated that the respondent in the intervening night of 26/27th November, 2011 set the grass of the complainant on fire and despite there being positive evidence, the learned trial court has wrongly acquitted the respondent. 5. Rafiq Khan (S.I.). 4. Ms. Palvi Sharma, learned counsel appearing for the appellant-State vehemently submits that the complainant has categorically stated that the respondent in the intervening night of 26/27th November, 2011 set the grass of the complainant on fire and despite there being positive evidence, the learned trial court has wrongly acquitted the respondent. 5. Per contra, learned counsel appearing for the accused-respondent submits that the name of the respondent was never mentioned in the application filed by the complainant, pursuant to which, the FIR was lodged and that there was delay in lodging the FIR and the learned trial court has rightly appreciated the evidence. 6. Heard learned counsel for the parties and perused the record. 7. Before appreciating the contention raised by the parties, it would be appropriate to have brief resume of the evidence. 8. PW-Nazir Hussain-Complainant stated that in the intervening night of 27/28th of November, 2011 he came out of his house and saw the respondent-accused setting the grass on fire that was already dumped there. He identified the accused in the light of the fire but the accused run away. Thereafter 30/40 people came on spot. As the accused had enmity with him so he set his grass on fire. Thereafter, the accused was also called in the Baradhari Panchayat but he did not participate in the same and thereafter he lodged an application marked as EXTP-1/1 with the Police Station, Darhal. Pursuant to which, FIR was lodged. He has proved the contents of application as also the seizure memo of the ashes. He further submitted that he suffered a loss to the tune of Rs. 1.50 lacs. In cross examination, he stated that FIR was lodged with the Police Station after 10/12 days of the occurrence. The accused-respondent set his grass on fire at the instigation of Master Nissar, Barket Hussain and Fazal Hussain. However, he registered the FIR only against the accused-respondent. 9. PW-Mushtaq Hussain stated that Misri and Nazir Hussain are known to him. Last year, he had seen the grass of the complainant on fire. He along with other people too had gone on spot. He extinguished the fire. The said witness was declared hostile by the prosecution and during cross examination, nothing incriminating against the respondent could be elicited by the APP. 10. PW Mohd. Last year, he had seen the grass of the complainant on fire. He along with other people too had gone on spot. He extinguished the fire. The said witness was declared hostile by the prosecution and during cross examination, nothing incriminating against the respondent could be elicited by the APP. 10. PW Mohd. Gafoor stated that the accused is known to him and in the intervening night of 27/28th of November, 2011, the grass of the complainant was set on fire by the accused. During cross examination, he admitted that he is nephew of the complainant and simultaneously also pleaded his ignorance as to who had set the grass of the complainant on fire. He further deposed that he had made his statement that the respondent had set the grass on fire as per the asking of the complainant. 11. PW Fazal Hussain was also declared hostile and during cross-examination, no incriminating material could be elicited against the respondent. 12. PW-Barket Hussain stated that two years ago in the intervening night of 27/28th of November, 2011, he had gone to his in-laws' house and during the night when he came out of in-laws' house, there was light outside. He had seen the accused while standing near the grass and in the meanwhile the dumped grass caught the fire. He further stated that the accused had set the said grass on fire. In cross-examination, he stated that the complainant was his relative. The place occurrence is one and a half km away from his house, however, his inlaws' house is in front of house of the complainant. He denied that he was a history sheeter in the Police Station, Darhal. On raising hue and cry, Nazir Hussain had also come there. The houses of Master Lal Hussain, Haji Fazal Hussain, Ghulam Qadir, Master Barket and Gulzar etc. are near to the place of occurrence. On raising hue and cry, all the above named people had come on spot. 13. PW-Ghulam Nabi stated that he had presented the challan only in the Court and the investigation was conducted by another Investigating Officer. 14. PW Nissar Hussain stated that in the year 2011, he was posted at Police Station Darhal. He had partly investigated the instant FIR. During the course of investigation, he visited the spot and prepared the site plan marked as Ext-P8/1. 14. PW Nissar Hussain stated that in the year 2011, he was posted at Police Station Darhal. He had partly investigated the instant FIR. During the course of investigation, he visited the spot and prepared the site plan marked as Ext-P8/1. He also proved the seizure memo with regard to ash that stood already exhibited as ExtP1/2. He recorded the statements of the witnesses under Section 161 Cr.P.C. and after his transfer the investigation was conducted by another I.O. During cross-examination, he stated that the house of the accused is one and a half km away from the place of occurrence. He pleaded ignorance as to whether any litigation was going on between the complainant and the accused or not. He admitted that the FIR was registered after 13/14 days of the occurrence. 15. PW Mohd. Rafiq stated that in the year 2011, he was posted as SHO Police Station, Darhal. The case FIR No. 122/2011 marked as EXTP-1/1 was registered by him upon the application of Nazir Hussain. After investigation, the case was handed over to him and on perusal of the file, the offence under Section 435 RFC was proved against the accused. During cross-examination, he admitted that the case was registered on 10.12.2011, however, the copy of the FIR was sent to the court on 12.12.2011. 16. This is the only evidence that was led by the appellant before the trial Court. After recording the statement of the respondent under Section 342 of Cr.P.C., the learned trial Court acquitted the respondent as the respondent did not choose to lead the evidence in his defence. The only issue which the prosecution was required to prove was whether in the intervening night of 27/28th of November, 2011, the accused had put the grass of the complainant on fire or not. 17. A perusal of the statement of the complainant reveals that he lodged the FIR after 10/12 days of occurrence and moreso in the EXT-P1, pursuant to which, the FIR was registered, it was only stated by the complainant that probably the respondent might have set the grass on fire, meaning thereby that the complainant himself was not sure as to whether the respondent had put the grass on fire or not. 18. 18. The another witness examined by the prosecution, who to some extent has supported the prosecution is PW-Barkat Hussain, who is not only a relative of the complainant but also a chance witness. No doubt the testimony of the related witness is not required to be rejected only because of the reason that he is a related nonetheless it is the mandate of law that the testimony of the related witness is to be considered with due care and caution. It is required to be noted that the complainant had nowhere stated that Barkat Hussain was present on spot. 19. Taking into consideration that there was a delay in lodging FIR, coupled with the fact that the prosecution has not been able to lead cogent evidence to prove that it was the respondent who put grass of the complainant on fire and further that no independent witness has been examined by the prosecution to prove the charge against the respondent, this is not a fit case that requires any indulgence. 20. Learned counsel for the appellant has not been able to convince this Court that the opinion formed by the learned trial court is perverse and contrary to the facts 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. 21. For all what has been discussed above, the trial court has rightly acquitted the respondent. The learned trial Court, while appreciating the evidence, has rightly come to the conclusion that the respondent is required to be acquitted. I have also perused the judgment passed by the trial court and I find that the finding recorded by the trial court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore, no case for any indulgence is made out. In the result, this appeal, being without any merit, is hereby dismissed.