Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 98 (JK)

State v. Basharat Mehmood

2022-03-09

MOHD.AKRAM CHOWDHARY, SANJEEV KUMAR

body2022
JUDGMENT : 1. This Criminal Acquittal Appeal by the State is directed against the judgment dated 20.02.2014 passed by the learned Principal Sessions Judge, Rajouri (hereinafter referred to as the ‘trial Court’) in File No. 61/Sessions titled State vs. Basharat Mehmood whereby the respondent-accused has been acquitted of the charges under Sections 302/307/120-B/121-A RPC, 3 PSS Act. 2. Before we advert to the grounds of challenge urged by the appellant in support of the appeal, it is necessary to notice brief resume of prosecution case: On 11.03.2003 at about 7:20 pm, sound of a blast was heard at Police Post Rajouri. Om Parkash (SI) In-charge Police Post, Rajouri came to know that a blast has taken place in the Sweet Shop of Ashwani Kumar situated at City Chowk Rajouri in which a number of persons have been injured and Ashwani Kumar has died on spot. The blast has been caused by antinational elements with the aid and assistance of ISI agency of Pakistan with the intention to cause communal tension and to damage the solidarity and integrity of the Country. A case for commission of offences u/sections 302/307/120-B/121/124 RPC was registered and the investigation commenced. During investigation, the site plan was prepared and the postmortem of Ashwani Kumar was conducted. Other injured in the aforesaid incident were immediately taken to District Hospital, Rajouri. However, the injured Bodh Raj was referred to GMC, Jammu who succumbed to his injuries. Certain articles were seized from the spot and statements of the witnesses were recorded. The accused was arrested who is stated to have confessed the guilt. The accused was also got identified by the witnesses by holding a Test Identification parade. Upon completion of investigation, the police found the allegations substantiated and presented the challan against the accused in Special Designated Court under TADA/POTA at Jammu where the accused was formally charge-sheeted on 10.06.2005 for commission of offences u/sections 302/307/326/323/121/122/124-A/120-B RPC and 3-PSS Act. The accused pleaded not guilty and claimed to be tried. 3. With a view to prove the charges, the prosecution examined PWs Vijay Khajuria, Raman Kumar, Sunil Chadha, Yoga Singh, Zahoor Din, Naresh Kumar, Dinesh Kumar, Ram Lal, Shan Lal, Dr. Mushtaq Hussain, Ramesh Chander, Tilak Raj, Om Parkash and Inder Singh Jasrotia. The incriminating evidence was put to the accused and his statement under Section 342 Cr.P.C. was recorded. The accused denied all the charges. Mushtaq Hussain, Ramesh Chander, Tilak Raj, Om Parkash and Inder Singh Jasrotia. The incriminating evidence was put to the accused and his statement under Section 342 Cr.P.C. was recorded. The accused denied all the charges. However, in defence, the accused did not examine any witness. 4. It is pertinent to mention here that during the trial, the case has been transferred to the Court of Principal Sessions Judge, Rajouri (trial Court) in view of amendment made in Section 2 of the J&K Prevention and Suppression of Sabotage Act. 5. The trial Court after hearing the prosecution and the defence and evaluating the evidence that had come on record, came to the conclusion that the prosecution had failed to prove the charge against the respondent/accused beyond any shadow of reasonable doubt and as a result, acquitted him giving him the benefit of doubt. 6. Feeling aggrieved, the State is in appeal against the impugned judgment of acquittal passed in favour of the respondent. The impugned judgment has been assailed by the State, inter-alia, on the following grounds: (i) The judgment impugned is against the law and facts of the present case, as such is not sustainable in the eye of law. (ii) The trial Court has not properly appreciated the statements of the witnesses in right perspective and acquitted the respondent by passing the impugned judgment. (iii) The decision of the trial Court is based on an erroneous view of law. 7. Heard learned counsel for the appellant and perused the material on record including the impugned judgment of acquittal. 8. The present case is based upon the testimony of eye witnesses, who are PW Vijay Khajuria, PW Yoga Singh, PW Zahoor Din, PW Naresh Kumar, PW Dinesh Kumar, PW Sham Lal, PW Ramesh Chander, PW Ram Lal. The identification of the respondent by the eye witnesses is ascertained on the basis of Test Identification Parade conducted during the investigation of the case. 9. PW Vijay Khajuria, the real brother of the deceased, who was running a Dhaba at Bus Stand Rajouri, has admitted in his cross-examination that he reached on spot after hearing the sound of blast and found 10/12 people lying inside the shop in an injured condition. According to him, the occurrence has not taken place in his presence, nor he was witness to it. According to him, the occurrence has not taken place in his presence, nor he was witness to it. Likewise, PW Yoga Singh, another eye witness, who was an employee in the Sweet Shop, has not seen the accused in the shop prior to the occurrence