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2023 DIGILAW 132 (JK)

Mohd. Rafq v. State of J&K

2023-04-06

RAJNESH OSWAL

body2023
JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 15.01.2008 and order of sentence dated 16.01.2008 passed by the Additional Sessions Judge, Ramban (hereinafter to be referred as "the trial court") whereby the appellant has been convicted for commission of offence under section 387 RPC and sentenced to undergo imprisonment of 2 years and to pay a fine of Rs. 3,000/-. In default of making the payment of fine, the appellant has been further ordered to undergo imprisonment for one month. 2. The judgment of conviction and order of sentence have been assailed by the appellant on the ground that the learned trial court has not properly appreciated the evidence and has not taken into consideration the delay of seven days in lodging the FIR. It is also stated that there was no evidence before the trial court against the appellant for having used any weapon for extorting any money from the complainant and as such, no conviction could have been ordered under section 387 RPC. 3. Mr. Qadri Towkeer Nazir, learned counsel for the appellant vehemently argued that there are material contradictions in the statement of the complainant as well as his wife and the learned trial court has erred by relying upon the statement of PW-5 Mohd. Hanief, who if prosecution story is to be believed, was the accomplice of the appellant and he was not arrayed as an accused, therefore, his statement could not have been relied upon by the prosecution. He further argued that explanation furnished by the complainant for the seven days' delay in lodging FIR was false as per his own statement. 4. Per contra, Mr. Eishan Dadhichi, learned Government Advocate, learned counsel for the respondent vehemently argued that the learned trial court has rightly appreciated the evidence and the delay of seven days in lodging the FIR has been satisfactorily explained by the prosecution. He further argued that the evidence of the complainant is duly corroborated by the other evidence and the prosecution has successfully proved the case against the appellant. There is no illegality in the judgment of conviction recorded by the trial court. 5. Heard and perused the record. Prosecution story 6. FIR bearing No. 5/1998, was registered on 10.01.1998 at 1530 hours for commission of offences under sections 387, 420 RPC and 3/25 Arms Act. There is no illegality in the judgment of conviction recorded by the trial court. 5. Heard and perused the record. Prosecution story 6. FIR bearing No. 5/1998, was registered on 10.01.1998 at 1530 hours for commission of offences under sections 387, 420 RPC and 3/25 Arms Act. The application written in Urdu (Ext PW 1/1) was filed with In-charge Police Post Ramsoo by Mohd. Hussain Bali wherein it was stated that on 03.01.1998 at 7 P.M. in the evening, two persons armed with rifles entered into his house. They were masked and at gun point, demanded money from him. Thereafter, scuffle took place between them. One gunman caught his arm and they continued to scuffle for twenty minutes. He suffered injuries at his face from the barrel of the gun. During scuffle, the mask of one of the gunman fell on ground and he was identified as Mohd. Rafiq S/o Mohd. Sultan. The second person could not be identified. On the next day, he lodged the report at Army Camp and at that time, his father became unconscious due to fear and he took his father to Ramban for getting medicines and it resulted in to the delay in lodging report. The investigation was commenced. During the investigation, the Investigating Officer came to the conclusion that the appellant forcibly took one Mohd. Hanief S/o Abdul Rahim Lohar R/o Pogha to the house of the complainant for extortion on 03.01.1998. Pursuant to the disclosure of the appellant, two 12 bore guns were recovered, which were stolen from the houses of Ahmed Ullah Wani and Mohd Ibrahim Haji. These weapons were used in the commission of above mentioned offences. The charge sheet for commission of offences under sections 387, 420 RPC and 3/25 Arms Act was laid before JMIC, Banihal on 31.12.1998. The learned Magistrate without realizing that the case was triable by Sessions court, charged the appellant and continued with the trial court and it was only, when the case was fixed for examination of the appellant under section 342 Cr.P.C., the learned Magistrate realized the mistake and committed the case to the learned trial court vide order dated 15.03.2004. 7. The appellant was charged for commission of offences under sections 387, 420 RPC and 3/25 Arms Act vide order dated 20.07.2004. 7. The appellant was charged for commission of offences under sections 387, 420 RPC and 3/25 Arms Act vide order dated 20.07.2004. The prosecution had cited 11 witnesses out of which prosecution examined 05 witnesses, five witnesses could not be examined as they were dead and one witness was not examined by the prosecution. 