State vs Wazir Mohd. & Anr

Sanjeev Kumar, J

1 The State is in appeal against the judgment of acquittal dated 17.11.2012 passed by learned Sessions Judge, Poonch ["the trial court"] in file No.26/Sessions titled State of J&K v. Wazir Mohd & Anr.

2 Before adverting to the grounds of challenge urged by learned counsel for the appellant to find fault with the judgment impugned, a brief reference to the prosecution case, as was put up before the trial court, would be worthwhile.

On 27.10.2001, complainant Abdul Kariem son of Ali Mohd resident of Dingla lodged a written report to the SHO Police Station, Poonch against the respondents/accused alleging therein that he and the respondents/accused were having old enmity over a dispute with regard to a piece of land and on the basis of said dispute, the respondents filed a false and baseless report against him and others in the said Police Station and thereafter at 7.15 pm, the respondents with a common criminal intention entered the disputed land and attacked his son namely Mohd Shakeel. The respondent/accused Mohd Ayoob caught hold of his son and respondent No.1 inflicted a blow of axe on the head of his son with an intention to kill him. Upon hue and cry, his son Zubair Hussain reached the place of occurrence and on seeing him, respondents ran away. His son saw the injured in a blood stained condition. Upon receipt of this report, the police concerned registered FIR No. 181/2001 against the respondents in Police Station, Poonch. Investigation was set in motion and on culmination thereof, a charge-sheet was laid against the respondents before the Court of learned Chief Judicial Magistrate, Poonch, who committed the same to the trial court.

4 Both the respondents were charge-sheeted by the trial court for commission of offences punishable under Section 307/458/326/323/201/34 RPC on 15.07.2002. The respondents pleaded not guilty and claimed trial. The prosecution was called upon to lead evidence. To bring home the charge against the respondents, the prosecution examined PW-2 Abdul Kariem, PW-3 Zubair Hussain, PW-4 Pervaiz Ahmed, PW-5 Shahzad Ahmed, PW-6 Safeer Begum, PW-7 Shakeela Bi, PW-8 Mohd Shakeel, Abdul Haqq, PW-11 Dr. Smt. Qamer-ul-Nissa and PW-14 Sh. Abdul Gani ASI. On conclusion of the prosecution evidence, the statement of respondents in terms of Section 342 Cr.P.C were recorded and incriminating circumstances appearing against them were put to them. The respondents denied the allegations, however, they chose not to produce any witness in defence.

The matter was considered by the trial court and having regard to the evidence on record, it was concluded that the prosecution had failed to bring home the charge against the respondents and accordingly, the trial court acquitted both the respondents of the charges framed against them vide its judgment dated 17.11.2012. It is this judgment, which is assailed by the appellant in this appeal, inter alia, on the ground that the trial Court has failed to appreciate the evidence on record in right perspective, which has resulted in wrongful acquittal of the respondents. It is submitted that there was enough material on record to connect the respondents with the alleged offences. On the other hand, learned counsel for the respondents has supported the impugned judgment passed by the trial Court.

Having heard learned counsel for the parties and perused the record, we are of the view that having regard to the nature of evidence that has been brought on record by the prosecution, the trial court had no option, but to dismiss the challan and acquit the accused.

7 It has come in the evidence that the independent witnesses Faiz Hussain and Barkat Hussain were available to the prosecution, but they have not been cited as the prosecution witnesses. In the present case, all the witnesses have deposed that a number of people were present at the place of occurrence, but they have not been cited as prosecution witnesses by the prosecution for the reasons best known to it. The injured in the present case has himself stated in his statement that his brother has not seen the occurrence. It has also come in the evidence that, the place from where the recovery of alleged weapon of offence was effected, was a thickly populated area, however, no effort was made by the police to join any independent witness. It is settled proposition of law that when independent witnesses are not joined at the time of recovery, the same becomes doubtful. On re-appreciation of evidence, we find that there are material contradictions between the prosecution witnesses with regard to the recovery of weapon of offence. That apart, the statements of the related and interested witnesses have been recorded by the I.O after a long delay which also casts a doubt on the prosecution story. The statements of the prosecution witnesses are also contradictory to their previous statements recorded under Section 161 Cr.P.C and, therefore, they cannot be relied upon. There are serious contradictions between the statements of prosecution witnesses on material aspects and, therefore, under these circumstances, it is not safe to rely upon the statements of eye witnesses who are related and interested witnesses.

Having regard to the evidence that has come on record and reasons given by the trial court, we do not find it a fit case to interfere with the well reasoned judgment of acquittal passed by the trial court.

Otherwise also, it is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view on the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse.

For the foregoing reasons, this appeal is found to be without any merit, hence dismissed. Record of the trial court be sent back.