Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 547 (JK)

State v. Abdul Hamid S/o. Abdul Rahim Malik

2023-09-22

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : Sanjeev Kumar, J. 1. The State of Jammu and Kashmir (now Union Territory) is in appeal against the judgment of acquittal dated 24th June, 2010 passed by the learned Additional Sessions Judge, Doda [“the trial Court”] in file No.21/Sessions titled State v. Adul Hamid and others, whereby the respondents-accused have been acquitted of the charge under Section 302, 307, 34 RPC. 2. Briefly put, the case set up by the prosecution for trial against the respondents-accused was that on 24th August, 2004, the police of Police Station, Gandoh received a wireless message from Incharge Police Post, Kahara that some unknown militants had hurled an RPG on police picket with a view to killing CRPF personnel. The RPG, however, missed the target and blasted in the house of one Mohd. Hanief due to which his two children, namely, Nassra Banu and Baber aged 1 1/2 years and 9 years respectively were injured and succumbed to the injuries on spot and that the wife of Mohd. Hanief, namely Shahida Begum was seriously injured and taken to Thathri hospital for treatment. It was reported that Mohd. Hanief, too, was injured in the incident and was under treatment at Kahara. 3. On the basis of this information, case FIR No.80/2004 for offences under Sections 302, 307, 34, 109 RPC and 7/27 Arms Act was registered in Police Station, Gandoh and the investigation taken up by Sub-Inspector Manjit Singh Incharge Police Post. He visited the site, prepared the site plan, got the post-mortem on the dead bodies conducted and handed over the same to the heirs against proper receipt for performance of last rites. The Investigating Officer also recorded statements of the witnesses under Section 161 Cr.P.C. and injury form of the injured were filled up. Later, investigation was handed over to one Irfan Wani, Sub-Inspector, who, too, visited the spot and after enquiry recorded the statements of the witnesses under Section 161 Cr.P.C. On the basis of the evidence collected during investigation, case was found proved against the respondents-accused and, accordingly, Final Report was laid before the Trial Court. The Trial Court, after considering the material on record and hearing the prosecution and the accused-respondents, charged all the accused for offences under Section 302, 307, 34 and 109 RPC. All the respondents-accused pleaded not guilty to the charge and claimed to be tried. 4. The Trial Court, after considering the material on record and hearing the prosecution and the accused-respondents, charged all the accused for offences under Section 302, 307, 34 and 109 RPC. All the respondents-accused pleaded not guilty to the charge and claimed to be tried. 4. The prosecution led its evidence and examined all the cited prosecution witnesses except PW-19. On the closure of the evidence by the prosecution, incriminating evidence and circumstances appearing against the respondents-accused were put to them, which all of them denied as false allegations. The trial Court heard the arguments under Section 273 Cr.P.C. and did not find it a case for acquittal at that stage. Option was given to the respondents-accused to lead their evidence in defence but they declined to do so. 5. The trial Court considered the evidence on record and came to the conclusion that the prosecution had miserably failed to prove the charge against the respondents-accused beyond any reasonable doubt. Vide order and judgment dated 24.06.2010, impugned in this appeal, trial Court acquitted all the respondents-accused of the charges framed against them. It is this order/judgment of acquittal, appellant is aggrieved of and has called in question on various grounds. 6. Mr. Raman Sharma, learned AAG appearing for the appellant, submits that the trial Court has not appreciated the evidence in correct perspective and has landed in error in not believing a cogent and very convincing evidence that had come on record in the shape of testimonies of PW-5, Mohd. Hanief and PW-6, Shahida Begum and PW-15 Shams-ud-Din. He submits that the aforesaid three witnesses were the eye witnesses to the commission of offence and had disclosed unequivocally the involvement of the respondents-accused in the commission of offence. The witnesses in their testimonies not only identified the respondents-accused, who had committed the murder of children of PW-5 Mohd. Hanief and PW-6 Shahida Begum but they also disclosed the motive for commission of the crime. 7. Per contra, Mr. N.D. Qazi, learned counsel appearing for the respondents-accused, submits that the judgment passed by the trial Court is well reasoned and based on proper appreciation and analysis of the prosecution evidence on record. Hanief and PW-6 Shahida Begum but they also disclosed the motive for commission of the crime. 7. Per contra, Mr. N.D. Qazi, learned counsel appearing for the respondents-accused, submits that the judgment passed by the trial Court is well reasoned and based on proper appreciation and analysis of the prosecution evidence on record. He argues that scope of interference with the judgment of trial Court by the Appellate Court is limited and circumscribed, in that, if on evaluation of the evidence on record, two views are possible, the Appellate Court would prefer to take the view that favours the accused. 8. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the findings of fact recorded by the trial Court and the view taken by it in the judgment impugned is legally correct and unexceptionable. 9. Out of the 18 cited witnesses examined, only three witnesses can be said to have deposed something which can be called to be incriminating against the respondents-accused. Rest of the witnesses have either turned hostile or deposed in a manner that runs contrary to the prosecution version. 10. PW-1 Ghulam Nabi in his testimony stated that at the time of occurrence it was complete dark and, therefore, nobody could be identified. He is only a witness to the fact that on 24th August, 2004 at 8.30 pm there was a blast in the quarter of PW-Mohd. Hanief followed by firing in which one girl and one boy had died. 11. PW-2 Shokat Ali has also made similar deposition. Though, he confirms the blast that took place in the house of PW-5 Mohd. Hanief at 8.30 p.m. on 24th August, 2004, which claimed lives of two children of PW-Mohd. Hanief but denies that he identified the assailants. He states that due to presence of Army, CRPF, STF and Police personnel on patrolling, it was not possible for anybody to enter the house of PW5 Mohd. Hanief during night. He further states that it was a complete dark night and, therefore, it was impossible to identify anybody. He submits that he does not know the accused present in the Court. 12. PW-3 Mehbood Ahmed also states that he does not know the accused persons but he heard the sound of blast at 8.30 pm in the month of August, 2004. He submits that he does not know the accused present in the Court. 12. PW-3 Mehbood Ahmed also states that he does not know the accused persons but he heard the sound of blast at 8.30 pm in the month of August, 2004. He went to the house of PW-5 Mohd. Hanief and found his two children dead and their mother injured. He states that it was complete dark night. He claims to be living at a distance of 1/2 kilometer from the house of PW-Mohd. Hanief. 13. PW-4 Irshad Hussain in his deposition says that he does not know the accused present in the Court. He claims to have visited the place of blast after half an hour after hearing wailing in the house of PW-5 Mohd. Hanief. He was told that a grenade had blasted inside the house of Mohd. Hanief in which his wife Shahida Begum had been injured and two children died. He, however, denies having known the persons, who hurled the grenade. 14. PW-7 Shokat Ali, another prosecution witness, in his testimony states that he was told by PW-15 Shamas Din that the accused persons had committed the crime. It was also told by Shamas Din that his Commander Abdul Hamid had asked him to commit the occurrence, but he did not accompany them. He states that he heard the firing sound at 8 pm but it was a dark night and he was advised by VDC members not to go to the place of occurrence. His brother met him in the morning and told that the assailants could not be identified. 15. PW-8 Mohd. Sharief is neighbor of PW-5 Mohd. Hanief but he feigns his ignorance about the occurrence. He was declared hostile by the prosecution but nothing incriminating could be elicited from him in the cross-examination conducted by the prosecution. 16. PW-9 Mohd. Aslam and PW-10 Mehboob Ahmed are categoric in their statements that they do not know as to who committed the blast. PW-Mehboob Ahmed, however, states that he heard from the people that the blast was handiwork of the militants. 17. PW-11 Constable Lal Din is a witness to seizure memos in respect of some weapons which he submits were brought out from Police Station, Thathri and handed over to Kote Incharge Havildar Shiv Kumar. PW-12 Dr. PW-Mehboob Ahmed, however, states that he heard from the people that the blast was handiwork of the militants. 17. PW-11 Constable Lal Din is a witness to seizure memos in respect of some weapons which he submits were brought out from Police Station, Thathri and handed over to Kote Incharge Havildar Shiv Kumar. PW-12 Dr. Mehmood Ahmed has conducted autopsy on the dead bodies of the deceased children of PW-Mohd. Hanief. He opined that death of two children was due to excessive pain as well as bloodshed which caused neurogenic shock. 18. The witnesses so far discussed herein above, clearly do not support the prosecution story. It was, thus, only the testimonies of PW5 Mohd. Hanief and PW-6 Shahida Begum that needed proper analysis and evaluation. The trial Court has done this job very effectively. The trial Court has rightly found out total inconsistencies in the statements made to the police and the statements of PWs-5 and 6 made in the Court. 