8. The appellant examined two witnesses in his defence and the learned trial court after considering the evidence brought on record by the prosecution as well as the defence and hearing both the parties, convicted and sentenced the appellant as mentioned above. 9. Since this is a conviction appeal, the evidence is required to be appreciated to find out as to whether the learned trial court has rightly appreciated the evidence and further that the appellant can be convicted in light of evidence brought on record by the prosecution. This exercise can be undertaken only, if this Court takes note of the relevant portions of the evidence led by the parties. Prosecution evidence 10. Mohd. Hussain PW-1 stated that he knows the accused. On 03.01.1998, he was at his house at Poghal along with his wife, children and father. He was at the upper storey of the house and at around 7 in the evening, the appellant entered into his house and confirmed about his house from his father. The appellant was accompanied with other person, who remained outside. His father told him that he (witness) was offering namaz. He came out in the verendah of upper storey and at that time, the appellant was standing with the gate of his house. He (appellant) asked him to come down. The appellant and his associate were having 12 bore guns with them. The appellant caught his arm and asked about the month. He replied that it was a month of fasting and then the accused demanding donation. He was wearing a mask. He pulled down the mask from the face of the appellant and recognized him. After being recognized, the appellant sometimes pointed his gun at his forehead and sometimes at his chest. During that period, his wife continued to plead with the appellant to leave him. The appellant was demanding money and when they told that they were not having money and asked him to take away the livestock, the appellant replied in local dialect as to what was to be done with the livestock. During that period, his wife continued to plead with the appellant to leave him. The appellant was demanding money and when they told that they were not having money and asked him to take away the livestock, the appellant replied in local dialect as to what was to be done with the livestock. Thereafter, the appellant fled away. At 5:00 in the morning, he went to the Army Camp Poghal and informed them about the occurrence. Thereafter, he went to Ukharal to meet the Army Major. When he was at Army Camp, after five minutes, Mohd. Hanief came there and made a statement before the Army. From Ukhral, he went to his house at Poghal. His father fell ill on that day and he was taken to Ramban for treatment where he remained with him for 4-5 days. Thereafter, he reported the matter to the Ramsoo Police Post and filed the complaint (ExtPW-1/1). His statement was recorded by the Police and Police also visited the spot. He identified the guns in the court. During cross-examination, he expressed ignorance about the place and time when the guns were seized by the Police. He had seen these guns in the Police Post, Ramsoo. He expressed ignorance about the seizure of the guns by the Police. He had given the reasons for delay in lodging the FIR (Ext PW 1/1). The complaint was prepared at Police Post, Ramsoo. He had not mentioned in Ext PW 1/1 that he had remained with his father for 4-5 days at Ramban. He had first given his report at Police Post, Ramsoo and then took his father to Ramban for treatment. The occurrence took place on 03.01.1998 whereas he lodged report at 10.01.1998. He had prepared the report at his home and submitted to the Police Chowki. He also made a statement in the court at Banihal. He identified the accused only when the mask was removed. He did not recognize the accused from his voice. In further cross examination, he stated that the occurrence took place at 7:20 in the evening and he went to the Army in the morning at 9.00. Police visited place of occurrence on 11.01.1998. His house is adjacent to the houses of Abdul Rahim Katoch, Bashir Ahmed Bali and Abdul Aziz Bali. In further cross examination, he stated that the occurrence took place at 7:20 in the evening and he went to the Army in the morning at 9.00. Police visited place of occurrence on 11.01.1998. His house is adjacent to the houses of Abdul Rahim Katoch, Bashir Ahmed Bali and Abdul Aziz Bali. The accused had entered his house and he recognized him due to light in the house when his mask fell down because his (witness) hand touched the mask. When he took off the mask of the appellant, then he recognized him. He had lodged the report in Police Post, Ramsoo on 06.01.1998 and the Police visited the place of occurrence on 11.01.1998. 