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2023 DIGILAW 554 (JK)

Mohd. Mushtaq v. State of J&K.

2023-09-25

VINOD CHATTERJI KOUL

body2023
ORDER : 1. This criminal appeal has been directed against the judgment and order dated 24.04.2009 passed by learned Additional Sessions Judge Rajouri (hereinafter to be referred as “Trial Court) vide which the appellant has been convicted for commission of offences punishable under Sections 354, 457 RPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 2000/- for offence punishable under Section 457 RPC and imprisonment of two years for offence punishable under Section 354 RPC and in default of payment of fine to further undergo imprisonment for a period of six months. Both the sentences were directed to run concurrently. 2. Before a closer look at the grounds urged in the memo of appeal, it would be apt to have an overlook on the backgrounds facts. 3. On 09.04.2001 at about 3.30 PM, prosecutrix Smt. Motia Begum being in an injured condition accompanied by her brother-in-law Fiaz Mohd., lodged a written report in P/S Manjakote, wherein she alleged that during the intervening night of 8th & 9th of April 2001, when she was sleeping with her kids at about 10 PM, accused entered in her room by breaking open the bolt of her room and when she enquired as to who was coming, accused, in order to commit rape upon her caught hold of her. When she raised alarm, other family members came and caught hold of the accused and kept him in the same room. It is alleged that the accused with criminal intention wanted to commit rape upon her and for this purpose he had entered in her room. During the scuffle, she suffered cut bruises over left-hand finger which was bleeding. These are the allegations on the basis of which FIR came to be registered against the respondents. Investigation was entrusted to Sher Khan IHC whereas Constable Shakeel Ahmed No. 7925 was given injury form to take the prosecutrix for medical treatment. I.O proceeded on spot, drew spot map as well as recorded the statements of the witnesses and arrested the accused. 4. Since complicity of the appellant in the commission of offence was established during the investigation, the same culminated into filing of final report under Section 173 CrPC. Accordingly, accused was charged for offences punishable U/S 456, 376, 511 RPC whereby he pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. 4. Since complicity of the appellant in the commission of offence was established during the investigation, the same culminated into filing of final report under Section 173 CrPC. Accordingly, accused was charged for offences punishable U/S 456, 376, 511 RPC whereby he pleaded innocence and claimed trial, prompting the trial court to ask for the prosecution evidence. The prosecution has examined as many as seven witnesses and since appellant denied the incriminating evidence against him in his statement U/S 342 CrPC & submitted that prosecution witnesses had made false deposition against him on the basis of enmity on agricultural land, he preferred to enter the defence and examined a solitary witness. 5. Learned trial court on appreciation of the evidence on record and having due regard to the law governing the field concluded that accused is guilty of commission of offence u/s 354 and 457 RPC. Having said so, learned trial court has convicted the appellant u/s 354/457 RPC and was sentenced as mentioned at the outset. 6. Appellant has assailed the impugned judgment inter alia on the ground that the same is contrary to law and facts of the case and the judgment is based on no evidence. The prosecution has failed to establish the guilt of the appellant beyond reasonable shadow of doubt. PW-3 Mohd. Latief has exaggerated his version and the statement of the PW-1 Motia Begum is not corroborated by any witness. Even her version is not trustworthy in view of the admitted facts that the parties had enmity. 7. Appellant has also assailed the impugned judgment on the grounds that learned trial court has failed to appreciate the evidence in the right perspective, which being ridden with material contradictions and discrepancies, is unworthy of credence to convince judicial mind to hold the appellant being involved in the crime and guilty thereof. He has been falsely implicated in the case. 8. While learned counsel for the appellant has reiterated the grounds urged in the memo of appeal, Mr. Bhanu Jasrotia, GA contends that prosecution by leading cogent, credible and trustworthy evidence has succeeded to make out a fool proof case against the appellant. 9. Before adverting to the grounds urged in the memo of appeal, it shall be apt to give a brief resume of the prosecution evidence, which runs as below:- 10. Prosecutrix PWl Motia Begum deposed that accused resides near her house. 