19. Indisputably, the statements of these two witnesses were recorded by the police twice i.e. statements of PW-5 Mohd. Hanief were recorded on 25.08.2004 and 30.05.2006, whereas statements of PW-6 Shahida Begum were recorded on 06.12.2004 and 31.05.2006. Both these witnesses, it may be remembered, are the parents of the deceased children. Both the witnesses in their earlier statements i.e. the statements recorded on 25.087.2004 and 06.12.2004 respectively have not indicated the names of the assailants, rather their statement is that the occurrence was committed by unknown militants. However, in their statements recorded on 30.05.2006 and 31.05.2006 respectively both the witnesses have named the respondents-accused as assailants. The only explanation tendered for naming the accused involved in the commission of crime after more than one year and nine months is that they had been threatened by the accused party that in case they deposed against them, their whole family would be eliminated. This aspect has also been analyzed by the trial Court in its correct perspective. The trial Court has reasoned that had it been a case of the witnesses being threatened of dire consequences, they would have atleast disclosed it to their neighbourers, who immediately rushed to their house after hearing the sound of the blast. 20. The prosecution witnesses Mohd. Hanief and his wife Shahida Begum had lost their two children and, therefore, could not have allowed the real perpetrators remain unnamed in the FIR. 20. The prosecution witnesses Mohd. Hanief and his wife Shahida Begum had lost their two children and, therefore, could not have allowed the real perpetrators remain unnamed in the FIR. To put it precisely, the explanation tendered by PW-5 Mohd. Hanief and PW-6 Shahida Begum was not found convincing and appealing to logic by the trial Court. We fully subscribe to the view taken by the trial Court on this aspect. 21. PW-15 Shamas Din is not a trustworthy witness. He himself claims to be an associate of the respondents-accused and was under a direction from his Commander to participate with the accused-respondents to carry out the blast in the house of PW-5 Mohd. Hanief. Though, he submits that he did not go with the respondents-accused and participate in the commission of crime yet he says that he told PW-Mohd. Hanief that the blast that claimed the lives of his children was the handiwork of the respondents-accused. Having regard to his credentials and the nature of deposition he has made before the Court, it is not safe to rely upon his statement and hold the respondents-accused guilty. 22. From the conspectus of evidence on record, it is clearly deducible that none of the witnesses had seen the respondents-accused hurling grenade on the house of PW-Mohd. Hanief. It is because of this reason, the FIR states that the occurrence of blast is committed by unknown militants. PW-5 Mohd. Hanief and PW-6 Shahida Begum, the parents of the deceased children, who, too, were injured in the blast also did not disclose the names of respondents-accused when their statements were first recorded under Section 161 Cr.P.C. They did not even claim to have disclosed the names of the respondents-accused to their neibourers and relations, who had gathered in their house after hearing sound of the blast. Some of the neighbourers of PW-5 Mohd. Hanief have been examined as prosecution witnesses and in their deposition none of the neighbourers of PW-5 Mohd. Hanief has even whispered that PW-5 Mohd. Hanief ever told them that the blast had been done by the respondents-accused. 23. The other prosecution witnesses pertaining to seizure memos are not relevant when the identity of the assailants, who threw grenade on the house of PW-5 Mohd. Hanief is not ascertained. Evidence taken as a whole would only lead us to one conclusion that PW-5 Mohd. Hanief ever told them that the blast had been done by the respondents-accused. 23. The other prosecution witnesses pertaining to seizure memos are not relevant when the identity of the assailants, who threw grenade on the house of PW-5 Mohd. Hanief is not ascertained. Evidence taken as a whole would only lead us to one conclusion that PW-5 Mohd. Hanief and his wife were injured and their two children killed in a grenade attack carried out by unknown militants. 24. Investigating Officer, despite making some efforts and collecting evidence could not identify the perpetrators of the crime. The witnesses cited by the Investigating Officer in the challan do not support the prosecution case when they make their depositions before the trial Court. There seems to be an attempt by the Investigating Officer to name the respondents by recording statements of PW-5 Mohd. Hanief and PW-6 Shahida Begum under Section 161 Cr. P.C. once again after a gap of more than one and half year. He even succeeded in his effort and got respondents-accused named as assailants by the said witnesses. However, when the depositions were made before the trial Court, the contradictions emerged putting the entire case set up by the prosecution in the realm of doubt and suspicion. 25. For the foregoing reasons and also the reasons given in detail by the trial Court in the judgment impugned, we do not find it a case for interference with the judgment of acquittal recorded by the trial Court. Needless to emphasize that the scope of interference with the judgment of acquittal in appeal is circumscribed and even if, on evaluation of the evidence on record, two views are possible, the Appellate Court would take the view that favours the accused. It is cardinal principle of criminal jurisprudence that accused is presumed to be innocent unless proven guilty and this presumption gets fortified with the acquittal by the trial Court. 26. Viewed thus, we find no merit in this appeal and the same is, accordingly, dismissed.