Jammu & Kashmir High Court - Srinagar Bench
Reserved On: 23.02.202 vs Manzoor Ahmad Dar And Others on 17 March, 2021
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
CRAA no.08/2015
Reserved on: 23.02.2021
Pronounced on: 17.03.2021
State of J&K and others
....... Appellant(s)
Through: Mr Mir Suhail, AAG
Versus
Manzoor Ahmad Dar and others
.........Respondent(s)
Through: Mr M. Ayoub Bhat, Advocate
with Ms Mehjabeen, Advocate
CORAM:
HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
Koul, J:
1. This Appeal is directed against judgement and order dated 30th August
2014, passed by the Principal Sessions Judge, Pulwama, (for short
"Trial Court") on a charge sheet presented by police station Pulwama
in connection with case FIR no.115 of 1998 under Section 447, 148,
452, 427, 354, 336, 323, 302, 201 RPC.
2. The case set up by the prosecution is that on 8th April 1988 at 11:30
AM, complainant, namely, Ramzan Dar S/o Jammal Dar R/o Katibugh,
in an injured condition, accompanied by five persons, made a written
complaint before Station House Officer, police station Pulwama,
alleging therein that a trivial scuffle took place on a pigeon between
two kids, one from complainant side and another from accused party.
On the basis of said trivial scuffle between two kids, accused persons,
with common intention, equipped with sticks entered into their
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compound by hurling abuses on them. Complainant and his family
members objected them but accused persons attacked complainant and
his family members and beat them ruthlessly. The accused persons also
pelted stones on the house of complainant damaging windows and
window panes of the house. The accused persons also barged into the
residential house of complainant and caught hold of complainant and
his family members inside their residential house and treat them
severely, where complainant and his family members got injured. The
women folk was also beaten ruthlessly and their modesty was outraged.
3. Upon receipt of complaint, police station Pulwama lodged FIR
no.115/1998 for offences punishable under Sections 148, 452, 336, 427,
354 RPC. Investigation was undertaken. Investigating agency is said to
have gone on spot and prepared site plan of the place of occurrence.
Complainant was examined by doctor and subsequently referred to
SKIMS, Soura, Srinagar, for consultation of surgeon specialist. Injured
persons were also taken to District Hospital Pulwama. The condition of
injured worsened in SKIMS and on 9th April 1988 at 7:30 PM he was
breathless and was shifted to ICCU. On 11 th April 1988 at 8:00 AM,
complainant died because of cardiac arrest. Death certificate was issued
by SKIMS and postmortem of dead body was conducted by Block
Medical Officer, Pulwama and thereafter body was handed over to
brother of deceased-complainant. Supplementary statements of
witnesses were recorded by Investigating Agency on 11th and 15th April
1988. Section 302 RPC during investigation was added. The police
concluded that on the pretext of scuffle between the kids over a pigeon
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in fact the accused persons, with criminal intention, took revenge from
complainant and attacked him and his family members, getting them
injured and complainant succumbed to injuries. Eleven persons were
found involved in this case, who were arrested. The investigation
culminated in presentation of charge sheet against accused persons for
commission of offences mentioned therein. Out of eleven accused
persons, one accused was found minor, below the age of 16 years and
therefore supplementary charge sheet was presented before Chief
Judicial Magistrate, Shopian under Children Act, who was acquitted
vide judgement dated 8th July 2002 by Chief Judicial Magistrate,
Shopian.
4. The charge was framed by Trial Court, to which accused persons
pleaded not guilty and, accordingly, prosecution was asked to lead
evidence. 19 witnesses were cited in the calendar of Challan for
establishing charges against accused persons. It appears that the
building of Trial Court gutted in a fire accident during intervening night
of 29th and 30th September 1989; FIR in respect whereof was also
registered and thereafter the record was reconstructed. The Tribunal
Court vide order dated 6th July 2013 closed the defence evidence and
counsel for parties were heard. The Trial Court, after discussing the
defence evidence and submissions made by counsel for parties, found
that offences punishable under Section 447, 304-II RPC were
established against accused persons 1 to 3 and charges against accused
persons for all other offences, including offence under Section 302
RPC, with which they were charged, were found not proved; besides
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charges levelled against other accused persons were also found not
proved. Accused persons/respondents 1 to 3 were convicted for offence
under Section 447 RPC and sentenced to simple imprisonment for three
months and for offences under Section 304-II RPC read with Section
34 RPC, they were sentenced to simple imprisonment of 20 months and
both sentences would run concurrently and period of imprisonment
they had already undergone during investigation and trial court of the
case was set off from the awarded sentences. The Trial Court found
that accused persons were under imprisonment from the month of April
1988 till 31st December 1989, i.e., from the date when they were
arrested, till they were admitted to bail. It is this judgement and order
dated 30th August 2015 that is impugned in this Appeal.