9. Before adverting to the grounds urged in the memo of appeal, it shall be apt to give a brief resume of the prosecution evidence, which runs as below:- 10. Prosecutrix PWl Motia Begum deposed that accused resides near her house. She does not remember the date of occurrence but it took place some 4/5 years back in the spring season. Her husband had been to Mendhar, she along with her kids were sleeping when at 10 PM accused broke open the bolt of her room. She raised alarm, her mother in law and other people gathered on spot. That the accused made an attempt to commit rape upon her, by dragging her, in the meanwhile PW-3 Mohd. Latief neighbourer, came and bolted the room from outside. In the morning police party came and accused was handed over to the police. She lodged report. She has admitted its contents made in FIR to be true, accordingly the same was exhibited as EXPW-MB1. In cross-examination she stated that her husband and the accused are having enmity over some landed property. However, she conceded that portion of land which is used for grazing purpose has been considered by the accused and he does not allow either the complainant PW3-Mohd. Latief to use for cattle grazing. Said land subject matter of dispute. She does not remember as to who is the author of EXPW-KB1, but admits to have put in her thumb impression over it. On being dragged by the accused neither her clothes got torned nor did she suffer any bruise on her body. Accused did not use to come to their house. He did beat her some 5/6 months back when she had cut bushes from his land. She denied that on the day of occurrence accused while being on way home was caught by PW Mohd. Latief and confined in her house. The room in which she was sleeping has got no window but only one door. She stated that she does not remember as to which of the person had been to her house when accused was caught on spot. 11. PW3 Mohd. Latief has deposed on oath that on 8.4.01 at around 10 PM he was sleeping in his house when he heard noise emanating from the house of Mohd. Bashir. He ran towards the house of Mohd. 11. PW3 Mohd. Latief has deposed on oath that on 8.4.01 at around 10 PM he was sleeping in his house when he heard noise emanating from the house of Mohd. Bashir. He ran towards the house of Mohd. Bashir and found the door of his house opened, the salwar of prosecutrix was below her knee and accused had engulfed her. Raj Begum and Feth Houd in-laws of the prosecutrix they too came in from another room. Three other ladies including Janat Begum also arrived. Door from which accused entered into the house of the prosecutrix its bolt has been broken from inside. Accused was detained in the house of the prosecutrix for the whole night and next day police was in formed, who came and took away the accused. Prosecutrix lodged report, her brother in law accompanied her to the Police Station. In cross-examination she denied that he and the accused have got land dispute.. On that night, prosecutrix and her in-laws were sleeping in their home. Within two minutes of hearing the noise, he (witness) came to the house of the prosecutrix. He reiterated that when he reached to the house of the prosecutrix, the prosecutrix and accused engulfed each other and as the salwar of the prosecutrix was below knee, he noticed it, but could not notice the colour of the salwar of the prosecutrix. Accused was naked but wear only white shirt, rest of his body was naked. On seeing the witness accused left the prosecutrix He did not observe accused entering into the house of the prosecutrix. Room in which the prosecutrix and the accused had engulfed each other, it bolt from inside had been broken. For whole night he too stayed in the house of the prosecutrix till, police arrived. 12. PW4 Hisar Ahmed deposed that he knows the accused during night of 09.04.2001, he heard noise emanating from the house of the prosecutrix but he did not go there. Next morning he went to the house of the prosecutrix who told him that accused had been to their house and police arrived and took away the accused. In cross-examination stated that while he was on way towards school, he saw police taking away the accused. He denied that he too is having any dispute with the accused an some landed property. 13. In cross-examination stated that while he was on way towards school, he saw police taking away the accused. He denied that he too is having any dispute with the accused an some landed property. 13. PW5 Shamsher Ahmed deposed that he knew prosecutrix and the accused party. Around three years back he heard noise emanating from the house of the prosecutrix and since it was night he did not go there but in the morning he did go to the house of the prosecutrix, where she told him that accused had been to her house with intent to misbehave with her. Before police could come, the witness left her house. In cross examination, he deposed that when he went to the house of the prosecutrix he did not see accused but was told that police took away the accused. 