11. PW Fazi Begum recognized the accused, who had come to their home at 7:20 in the evening. He was accompanied by one more person. Accused was demanding one lac rupees from her. She told the accused that she did not have one lac rupees but the livestock. The accused fired one shot while going out. Then villagers came on spot. She recognized the accused, when he was demanding the money. The accused had come as a militant. Her daughters and husband were also there. Her daughters hid themselves and she thought that he had come to kill them. In cross-examination, she stated that she had earlier made statement in the court at Banihal. She stated that she recognized the accused only when the accused told her that what he would do with the cattle. The accused was masked but she recognized him from his voice. This is wrong that she recognized the accused as Rafiq when the mask was removed. She did not recognize the other person because that person was wearing mask. Scuffle took place on spot. 12. PW Mohd. Ramzan Bali stated that on 03.01.1998 at 7 P.M., he heard the noise of Master Mohd. Hussain. He went on spot. The accused was not there. He was declared hostile and in cross examination by APP, no incriminating material could be extracted from his testimony. 13. PW Mohd. Hanief stated that he knows the accused. On 03.01.1998, during the ramzan period, he came out of his house for washing his hands. The appellant Mohd. Rafiq caught him and asked him to accompany him to the house of Master Mohd. Hussain. 13. PW Mohd. Hanief stated that he knows the accused. On 03.01.1998, during the ramzan period, he came out of his house for washing his hands. The appellant Mohd. Rafiq caught him and asked him to accompany him to the house of Master Mohd. Hussain. When he refused and asked him that he cannot see in the night, the appellant compelled him to accompany him by saying that if he refused, he would shoot him. The appellant was having two rifles. He gave one rifle to him. While they were going to the house of Master Mohd. Hussain, the appellant instructed him not to talk to the complainant or any other person. When they reached the house of Mohd. Hussain, the accused went towards the gate of the house of Master Mohd. Hussain. He was asked to stand on a side. The appellant asked Mohd. Hussain to come out and father of Mohd. Hussain came out. Father of the complainant stated that Mohd. Hussain was offering namaz at upper storey. The Master saw from the window of the first storey and the appellant asked him that it was the month of ramzan and he must give some donation. The appellant was masked. The Master asked the appellant to sit inside but he refused. Scuffle took place between the master and the appellant and the mask of the appellant fell down and master identified the appellant. The children of the master raised noise and the appellant ran away. The Army Camp was at Poghal. He told the Army about the occurrence. The first weapon was with the appellant at the time of occurrence. Master Mohd. Hussain was also in the Army Camp along with him. Both the weapons were marked as Mark A and Mark A1. In cross examination, he stated that in this case, he had made the statement in the Munsiff court at Banihal. When he went to the Army Camp in the morning, he was accompanied by Mohd. Younis Bhat. The house of the complainant was surrounded with the houses of Abdul Rahim, Mohd. Ramzan, Mohd. Rafiq, Abdul Aziz, Mohd. Sharief and Alaf Din. In case hue and cry is raised in the house of the complainant, it would be audible to the residents of these houses. He had not told any person during the night that he was forcibly taken by the appellant. Ramzan, Mohd. Rafiq, Abdul Aziz, Mohd. Sharief and Alaf Din. In case hue and cry is raised in the house of the complainant, it would be audible to the residents of these houses. He had not told any person during the night that he was forcibly taken by the appellant. He had not seen PW Mohd. Ramzan on spot at the time of occurrence. It takes 20 minutes on foot to reach the house of the complainant from his house. He had not disclosed the incident to any person residing in 20 to 25 houses during his journey to the house of the complainant, as he apprehended that the accused might kill him. He was also having a gun. When he came back from the house of Mohd Hussain even then he did not tell about the occurrence to anyone. 14. PW Roshan Din stated that the accused was not known to him and he further expressed his ignorance about the occurrence. He was declared hostile and in cross examination by APP, no incriminating material could be extracted from him. Defence Evidence 15. DW Abdul Rashid stated that he knows both the parties and they were having a land dispute between them for the last 10 to 12 years. There was rumour of theft in the village and the appellant was falsely implicated. The complainant informed the Army and before Army, the accused was found innocent. The case has been framed because of rivalry. During cross-examination, he stated that he is the neighbor of both the complainant and the accused. The complainant was his maternal uncle. The accused was arrested by the Police. 