5. We have heard learned counsel for parties. We have gone through the
Trial Court record as also impugned judgement.
6. Learned counsel for appellant has stated that Trial Court has erred in
not accepting and treating FIR lodged at the instance of complainant/
deceased's written complaint, the statement given by him under Section
161 Cr.P.C. as dying declaration, relating to the cause of death of
deceased/ complainant. The Trial Court is stated to have not taken into
account the provisions of Section 32 of Evidence Act while rendering
impugned judgement and order and, in this regard, he has placed
reliance on Panneerselvam v. St. of Tamil Nadu, 2008 (3) Recent
Criminal Reports 54-2008 Criminal Law Journal 3531-2008 (3) All
India Criminal Law Reporter 321. He also avers that Trial Court
without considering importance of FIR and statement of deceased
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under Section 161 Cr.P.C., straightway engulfed into controversy of
contradictions of its contents and veracity, which is not the right
approach in evaluation and appreciation of evidence, otherwise also
minor contradictions could be there, being ignorable and the veracity
of statement under Section 161 Cr.P.C. and FIR was otherwise proved
by PW16. But that aspect was ignored by Trial Court. He also submits
that there is sufficient evidence on record to show that accused persons
committed offences punishable under Section 302, 354, 336, 323, 447,
148, 458, 427 and 201 RPC and the Trial Court, while evaluating the
evidence, has not properly appreciated the evidence on record. It is
stated that despite consistent and reliable evidence led by PW4, PW6,
PW7, PW8, PW9 and PW10, proving culpability of accused persons in
commission of offence of murder punishable under Section 302 RPC
and that ocular witnesses, PW4, PW6, PW8, PW9 and PW10, rendered
consisting evidence leading credence to the fact that accused are guilty
of offences with which initially charged including charge under Section
302 RPC.
7. Given submissions made by learned counsel for parties, we have gone
through the Trial Court record as also impugned judgement. The Trial
Court has discussed comprehensively and considered the prosecution
case as also submissions made in support thereof by counsel appearing
for prosecution. The Trial Court has examined prosecution witnesses.
It appears that there had been three set of evidence on which
prosecution was banking upon: one set of evidence was statement of
those witnesses, whose statements had been recorded afresh after the
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file was gutted in the fire incident; second set of evidence was certified
copies of statements of some witnesses recorded prior to gutting of the
file in fire incident; and third set of evidence is hand written uncertified,
unattested, unsigned xerox copies and carbon copies of some witnesses
said to have been examined prior to gutting of the file in fire incident.
8. It had been argument of counsel appearing for prosecution before the
Trial Court that FIR and statement of deceased-complainant attained
significance of a dying declaration as at the very outset complainant
himself went o police station and lodged complaint and immediately
got his statement recorded under Section 161 Cr.P.C. and two days
thereafter he succumbed to his injuries. It was also urged that under
Section 32 of the Evidence Act, statements, written or verbal or relevant
facts made by a person, who is dead, or who cannot be found or who
has become incapable of giving evidence or whose attendance cannot
be procured without an amount of delay or expense, which under the
circumstances of the case appears to the court unreasonable are
themselves relevant facts in cases enumerated in Section 32 of the
Evidence Act including the when it relates to cause of death. Taking
into account the arguments advanced by counsel appearing for the
prosecution, the Trial Court has found that written complaint of
deceased complainant on the basis whereof FIR was lodged, is not on
record and similarly original statement of deceased complainant in
terms of Section 161 Cr.P.C. is also not on record. The Trial Court has
also rightly found that even after gutting of the file in fire incident, it
was duty of prosecution to get the reconstructed and prove it by
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secondary evidence. It has also been found by the Trial Court that there
was mutilated carbon copy of statement under Section 161 Cr.P.C.
purported to have been made by deceased. It has also been found by the
Trial Court that none of the witnesses, whose statements are reliable in
the case, have stated that in their presence deceased had made any
statement before the police.
9. Perusal of impugned judgement also reveals that PW6 has stated that
he did not accompany the deceased to police station and same is the
statement of PW8. The statement of other witnesses, recorded afresh,
also does not convey or suggest that statement of deceased
compliainant under Section 161 Cr.P.C. was recorded in their presence.