14. PW6 Mohd. Raiz has stated that he resides near the house of the prosecutrix and while he was on way towards school, he Passed through the house of the prosecutrix. He noticed that accused was being taking away by the Police. caught from the house of the prosecutrix. In cross-examination he deposed that accused was being taken away from the compound of the prosecutrix. Some male and female persons were also standing there. That accused has cornered some land which was being used by the local people grazing of cattle but he has no knowledge whether that land is subject matter of any dispute. 15. PW7 Dr. Mohd. Yaseen has deposed that he examined the prosecutrix as KLC case No.120 at 10:50 AM cxi 9.4.2001 at PHC Manjakot. He noticed one incised wound on the index finger of the prosecutrix. 16. On conclusion of the aforementioned prosecution evidence, since appellant denied the incriminating material against him in the prosecution evidence in his statement u/s 342 CrPC, he examined one witness in defence which is as under:- 17. DW Karama Hussain has stated that he knows both the parties. In April 2001 police came to his village but the allegations against the accused were found not proved. He knows PWs Nisar, Shamsher and Mohd. Latief and they were are enimical with accused over some landed property. Accused has been framed in a false case. Had the occurrence been true, then he would have certainly knowledge of that occurrence because he just resides adjacent to the house of the prosecutrix. He knows PWs Nisar, Shamsher and Mohd. Latief and they were are enimical with accused over some landed property. Accused has been framed in a false case. Had the occurrence been true, then he would have certainly knowledge of that occurrence because he just resides adjacent to the house of the prosecutrix. In cross-examination he deposed that the land which is the subject matter of the dispute between the accused and the witnesses is Govt. Land and no case is sub-judice between the parties. 18. This is all about the defence evidence. 19. Before adverting to analyse the prosecution evidence it shall be apt to recall that it is the prosecution case that on 08.04.2001 at about 10 PM, accused intruded himself inside the room of the prosecutrix in order to make an attempt to commit rape upon her which was caught hold by her on raising sentence and alarm, that attracted attention of his in-laws and PW-Mohd Latief. As per prosecution, prosecutrix PW1 Motia Begum has given truthful statement which his corroborated by PW-Mohd. Latief that accused intruded into the room of the prosecutrix with intent to commit rape upon her at…was proved that PW1 and accused was involved in struggle, and she was bring to put him away. The accused was confined in the house of the prosecutrix till morning of 09.04.2001. 20. The I.O came on spot for registration of FIR on the complaint made by the prosecutrix on 09.04.2001 at 3.30 PM. So the accused was arrested on the next day. As per the FIR, the distance of Police Station from the place of occurrence is about 5 Kms. Having heard learned counsel for the parties and gone through the evidence produced. 21. The prosecutrix, in her statement, has admitted that she was not permitted to cut bushes from the state land occupied by the appellant which was also a cause for falsely implicating the appellant in the case. All incriminating circumstances were not put to the appellant when his statement under Section 342 CrPC was recorded. I.O has not been produced and his production was necessary because of the contradictions in the statement of the witnesses as well as inconsistent statements. His production was necessary not only for the prosecution but for the defence also, who could have cross examined regarding the material particulars. I.O has not been produced and his production was necessary because of the contradictions in the statement of the witnesses as well as inconsistent statements. His production was necessary not only for the prosecution but for the defence also, who could have cross examined regarding the material particulars. Non production of the I.O caused serious prejudice to the accused person. Another submission in the case is that the bolt of door from inside was broken and non seizure of the broken bolt goes against the prosecution version, which trial court has failed to appreciate. 