16. DW-2 Abdul Aziz stated that he knows both the complainant and the accused. The accused was a simple person. Both were having land dispute. The false case has been registered against the accused. During cross-examination, he stated that he resided at a distance of 3 kms from the house of the accused. His daughter was married in the village of the accused. There was militancy in the area. The complainant was a good person having respect in the society. Appreciation 17. The learned trial court while convicting the appellant for commission of offence under section 387 RPC has relied upon the statement of witnesses PW-1 Mohd. Hussain, PW-3 Fazi Begum and PW-5 Mohd. Hanief. There was militancy in the area. The complainant was a good person having respect in the society. Appreciation 17. The learned trial court while convicting the appellant for commission of offence under section 387 RPC has relied upon the statement of witnesses PW-1 Mohd. Hussain, PW-3 Fazi Begum and PW-5 Mohd. Hanief. It was contended by the learned counsel for the appellant that PW-5 Mohd. Haneef was in fact accomplice and without making him approver, he could not have been examined as witness because if the prosecution story is believed then he was co-accused of the appellant. It needs to be noted that Section 133 of the Evidence Act provides that the accomplice is a competent witness against accused person and if his evidence is found to be creditworthy by the court, the accused can be convicted on the basis of said evidence. At the same time illustration (b) to Section 114 of the Evidence Act provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars. The Hon'ble Supreme court in Laxmipat Choraria v. State of Maharashtra, AIR 1968 SC 938 has observed that competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in the case. This principle of law was reiterated by the Hon'ble Supreme Court in Chandran v. State of Kerala, (2011) 5 SCC 161 . However, the contradiction between these two provisions i.e. Section 133 and illustration (b) to Section 114 of the Evidence Act has been ironed out by the Hon'ble Supreme court in Somasundaram @ Somu v. State Rep. by the Deputy Commissioner of Police, (2020) 7 SCC 722 , wherein it was held as under:- "77. To summarise, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows: the combined result of Section 133 read with Illustration (b) to Section 114 of the Evidence Act is that the courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused. 78. As laid down by this Court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word "ordinarily" inspired by the statement of the law in para 4 in K. Hashim [ (2005) 1 SCC 237 ] wherein this Court did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence." 18. The ratio as it emerges from the judgment (supra) is that testimony of an accomplice in respect of material particulars though not all, must be corroborated. In view of this settled position of law, there is no force in the contention raised by the learned counsel for the appellant that the accomplice of the accused i.e. PW Mohd. Haneef cannot be a competent witness. It needs to be noted that Investigating Officer has not been examined in this case because of the reason of his demise. It is not forth coming from the prosecution case as to how PW-5 Mohd. Hanief was arrayed as witness where as the FIR was registered against the appellant and one unknown person. Haneef cannot be a competent witness. It needs to be noted that Investigating Officer has not been examined in this case because of the reason of his demise. It is not forth coming from the prosecution case as to how PW-5 Mohd. Hanief was arrayed as witness where as the FIR was registered against the appellant and one unknown person. Also no identification of PW Mohd. Haneef being associate of the appellant was conducted by the Investigating Officer. As such, how he (PW Mohd. Haneef) was arrayed as witness remains a mystery. Both PWs Mohd. Hussain and Mst. Fazi have categorically stated that the other associate of the appellant could not be identified as he was masked. Even PW- Mohd. Hussain has no where deposed that any statement was made by PW Mohd. Haneef in his presence, as he has simply stated that when he went to Army at Pogal, one person namely Mohd. Haneef came there and made statement to the Army. He has not stated about the details of the statement made by Mohd. Haneef. Further Investigating Officer during the course of his investigation has not associated any Army official with regard to the statement made by PW Mohd. Haneef. In light of such evidence, it cannot be held with certainty that PW Mohd. Haneef was an accomplice. This court as such, is of the considered view that the learned trial court has wrongly relied upon the evidence of PW Mohd. Haneef for convicting the appellant. 