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2023 DIGILAW 223 (JK)

State of J&K v. Khurshid Ahmad Ganie

2023-06-02

MOHAN LAL

body2023
JUDGMENT : MOHAN LAL, J. 1. Instant Criminal Acquittal Appeal is directed by the appellant against the judgment and order dated 17.07.2013, (impugned herein) rendered by the Court of learned Principal Sessions Judge Bandipora, Kashmir (for short “trial court”) in case FIR No. 230/2010 of Police Station Bandipora for commission of offences under sections 366/511 RPC in file no. 03/S whereby respondent/accused has been acquitted of the charges leveled against him. 2. Being aggrieved of and dissatisfied with the impugned judgment dated 17.07.2013, appellant has questioned its legality, propriety and correctness and has sought its setting aside/quashment, and has appealed for the conviction of the respondent/accused on the following grounds: (i) that the trial court has recorded the statements of only 4 prosecution witnesses viz. PW-1 Nazir Ahmad (complainant), PW-2 Mst. Rehana (prosecutrix/victim), PW-3 Farhat Anjum (eyewitness) & PW-4 Mohammad Khalil, (Head Constable/IO). (ii) that the trial court has dismissed the prosecution case in hot haste holding that the prosecution has miserably failed to prove its case beyond reasonable doubt, the judgment of the acquittal is against facts and circumstances. (iii) that the trial court has recorded acquittal of respondent/accused merely on the contradictions found in the statement of the prosecution witnesses and also on the basis that they are related to each other as no independent evidence has been produced, the infirmities/contradictions which don't go to the core of the case and have been ignored by the trial court which has lost sight of its salutary principle of law and has reached to the wrong conclusion that the prosecution case is full of contradictions. (iv) that the prosecution evidence is of corroborative in nature which has not been appreciate by the trial court and has wrongly recorded the judgment of the acquittal. 3. In terms of this Court order dated 02.06.2022, the instant appeal stands admitted. Learned counsel for the appellant while reiterating the grounds urged in the memo of the acquittal appeal, has vehemently sought setting aside of impugned judgment by canvassing arguments, that the trial court has not rightly appreciated the evidence led by the prosecution and has come to a wrong conclusion of acquittal in favour of the respondent/accused. 4. Learned counsel for the appellant while reiterating the grounds urged in the memo of the acquittal appeal, has vehemently sought setting aside of impugned judgment by canvassing arguments, that the trial court has not rightly appreciated the evidence led by the prosecution and has come to a wrong conclusion of acquittal in favour of the respondent/accused. 4. Learned counsel for the respondent/accused has supported the judgment of the acquittal by strenuously arguing, that the respondent/accused as per prosecution evidence has fled away from the scene of the crime, as such, offence punishable under sections 366/511 RPC has not been proved against him. It is argued, that statements of complainant, victim and eye witness recorded by the trial court have not connected the respondent/accused for the commission of offences attributed against him, the alleged occurrence is on 05.10.2010 and FIR has been lodged on 06.10.2010 while as the statement of the victim/prosecutrix in terms of Section 164-A, Cr.P.C. has been recorded after the delay of more than 90 days and no explanation has been tendered by the IO who has remained unexamined whereby great prejudice has been caused to the respondent/accused, the trial court has rightly acquitted the respondent/accused from charges, as such, appeal filed by the appellant/state deserves to be dismissed. 5. To prove the guilt of accused, prosecution has recorded the depositions of only four (4) witnesses viz. (i) Nazir Ahmad Lone (PW-1 Complainant), (ii) Ms. Rehana (PW-2 victim/prosecutrix), (iii) Ms. Farhat Anjum (PW-3 Eyewitness) and (iv) H. Ct. Mohammad Khalil (PW-4). In rebuttal, to disprove the case of prosecution, respondent/accused has not examined any witness in its defence. The prosecution has examined as many four witnesses out of listed five witnesses as under: PW Name of Witness Role 1. Nazir Ahmad Lone Complainant 2. Ms. Rehana Prosecutrix/Victim 3. Ms. Farhat Anjum Eyewitness 4. Mohammad Khalil Head Constable/IO 6. Before coming to the conclusion, whether prosecution has successfully substantiated charges against respondent/accused beyond hilt, I find it pertinent to give a brief presume of the evidence tendered by the prosecution witnesses before the trial court. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under: PW-1 Nazir Ahmad Lone has deposed that he knows the accused and on 5th of Oct., 2010 occurrence took place. On the day of occurrence he was alone at his house. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under: PW-1 Nazir Ahmad Lone has deposed that he knows the accused and on 5th of Oct., 2010 occurrence took place. On the day of occurrence he was alone at his house. PW-2 Rehana came to his house and told that a boy namely Khurshid Ahmad came near the B.Ed. College and tried to kidnap her, and on 6th of Oct., 2010 he lodged report in the police station. Mst. Rehana had alone gone to B.Ed. College whereas PW-3 Mst. Farhat was waiting for her. Accused came in a vehicle and tried to kidnap her however he failed to kidnap her. Before this occurrence accused also tried to kidnap her but failed. She lodged a case against accused which was running. Accused used to come to the house of his aunt at Onagam. He did not know why the accused is doing such activities. Report for lodging the FIR is correct and is exhibited Ext.P-1. In cross-examination he deposed that he is Middle Pass and is running a shop. He deposed that on the day of occurrence he was in his shop however he has no personal knowledge with regard to the occurrence. He was knowing the accused as the relative of the accused are residing in his neighborhood. He lodged the report on the suggestion given to him by PW-2. He do not know whether accused want to marry with PW-2. He has no relation with accused. Police did not visit on spot in his presence. With regard to the earlier occurrence he has no knowledge. He deposed that there is some dispute with the relative of the accused. PW-2 Mst. Rehana deposed that she knows accused and on 5th of Oct., 2010 occurrence took place when she was doing B.Ed. In Mehboob ul Alam College and at about 2:30 p.m. she was coming back home and her cousin sister namely Anjum was waiting for her on the road however she was somewhat at a distance from her. A vehicle came from Onagam, accused open the door of the vehicle and tried to board her. Then her sister raised noise due to which accused fled away from the spot. She do not know the number of the vehicle. A vehicle came from Onagam, accused open the door of the vehicle and tried to board her. Then her sister raised noise due to which accused fled away from the spot. She do not know the number of the vehicle. She deposed that when they reached home she narrated the whole occurrence to her family, however father was not present in the house then her uncle Nazir Ahmad contacted with her father on phone and then her uncle lodged the report. Accused earlier as well attacked upon her in the year, 2010 near Jahangir Bakery Bandipora, accused often was following her and asked her that if she will not marry her he would kidnap her. Police visited at her residence and recorded her statement. Her statement under section 164-A Cr.P.C. was recorded. In cross-examination she deposed that she is knowing the accused for the last one year and even before the occurrence. Relative of the accused are her neighbors that is why she is knowing the accused. She do not know whether accused is driver or not. She never boarded in the vehicle of the accused. Occurrence took place on main road near Mehboob ul Alam Chowk. Many vehicles were moving on the road. Near the place of occurrence there is an residential area. Accused only opened the door of the vehicle however he did not come on the road. Police did not visit the spot nor she herself visited the police. Her uncle was also not present on spot at the time of occurrence. She has no personal grievance with the accused however accused want to marry with her. She did not contracted marriage with accused. Accused offer her to marry near Jahangir Bakery. On this she lodged the case against accused. Accused is still offering her for marriage. On this she lodged the report against accused. It is correct that if the major girl do not want to marry with any one she cannot be forced. PW-3 Farhat Anjum deposed that she knows accused and occurrence took place on 5th of Oct., 2010, on the day of occurrence she had gone to College, her sister Mst. Rehana was accompanying her and they both were coming back. She was reading in PUC in Govt. Higher Secondary School when they were coming back at Kaloosa. PW-3 Farhat Anjum deposed that she knows accused and occurrence took place on 5th of Oct., 2010, on the day of occurrence she had gone to College, her sister Mst. Rehana was accompanying her and they both were coming back. She was reading in PUC in Govt. Higher Secondary School when they were coming back at Kaloosa. Accused came in a sumo but she did know how many persons were in the vehicle. Again stated that there were three persons in the vehicle. A person came down from the vehicle and caught hand of Rehana PW-2 and tried to board her. On this they raised noise due to which accused fled away from the spot. She deposed that had they not been raised the noise accused would have kidnapped Mst. Rehana. The relatives of the accused are their neighbors. Accused also earlier had threatened them in the Bazar as such they lodged the report against accused. Her statement was recorded by police. Report was lodged by his uncle. In cross-examination she deposed that even before the occurrence she saw Rehana talking with the accused because there were love affairs between Rehana and accused. It is correct that accused want to marry Mst. Rehana however relative of Mst. Rehana are not willing. It is not correct that if her relatives would have allowed Mst. Rehana to marry then this occurrence would have not occurred. It is also correct that unless the will of the major girl nobody can kidnap her. Earlier they also complained their families members regarding activities of the accused however their family members were saying that accused will mend his behavior. It was closing time of the College when occurrence took place and at that time many students were passing through the road however she and PW-2 were moving alone. Occurrence took place on the crossing of road. There is no house near the place of occurrence. Nobody else was moving there. His uncle was also not there on spot. There is no dispute between them and the relatives of the accused. PW-4. H. Ct. Mohd. Khalil deposed that he know the accused and on 06.10.2010 Nazir Ahmad Ganie complainant lodged a written report on which FIR was lodged. He was assigned with the investigation of the case. He visited at the Gate of Mehboob ul Alam College and PW-1 identified the place. Mst. PW-4. H. Ct. Mohd. Khalil deposed that he know the accused and on 06.10.2010 Nazir Ahmad Ganie complainant lodged a written report on which FIR was lodged. He was assigned with the investigation of the case. He visited at the Gate of