Muzaffar Iqbal vs State Of J&K And Another
2021 Latest Caselaw 789 j&K

                                   h475




                                                              S.No.213

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                          CONCR No.78/2015



Muzaffar Iqbal                                         ...Petitioner(s)

                            Through:-
       V/s
State of J&K and another                             ...Respondent(s)
                           Through:- Mr. Adarsh Bhagat, GA

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                         JUDGMENT(ORAL)

1) This is an application by the petitioner seeking condonation of

885 days' delay in filing appeal against the order and judgment

dated 30.112012 passed by the Court of learned Sessions Judge,

Poonch ("appellate court") in file No.01/appeal titled Mohd.

Mehboob and others v. State through Police Station, Mandhar.

2) Briefly stated, the facts leading to the filing of this belated

appeal by the petitioner are that, on 20.04.2000, the complainant

Mohd. Razaq appeared at Police Station, Mendhar in an injured

condition and produced an application against sixteen persons

including the petitioner herein with the allegation that on account of

an old enmity between the complainant and the accused over a piece

of land all the accused with a common criminal intention armed 2 CONCR No78/2015

with axes, rambi and lathies etc attacked the complainant and his

family. On the basis of the allegations contained in the application,

FIR No.46/2000 under Sections 307/452/147/148/109 RPC was

registered and after filing injured form, the injured persons were

referred to medical officer, SDH, Mendhar for treatment.

Investigation of the case was entrusted to Sh. Ramesh Chander

60/IHC, who, during the course of investigation, visited the spot,

prepared site plan, recorded statements of witnesses under Section

161 Cr.P.C. and completed other requisite legal formalities. The

medical report in respect of the injured person was received from

SDH, Mendhar and as per the medical opinion, Section 324 RPC

was also added in the case. The Investigating Officer completed the

investigation and found the offences alleged proved against the

accused persons including the petitioner herein. The challan was

presented before the competent Court of law. The Court of Judicial

Magistrate 1st Class, Mendhar ("the trial court") framed the charges

and called upon the prosecution to lead its evidence. The trial court

found the petitioner herein and nine others guilty of commission of

offences under Sections 452/324/147/148/109 RPC and,

accordingly, convicted them. On appeal by the accused persons

including the petitioner herein, the appellate court vide judgment

dated 30.11.2012, impugned herein, upheld the conviction recorded

by the trial court but granted benefit of the provisions of Section 562

Cr.P.C and, accordingly, let off the petitioner and other accused on 3 CONCR No78/2015

probation of good conduct subject to their entering into a bond to

appear to receive sentence when called upon during the next one

year and in the meantime keep peace and maintain good behaviour.

It is this order of the appellate court, which is sought to be assailed

by the petitioner by way of an appeal, which he has filed after a

huge delay of 885 days.

3) The only ground urged for seeking condonation of

delay is that since the petitioner was exempted from personal

appearance by the appellate court and, therefore, he was not present

on the date the judgment impugned was pronounced. It is submitted

that the petitioner was informed about the judgment much later and,

therefore, there was a delay of 885 days.

4) Notice in the matter was issued on 05.08.2015 and on being

put on notice, respondents entered their appearance through Mr.

P.S.Chandel, the then Deputy Advocate General. Status report on

behalf of the respondents too has been filed. However, petitioner

who had appeared on 05.08.2015 in person has not made any effort

to pursue this matter or get it listed for consideration. Today also,

when the case was called out, nobody turned up to represent the

petitioner.

5) I have gone through the judgment impugned and given

thoughtful consideration to the material on record but do not find

any legal infirmity or illegality in the impugned judgment. The

judgment of conviction recorded by the trial court, which has been 4 CONCR No78/2015

upheld by the learned appellate court, is well reasoned. The

appellate court has thoroughly discussed the evidence on record yet

again and has come to the conclusion that had been arrived at by the

trial court. However, taking into consideration the relevant factors,

which the appellate court has discussed in detail in the impugned

judgment, the benefit of probation was granted to the accused.

6) The judgment impugned has been assailed by the petitioner

primarily on the ground that the trial court as well as the appellate

court committed grave error in relying upon the testimony of the

interested witnesses and, therefore, the judgment is bad in law. I do

not think that testimony of the interested witnesses is required to be

thrown out completely. The legal position in this regard is well

settled that the testimony of witnesses, who may be related to the

complainant, cannot be brushed aside on the ground that the

witnesses deposing against the accused are interested witnesses but

only caution is that testimony is required to be appreciated carefully

and with circumspection and if the same is corroborated by other

evidence including the circumstantial evidence, there is nothing

wrong in placing reliance upon such testimony.

7) That apart, even this criminal appeal, which is in the form of

second appeal may not be maintainable against the judgment of the

appellate court. However, the petitioner has not turned up to

demonstrate as to how criminal second appeal would be 5 CONCR No78/2015

maintainable against the judgment passed by the learned Sessions

Judge, Poonch.

8) For all these reasons, I find no merit in this application.

There is no justification to condone the huge delay of 885 days in

the absence of any cogent explanation. Accordingly, the application

seeking condonation of delay is dismissed. As a consequence, the

appeal shall also stand dismissed.

(Sanjeev Kumar) Judge

Jammu 02.08.2021 Vinod, PS. Whether the order is speaking : Yes/No Whether the order is reportable:Yes/No

VINOD KUMAR 2021.08.04 10:56 I attest to the accuracy and integrity of this document