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2022 DIGILAW 221 (JK)

Shahnaz Kosar v. Union Territory of J&K

2022-05-09

SINDHU SHARMA

body2022
JUDGMENT : 1. The petitioner in the present petition seeks a writ in the nature of mandamus to record the further statement of petitioner No. 1 under Section 164-A of Code of Criminal Procedure (Cr.P.C.) in FIR No. 205 of 2018 dated 30.11.2018, registered in Police Station, Mendhar under Sections 452, 307, 109, 325, 323 of RPC. A further direction is also sought to record the statement of petitioner No. 2 by respondent No. 3 or in the Court of Law. 2. Briefly stated the facts as narrated in this petition are that; on 29.11.2019, when the petitioner No. 2 was on Election Duty in Nowshera, the lock of his house was broken in his native Village Salwah, Tehsil Mendhar, District Poonch. Both the petitioners immediately went to Salwah and found that lock of their house was broken and goods were scattered all over. 3. A complaint was made by petitioner No. 2 on 30.11.2018 at Police Station, Mendhar stating that on 30.11.2018, when he was not present at home, the accused who are their neighbours having old enmity with them over a piece of land, attacked his wife Shahnaz Kossar with an intention to kill her. They attacked his wife with knife on nose and leg and also thrashed her with a hand pump, on hearing her cry for help, some persons rushed to the spot and saved his wife and children from clutches of the accused. Thereafter, an FIR was registered and the statement of petitioner No. 1 was recorded by the police. 4. It is stated that the statement of the petitioner which was recorded before the Judicial Magistrate 1st Class, Mendhar under Section 164-A of Cr.P.C. was under the pressure and undue influence of the police authorities. 5. The petitioners now submit that the story as stated in the FIR as well as the statement recorded has been at the insistence of police authorities. The petitioner No. 1 was harassed under the undue influence of the police, some political persons, who out of vengeance and personal enmity, had used her as a medium to implicate innocent persons in this FIR. 6. The petitioner No. 1 was harassed under the undue influence of the police, some political persons, who out of vengeance and personal enmity, had used her as a medium to implicate innocent persons in this FIR. 6. The petitioner No. 1 further submits that as soon as she was out of undue influence of the police, she decided to reveal the truth and approached the S.S.P., Poonch to apprise him of the truth, who however, directed the S.H.O., Police Station Mendhar for action under rules but the S.H.O. did not agree to the plea of the petitioner. The petitioners thereafter approached the Court of learned Munsiff, Mendhar through their counsel for recording of the statement but the same was also not accepted. 7. The petitioners have placed reliance on the judgment of this Court in "Showkat Ali vs. State of J&K and Ors. (561-A No. 259/2014)" decided on 04.09.2014, wherein it has been held that there is no bar against recording statement of witness more than once provided the investigating officer (I.O) after considering the evidence arrives at this conclusion. It is not the case of the petitioner that the investigating officer has to come to this conclusion. 8. The respondents in their objections have submitted that, the complainant/ petitioner No. 2-Iftikhar Ali S/o Faqar Din filed an application at Police Station, Mendhar against Raza Ahmed S/o Mohd. Rafiq, R/o Salwah and four others regarding those who had trespassed into his house and attacked his wife and children with knife and other deadly weapons and also beaten his wife with kicks and blows due to which his wife got seriously injured on 30.11.2018. 9. It is further submitted that during the course of investigation, the Investigating Officer visited on spot, prepared site plan and seized the Iron rod, blood soaked clothes and also recorded the statement of eye witnesses under Section 161 of Cr.P.C. The Investigating Officer also recorded the statement of victim i.e. petitioner No. 1-Shahnaz Kosar before the Court of learned Judicial Magistrate 1st Class, Mendhar under Section 161-A. 10. In view of the statement of eye witnesses and medical report, it was transpired that the complainant and accused were close relatives and there was an old enmity over a piece of land. The accused namely (i) Raza Ahmed S/o Mohd. Rafiq, (ii) Gulzar Ahmed S/o Bader Din, (iii) Mustafa Ahmed S/o Mohd. Alam, (iv) Mst. In view of the statement of eye witnesses and medical report, it was transpired that the complainant and accused were close relatives and there was an old enmity over a piece of land. The accused namely (i) Raza Ahmed S/o Mohd. Rafiq, (ii) Gulzar Ahmed S/o Bader Din, (iii) Mustafa Ahmed S/o Mohd. Alam, (iv) Mst. Naheed Akhter W/o Gulzar Ahmed (v) Mst. Sakeena Bi W/o Mohd. Rafeeq, were the residents of Village Salwah, Tehsil Mendhar, District Poonch who wanted to grab a piece of land forcibly and, therefore, on 30.11.2018 at around 09:00 P.M entered into the victim's house with common and criminal intention to kill her. 11. It is submitted that the investigation is complete and the offences under Sections 452, 307, 325, 323, 147 RPC stands proved against the accused, though, offences under Section 109 RPC and 04/25 Arms Act could not be established against them. The challan, however, could not be produced due to interim directions passed in CRM (M) No. 240 of 2019 filed by one of the accussed i.e. Sakina Bi W/o Mohd. Rafeeq R/o Village Salwah, Tehsil Mendhar, District Poonch. 12. The statement of petitioner No. 1 was recorded under Section 161 as well as under Section 164-A. The petitioner, after the recording of her statement, had also approached the Court of Magistrate for re-recording her statement but the same was not recorded. 13. The Supreme Court in "Jogendra Nahak & Ors. vs. State of Orissa & Ors. (2000) 1 SCC 272 " has held that Magistrate cannot take note of an individual approaching him directly with a prayer of recording his evidence in connection with any occurrence. 14. Be that as it may, the petitioner No. 1 concedes that she had knowingly given a false statement, though, under pressure. It appears that the petitioner No. 1 can be proceeded against for giving a statement which is false in her knowledge and belief but at this stage of the proceedings, it cannot be deciphered whether the earlier version of statement given by the petitioner No. 1 was truthful or the case as set up in this petition is true. The petitioner No. 1, in any case, would have an option to give statement in Court when she is produced before it as a prosecution witness. The petitioner No. 1, in any case, would have an option to give statement in Court when she is produced before it as a prosecution witness. It would be for the trial Court to consider the statement of the petitioner No. 1 and conclude whether the offences have been committed or not. The judgment in 'Showkat Ali vs. State of J&K and others' (supra) is not applicable to the case in hand in the present facts and circumstances. 15. In view of the peculiar facts and circumstances of the case, no good ground for issuing any direction is made out. There is no merit in this petition and the same is, accordingly, dismissed.