Mehboob ul Alam College and PW-1 identified the place. Mst. Rehana was coming back from the college along with her sister Mst. Anjum whereas accused tried to kidnap Mst. Rehana. He prepared the site map which is exhibited Expw-4. He recorded statement of witnesses and arrested the accused. There was no evidence for offence under section 109 RPC as such was deleted. In cross-examination he deposed that he conducted the investigation as per the version of the complainant. He has not seized any article or any vehicle. He recorded the statement of witnesses on 06.06.2010 all the witnesses are related to each other. There was no other witness on the spot. 7. I have heard the learned GA for appellant/state and learned counsel for respondent. I have taken in-depth perusal of prosecution evidence and bestowed my thoughtful consideration to the material aspects involved in the case. 8. It is apt to reiterate here, that the allegations against respondent/accused are, that on 06.10.2010 case FIR No. 230/2010 for commission of offences u/ss 366/511 RPC was registered in Police Station Bandipora to the effect, that when on 05.10.2010 PW-2 (Mst. Rehana) alongwith her sister PW-3 (Farhat Anjum) were coming back from Mehboob-ul-Alam B.Ed. College Bandipora, respondent/accused tried to kidnap PW-2 (Mst. Rehana), whereas, PW-3 (Farhat Anjum) raised voice and accused fled away. PW-1 (Nazir Ahmad Lone) has lodged FIR only on the instructions of PW-2 (Mst. Rehana) in regard to her kidnapping. PW-2 (Mst. Rehana) in her examination-in-chief before the trial Court has led evidence that on 05.10.2010 when she alongwith her sister Farhat Anjum (PW-3) were coming back to their home from Mehboob-ul-Alam B.Ed. College, at 2:30 p.m., accused came in vehicle from Onagam opened the door of the vehicle and tried to board her. In her cross-examination, in the same breath, she has undergone huge somersault by deposing that accused only opened the door of vehicle and did not come on road, therefore she has not withstood the test of cross-examination. PW-3 (Farhat Anjum) is the sister of PW-2 Mst. In her cross-examination, in the same breath, she has undergone huge somersault by deposing that accused only opened the door of vehicle and did not come on road, therefore she has not withstood the test of cross-examination. PW-3 (Farhat Anjum) is the sister of PW-2 Mst. Rehana and at the relevant time of occurrence she was accompanying her, therefore, she is also the eye witness to the occurrence. She has led highly contradictory version to that of PW-2 Mst. Rehana by deposing that one person came down from the vehicle caught hold of Mst. Rehana and tried to board her in the vehicle, but the said fact has been denied by victim/prosecutrix PW-2 Mst. Rehana. The testimonies of PWs-2 and 3 Mst. Rehana and Farhat Anjum have suffered huge and glaring contradictions which go to the root of the case, thereby, making their depositions highly doubtful and unworthy of reliance. In the case in hand, PW-2 victim/prosecutrix and PW-3 Farhat Anjum both eye witnesses to the occurrence, have narrated different versions regarding the kidnapping of victim/prosecutrix, and when the eye witnesses account is highly contradictory, it casts serious doubt regarding the creditworthiness and reliability of the prosecution witnesses. Therefore, by the depositions of PWs-2 and 3 it clearly transpires that respondent/accused did not make any attempt to kidnap victim/prosecutrix PW-2 Mst. Rehana. Non-examination of IO (PW-4 Mohammad Khalil Head Constable) has also left the prosecution case in lurch. There is also huge delay of more than 90 days in recording the statement of PW-2 victim/prosecutrix (Mst. Rehana) which also causes a serious infirmity in the prosecution case, makes it highly concocted and doubtful, and once a doubt is created, the benefit has to be imparted to the accused person entailing his acquittal. 9. On the basis of the evidence led by the prosecution witnesses aforesaid, there is no legal evidence on record to prove that the respondent/accused had tried to kidnap/abduct PW-2 Mst. Rehana, as the evidence of the eye-witnesses PW-2 and PW-3 (Farhat Anjum) are highly contradictory to each other. The direct evidence of PW-2 and 3 are not sufficient/strong to involve the respondent/accused in commission of the crime. The witnesses examined by the prosecution have not been able to put forth in their evidence a ring of truth so as to inspire confidence in the mind of this Court to convict the accused. The direct evidence of PW-2 and 3 are not sufficient/strong to involve the respondent/accused in commission of the crime. The witnesses examined by the prosecution have not been able to put forth in their evidence a ring of truth so as to inspire confidence in the mind of this Court to convict the accused. Evidence of prosecution witnesses is, therefore, qualitatively and quantitatively insufficient to bring whom the guilt of respondent/accused. This renders the entire story of the prosecution unbelievable in the manner projected. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, lacking in integrity, does not prove the connecting link between respondent/accused and commission of offences. The whole case of the prosecution therefore, becomes doubtful. 10. For the forgoing reasons and discussions, I am of the considered view, that prosecution has miserably failed to prove the guilt of the respondent/accused for commission of offences u/ss 366/511 RPC beyond reasonable doubt. Criminal Acquittal Appeal is, therefore, disallowed, rejected and out-rightly dismissed. Resultantly, the impugned judgment of acquittal of the trial court dated 17.07.2013 is upheld. Record of the trial court be sent back along with the copy of this judgment to the trial Court for information.