So, there had been no evidence to satisfy the court that unsigned,
unattested, carbon copy of the statement, purported to have been made
by deceased complainant, has in fact been made by deceased
complainant. It has also been found that there is contradiction between
contents of FIR and carbon copy of statement under Section 161 r.P.C.
of deceased complainant, having been relied upon by prosecution.
10.It is pertinent to mention here, as is also evident from impugned
judgement, that there had been no mention in FIR that three days before
occurrence there was any scuffle between kids of two sides over a
pigeon, rather it had been mentioned in FIR that on the day of
occurrence, i.e., on 8th April 1988 itself, in the morning hours, there was
a scuffle between the kids of the two-sides over a pigeon and on the
basis of said scuffle the accused persons equipped with weapons
attacked complainant-side in their compound. On the contrary, in
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carbon copy of statement, said to have been made by deceased under
Section 161 Cr.P.C. and relied by prosecution, it is mentioned that three
days before occurrence, i.e., on 5th April 1988, there was a scuffle
between two kids of the parties over a pigeon and controversy was
settled there. Three days thereafter when deceased accused, Gani Dar,
returned from Jammu, he got annoyed by hearing the pigeon episode
and with his other relatives he planned to done away with lives of
complainant-party. Another important aspect of the fact that has been
rightly taken note of by the Trial Court is that PW6 and PW8 have stated
that when complainant was given blow over his head, he was feeling
drowsiness. In such situation, it was imperative upon prosecution to
prove that while recording his alleged statement under Section 161
Cr.P.C. he was fully conscious and fit to make the statement but no
evidence was on record to establish this fact that at the time deceased
complainant had purportedly recorded his statement under Section 161
Cr.P.C. he was fully conscious and fit to make the statement stated to
have been made by him.
Thus, the Trial Court has rightly rejected the submission of
counsel appearing for prosecution to consider and accept FIR and
statement under Section 161 Cr.P.C. as dying declaration of deceased.
Consequently, impugned judgement need not be interfered with.
11.Learned counsel for appellant also asserts that elaborate statements of
PW6 and PW8 prove guilt of accused person, but Trial Court has
grossly arrived in punishing and convicting accused persons 1 to 3
under Section 304 Part-II instead of Section 302 read with Section 34
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RPC. The medical evidence on record is said to have clearly shown that
cause of death has been severe type of brain injury and deceased was
subjected to investigation, which revealed intracebral hematoma clot
was removed from his brain shifted to ICU; patient did not show any
post-operative improvement and was declared dead on 11th April 1988.
Learned counsel claims that accused acted in pursuance of common
intention with the common object to kill deceased, Ramzan Dar
inasmuch as prosecution has established by evidence that there was
plan or meeting of minds of all accused persons prior to occurrence to
commit offence for which they were charged with the aid of Section 34
RPC; the circumstances in which the offence was committed also show
that accused persons had intentionally caused death of deceased and
commission of offence was done with common object to be achieved,
i.e., death of deceased and therefore, they are liable to be convicted
under Section 302 RPC read with Section 34, 148 and 149. His further
submission is that Trial Court, while reducing criminal liability of
accused persons 1 to 3 to Section 304 RPC Part-II only, the Trial Court
ignored many aspects to the case, despite there being direct connection
of accused/respondents with commission of offences inasmuch as
impugned judgment is lacking in reasoning.
With reference to above submission of learned counsel for
appellants, the Trial Court has in detail discussed statements of PW6
and PW8 and found the same contradictory. PW6 and PW8, in their
statements, have stated accused, Manzoor Ahmad Dar, gave blows over
the head of deceased complainant, due to which he got serious injuries
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and he was oozing from his house and thereafter deceased complainant
went to police station and lodged FIR and after that he was taken to
hospital. It is also stated by PW6 and PW8 that kicker club, by which
accused, Manzoor Ahmad Dar, gave blows over head of deceased
complainant, was on spot snatched form the hands of accused. In their
cross-examination, these two witnesses have at one place, stated that
the actual cause of scuffle was rift between the two parties over
Nambardari of the village because accused, Gani Dar, had snatched
Nambardari from complainant-side and it also came in their cross-
examination that accused persons and complainant side were living in
the same vicinity; they had earlier no animosity. PW8 stated that if
pigeon episode would not have taken place between their kids, then the
unfortunate incident would not have taken place. In cross-examination
it has also come to fore that in scuffle accused persons, Gani Dar and
Akbar Dar, had also got injured and they had also lodged FIR against
complainant-side. Lodgement of FIR, bearing FIR no.114/1988, by
accused persons with regard to their injuries which had been inflicted
upon them in the scuffle by complainant-side, came to fore during
cross-examination of PW6 and PW8.