19. It was also contended by the learned counsel for the appellant that the delay in lodging FIR has been falsely explained by the prosecution. A perusal of FIR reveals that the same was lodged on 10.01.1998 at 15:30 P.M. for commission of offences under sections 3/25 Arms Act and 387/420 RPC on the basis of application (ExPW-1/1) submitted by PW-1 Mohd. Hussain with Police Post, Ramsoo on 10.01.1998. In the ExtPW-1/1, the PW-1 Mohd. Hussain has stated that next day after the occurrence, he went to Army Camp and reported about the occurrence. As his father was frightened and got unconscious, so he took his father to Ramban for medication. The PW-1 Mohd. Hussain stated this fact to explain the delay in reporting the matter to Police. In the ExtPW-1/1, the PW-1 Mohd. Hussain has stated that next day after the occurrence, he went to Army Camp and reported about the occurrence. As his father was frightened and got unconscious, so he took his father to Ramban for medication. The PW-1 Mohd. Hussain stated this fact to explain the delay in reporting the matter to Police. A perusal of his statement before the court would reveal that the next day after the occurrence, he went to Army Camp and thereafter went to Ukhral to meet Major of the Army. He came back to Pogal and then his father fell ill and he took him to Ramban for treatment, where he remained there for 4-5 days. He no where deposed in the court that his father was frightened and he became unconscious. In his cross examination he stated that he reported the matter to Police Post, Ramsoo on 06.01.1998. These contradictions in the evidence of the PW-1 Mohd. Hussain are irreconcilable. No one from Army has been examined by the Investigating Officer with regard to information provided by PW-1 Mohd. Hussain about the occurrence. It becomes evident that PW-1 has furnished wrong explanation for the delay in lodging FIR. Further it is found that there are material contradictions in the statements of husband and wife i.e. PW-1 Mohd. Hussain and PW-2 Mst Fazi Begum. PW-1 Mohd. Hussain has stated that the accused was wearing mask and on pulling the mask, the accused was identified. Accused was sometimes pointing gun towards his forehead and sometimes on his chest and during that period, his wife continued to plead the appellant to leave her husband. This story is missing in application (ExtPW-1/1). Rather in ExtPW-1/1, he had stated that scuffle took place between the accused and him, he received injury at his face and mask of the accused fell down. In deposition before the court, PW-1 stated that mask was pulled then he identified the appellant, whereas in ExtPW-1/1, he stated that during scuffle mask fell down. 20. So far as PW-2 Mst Fazi Begum is concerned, she has stated that accused demanded Rupees one lac from her and also that he fired a shot. This is altogether new story vis-a-vis the story projected by the prosecution. The statement made by PW-2 Mst. Fazi Begum is contrary to that of PW-1 Mohd. 20. So far as PW-2 Mst Fazi Begum is concerned, she has stated that accused demanded Rupees one lac from her and also that he fired a shot. This is altogether new story vis-a-vis the story projected by the prosecution. The statement made by PW-2 Mst. Fazi Begum is contrary to that of PW-1 Mohd. Hussain and the nature of contradictions as well as inconsistencies in their testimonies raise a serious doubt about the truth of prosecution story. 21. The cardinal principle of criminal jurisprudence reiterated by the Hon'ble Apex Court time and again in its numerous decisions including the latest one Ram Niwas v. State of Haryana, 2022 SCC OnLine SC 1007, is that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. In light of the evidence discussed above, the appellant could not have been convicted by the trial court as the prosecution had failed to prove the guilt of the appellant beyond reasonable doubt. 22. This Court has examined the judgment passed by the learned trial court and finds that the learned trial court has delivered the judgment on the basis of guesswork which has no role to play in criminal jurisprudence while determining the guilt of the accused. 23. In view of all what has been discussed above, this Court is of the considered view that the learned trial court has not rightly appreciated the evidence and has convicted the appellant erroneously. Accordingly, the judgment of conviction dated 15.01.2008 and order of sentence dated 16.01.2008 passed by the Additional Sessions Judge, Ramban in charge-sheet titled "State v. Mohd. Hussain" arising out of FIR No. 05/1998 of P/S Banihal, are set aside. The appellant is acquitted and the charge-sheet is dismissed. The bail bonds stand discharged. 24. Record of the trial court be sent back forthwith.