or at the time of occurrence. PW Zahoor Din, another employee in a Medical shop, who is stated to have suffered injuries in the said blast, has also not seen the accused at the place of occurrence prior to or at the time of occurrence. Similarly PW Naresh Kumar, another employee in the shop of the deceased, has categorically stated in the cross-examination that he has not seen the accused visiting the shop of the deceased. PW Dinesh Kumar, who also suffered injuries in the blast, has not seen the accused visiting the shop and the place of occurrence prior to the incident. PW Sham Lal who is also stated to have suffered injuries in the blast has also not shown the presence of the accused in the said shop prior to the occurrence or at the time of occurrence. PW Ramesh Chander who was also an employee in the shop of the deceased in his statement has stated that about 200/300 customers visit the shop in a day and he cannot remember all of them as he remains busy in preparation of sweets. The star witness namely Ram Lal who is stated to have lost his both arms in the blast has stated in his cross-examination that prior to visiting the shop by the accused, a number of customers visited the shop and occupied the seat which was later on occupied by the accused and he is not sure whether the bag containing the explosive was left over in the shop by the accused. 10. From the testimonies of the aforesaid eye witnesses, the prosecution has failed to establish the presence of the accused at the place of occurrence immediately before the incident by leading any cogent and convincing evidence. 11. With regard to establish the complicity of accused in the commission of crime, the prosecution has got the Test Identification Parade of the accused conducted during the investigation of the case. 11. With regard to establish the complicity of accused in the commission of crime, the prosecution has got the Test Identification Parade of the accused conducted during the investigation of the case. The object behind holding test identification parade is simply to test the memory of the witnesses who claim themselves to have seen the accused at the time of committing offence and to enable the prosecution to decide whether all or any of them could be cited as eye witnesses of the incident. In this case, it is also to be seen that whether the Test Identification Parade was held properly and how much weightage should be given to it. In this case, in the identification parade form, PWs Ramesh Chander, Vinay Kumar and Ram Lal were cited as witnesses. Therefore, before placing any reliance on the Test Identification Parade, the testimony of these witnesses are required to be analysed in order to ascertain their veracity and credibility. 12. From the perusal of testimony of aforesaid witnesses, it is revealed that none of the witnesses disclosed anything about the appearance of the accused in the police during the investigation of the case. It is further revealed that the police wanted the witnesses to identify the accused in the Test Identification. 13. Admittedly, the accused was taken out of the lock up while being handcuffed by the Investigating Officer at the time of Test Identification Parade and was made to mix up with other innocent persons for identification parade. The handcuffing of the accused would definitely give an indication to the witnesses that he is the person who was required to be identified by them. 14. Apart from the above, PW Tilak Raj Executive Magistrate, has testified that he has no knowledge about the procedure to be followed in conducting the Test-Identification Parade. According to him, the Form meant for identification parade has already been prepared by the police and he has only endorsed his signatures on it. In such circumstances, the Test Identification parade cannot be said to have been conducted after taking due precautions by the Executive Magistrate and the Investigation Agency. Therefore, no reliance can be placed on it. 15. We have carefully gone through the impugned judgment and the evidence recorded. In such circumstances, the Test Identification parade cannot be said to have been conducted after taking due precautions by the Executive Magistrate and the Investigation Agency. Therefore, no reliance can be placed on it. 15. We have carefully gone through the impugned judgment and the evidence recorded. We do not find any illegality or infirmity with the conclusions arrived at by the trial Court on the basis of evaluation of evidence on record. We, therefore, concur with the conclusion of the trial Court that the prosecution has not been able to prove the guilt of the respondent beyond any shadow of reasonable doubt and, therefore, the respondent is entitled to be acquitted by giving 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. 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. 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.” 16. In view of the circumscribed scope of interference with the judgment of acquittal, we are not inclined to interfere with the impugned judgment. We, accordingly, dismiss this appeal and uphold the judgment of acquittal passed by the learned trial Court.