12.Much reliance has been placed by learned counsel for appellants on the
statements of PW6 and PW8. We have noticed in the impugned
judgement that the Trial Court has deliberated upon all aspects of the
matter that has been urged by learned counsel for appellant while
rendering impugned judgement. It is discernible on perusal of
impugned judgement that though it was stated by PW6, PW8 and PW10
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that on 7th April 1988, in evening hours, accused persons had hatched a
conspiracy and in furtherance thereof, on next day morning they
attacked complainant and his family members, but there was no
evidence in this regard. PW6 has stated that on 7 th April 1988, PW2
came and told complainant that there was some noise in the house of
Gani Dar and complainant told PW2 that he may have got annoyed by
hearing about the pigeon episode. So, it is evident that there was no
direct evidence and no one has seen accused hatching conspiracy in the
house of accused, Gani Dar, in the evening of 7 th April 1988 and the
statement of PW6, PW8 and PW9 is based on hearsay statement of PW2
whereas statement of PW2 had been discarded.
It has also come to fore that in his statement PW6 stated that
when accused first entered in their compound, they were raising slogans
that they would kill complainant and his family members; the deceased
came out in the compound, tried to persuade accused party but he was
beaten. The other family members also came out and they too were
beaten. They entered into their house for their safety, but they were
again beaten inside their house. He has also stated that in the first
instance when deceased was beaten in the compound, he was not
inflicted any injury and that inside the house he was inflicted injury on
his nose. When he was dragged out at the time, he was caught hold from
his arms by accused no.1, Akbar Dar and accused no.3, Yousuf Dar,
and at that time accused no.1 gave 2/3 blows of kicker club on his head
by which he got injured. PW6 also stated that deceased was also given
a blow on his legal so his leg also got injured. it may be mentioned here
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that if intention of accused persons would have been to kill deceased
then at the very outset when accused persons had entered the
compound, they would have straightway attacked deceased-
complainant and inflicted such serious injuries, which would have
endangered his life, but as per statement of PW6 and PW8, in the first
instance, deceased-complainant was not attacked with such an
intensity, so as to done away with his life.
It has also come in evidence that though initially complainant
and his family members were beat, but at that very moment, kicker
blow was snatched from the hands of accused no.1 by Muma Dar and
if common object of accused would have been to kill complainant, then
after inflicting blows, the accused persons, who were 11 in number,
would not have let the weapon of offence being snatched from their
custody by one single person without putting any resistance. They
would have been knowing its consequences that this weapon of offence
could be used as evidence against them and more so, it was established
from statement of PW6 that there was no resistance form accused-side
while kicker club was snatched from accused no.1. These material
circumstances lead to conclusion that object of accused persons in
attacking complainant was not to kill him. This fact situation is also
emerging from the statement of PW16, Dr. Ab Rashid, in which he
stated that there were abrasions which could have been caused in a free
fight between parties by blows or by hard substance. It becomes, thus,
evident that accused persons had not used any dangerous weapon, like
any fire arm, sharp edged weapon, etc., but they were simply equipped
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with a kicker club (danda). The Trail Court, therefore, rightly found and
said that accused persons had not attacked deceased-complainant and
his family members with common object of killing complainant or his
family as there was no evidence muchless a circumstantial evidence in
this regard thereabout.
13.The Trial Court, after comprehensive discussion, has also rightly said
that accused had entered into compound of complainant party where
scuffle took place between the parties and there was consistent and
cogent evidence qua the fact that during said scuffle accused persons
2&3, i.e., Akbar Dar and Yousuf Dar, caught hold of deceased
complainant from his arms and accused no.1, Manzoor Ahmad Dar,
gave 2/3 blows of kicker club (danda) on his head who was an elderly
person. The Trial Court also found that there was more than one blow
of kicker club (danda) given on the head of deceased-complainant
inasmuch as in such a scuffle one would expect from a prudent witness
to remember whether the victim was given one blow or more than one
blow and it is not expected from his to remember the exact number of
blows. The Trial Court has rightly relied upon Ponuswamy v. State
1992 Cr. L.J. 3100 (Madras) and Ahmad Ali v. State 1996 Cr. L.J. 3315
(Rajasthan), to make conviction under Section 304-II RPC. Thus, the
Trial Court found that ingredients for constituting offence punishable
under Section 304-II RPC were established beyond any doubt. Though
PW6 and P8 are stated to have got injured, but there was no medical
evidence in support of their statements. It was also found that there was
no evidence on record with regard to loss of damage to property alleged
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to have been caused by stone pelting and even there was no consistent
and cogent evidence to establish ingredients under Section 452 and 354
RPC.