22. So far as the evidence of PW Mohd. Latief who claims himself to be an eye witness is concerned the same appears to be exaggerated and further stands falsified by FIR lodged in the present case and also the statement of the prosecutrix. A perusal of the statement of PW-1 would show that there had been no allegation that her Salwar was below her knee or the accused was naked. What is stated by PW-3 Mohd. Latief is when that he heard noise and ran towards the house of Mohd. Bashir, where he found the door of his house opened, the Salwar of the prosecutrix was below her knee and accused was engulfed by the prosecutrix. During the cross-examination he has stated that accused was naked and was wearing white shirt, rest of his body was naked. If it was so, the prosecutrix would have stated so in her statement. There is no allegation made by the prosecutrix which would suggest either her salwar was opened or the accused was naked. The testimony of the P-3 Mohd. Latief that his presence on the spot having been witness of occurrence makes doubtful. Admittedly, it is shown from the statement of the prosecutrix and PW-3 Mohd. Latief that there was some dispute between the parties on account of some land. The prosecutrix herself has stated that accused does not allow either her or the PW-3 Mohd. Latief to use portion of land which is being used for grazing the cattle and the said land was subject matter of the dispute. This makes it clear that there is dispute between the parties and as stated by her accused was not allowing her or Mohd. Latief to graze cattle on the said land. Since the statement of Mohd. Latief to use portion of land which is being used for grazing the cattle and the said land was subject matter of the dispute. This makes it clear that there is dispute between the parties and as stated by her accused was not allowing her or Mohd. Latief to graze cattle on the said land. Since the statement of Mohd. Latief has not corroborated the statement of complainant, therefore, such statements cannot be believed in view of material contradictions in the statement of witnesses with regard to the material facts. 23. PW 2 Mohd. Raj Begum who according to the prosecution version in eye witness, has reached the spot of occurrence. Neither her statement has not been recorded nor she was produced which makes an impression that had she been produced, she would not have supported the prosecution version and that is the reason she was not produced. 24. PW4 Nisar Ahmed, PW5 Shamsher Ahmed, PW6 Mohd. Raiz have been shown as eye witnesses to the occurrence but when they were produced for examination, they did not support the claim of the prosecution. PW4 Nisar Ahmed, has stated that he heard noise emanating from the house of the prosecutrix, but he did not go inside the house, which makes it clear that, he has not supported the prosecution evidence. Accused had been arrested at 3.30 PM, whereas PW-4 Nisar Ahmed claims that on next morning when he went to the house of the prosecutrix, police took away the accused. As per his claim, when he was on his way towards school, he saw police taking away the accused. This version of PW4 Nisar Ahmed that he saw Police in the morning taking away the accused cannot be relied upon because, as per the prosecution, accused was arrested at 3.30 PM not in the morning. Statement of PW5 Shamsher Ahmed is also not corroborated with testimonies the witnesses of the occurrence when he says that he heard noise but he did not go to the house of the prosecutrix. He stated that he went there in the morning, where he was told that accused entered in the house and misbehaved with the prosecutrix. Statement of PW5 Shamsher Ahmed is also not corroborated with testimonies the witnesses of the occurrence when he says that he heard noise but he did not go to the house of the prosecutrix. He stated that he went there in the morning, where he was told that accused entered in the house and misbehaved with the prosecutrix. Statements of these witnesses also cannot be relied upon because the witnesses of the occurrence have not gone to the spot as claimed by the prosecutrix and they did not saw the accused being taken away by the Police. 25. PW6 Mohd. Raiz who was also shown as eye witness is not the witness to the occurrence. All these witnesses have, thus, not supported the prosecution case or the charges framed against the appellant. PW7 Mohd. Yaseen has examined the prosecutrix and has issued the certificate as he found injury on the index finger of the prosecutrix. 26. From the discussion made hereinabove and while appreciating the evidence and in view of the material contradictions, the investigation officer was required to be produced and examined who could have explained the contradictions in the prosecution story but by keeping him away, appellant accused has been deprived of his right to cross-examine the I.O. Thus, non production of the I.O in such circumstances, when there were material contradictions is threat to the prosecution which fact has been overlooked by the trial court. 27. Accordingly, the appeal is allowed and the sentence recorded by the trial court vide order dated 24.04.2009 is set-aside.