14.Upon comprehensive discussion and deliberation of prosecution and
defence evidence and after going through the record on the file, the
Trial Court has rightly found that offence punishable under Section 447,
304-II RPC were established against accused persons 1 to 3 and that the
charges under Section 302 RPC, with which the said accused persons
had been charged, were not proved. And accordingly, the Trial Court
has rightly held guilty and convicted accused persons 1 to 3, for
commission of offences punishable under Section 447, 304-II RPC read
with Section 34 RPC and acquitted all other charges including the
charge for offence punishable under Section 302 RPC. The other
accused persons have also been rightly acquitted of all charged by the
Trial Court. The impugned judgement and order passed by the Trial
Court is lucid, eloquent and comprehensive and therefore, need not be
interfered with.
15.As held by the Supreme Court in Sadhu Saran Singh v. State of U.P.
2016 (4) SCC 357, an appeal against acquittal has always been on an
altogether different pedestal from an appeal against conviction. In an
appeal against acquittal, where the presumption of innocence in favour
of accused is reinforced, the appellate court would interfere with the
order of acquittal only when there is perversity. In the present case, it
cannot be said that the reasons given by the Trial Court while passing
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impugned judgement and order are flimsy, untenable or bordering on
perverse appreciation of evidence.
16.The law on the subject is well settled. The scope of interference as
regards acquittals recorded by the Trial court has been discussed and
decided by the Supreme Court in the case of Sambhaji Hindurao
Deshmukh v. State of Maharashtra, (2008) 11 SCC 186. It was held:
"13. The principles relating to interference by the High Court in
appeals against acquittal are well settled. While the High Court
can review the entire evidence and reach its own conclusions, it
will not interfere with the acquittal by the trial court unless there
are strong reasons based on evidence which can dislodge the
findings arrived at by the trial court, which were the basis for the
acquittal. The High Court has to give due importance to the
conclusions of the trial court, if they had been arrived at after
proper appreciation of the evidence. The High Court will interfere
in appeals against acquittals, only where the trial court makes
wrong assumptions of material facts or fails to appreciate the
evidence properly. If two views are reasonably possible from the
evidence on record, one favouring the accused and one against the
accused, the High Court is not expected to reverse the acquittal
merely because it would have taken the view against the accused
had it tried the case. The very fact that two views are possible
makes it clear that the prosecution has not proved the guilt of the
accused beyond reasonable doubt and consequently the accused is
entitled to benefit of doubt (vide Ganesh Bhavan Patel v. State of
Maharashtra [(1978) 4 SCC 371 : 1979 SCC (Cri)
1], Babu v. State of U.P. [(1983) 2 SCC 21: 1983 SCC (Cri)
332], Awadhesh v. State of M.P. [(1988) 2 SCC 557: 1988 SCC
(Cri) 361], Thanedar Singh v. State of M.P. [(2002) 1 SCC 487:
2002 SCC (Cri) 153] and State of Rajasthan v. Raja Ram [(2003)
8 SCC 180 : 2003 SCC (Cri) 1965] )."
17.From the above it is derivable that while the High Court can review the
entire evidence and reach its own conclusions, it will not interfere with
the acquittal by the Trial Court unless there are strong reasons based on
evidence which can dislodge the findings arrived at by the Trial court,
which were the basis for acquittal and that the High Court has to give
due importance to the conclusions of the Trial Court, if they had been
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arrived at after proper appreciation of evidence. It also emerges that the
High Court will interfere in appeals against acquittals, only where the
Trial Court makes wrong assumptions of material facts or fails to
appreciate the evidence properly.
18.When we peruse the testimony of prosecution witnesses, we do not find
them to have, in any manner, established the prosecution case qua the
offences punishable under Section 302 RPC. Hence, it cannot be said
that prosecution has been able to prove its case, by leading clear,
cogent, convincing and reliable piece of evidence so as to prove that the
accused persons were involved in commission of offences charged
against him under Section 302 RPC. Our opinion is based on complete
appreciation of testimonies of prosecution witnesses.
19.From the material placed on record, prosecution has failed to establish
that the accused persons are guilty of having committed the offence
punishable under Section 302 RPC, they stand charged with. The
circumstances cannot be said to have been proved by unbroken chain
of unimpeachable testimony of the prosecution witnesses. The guilt of
the accused persons does not stand proved beyond reasonable doubt to
the hilt. The chain of events does not stand conclusively established,
leading only to one conclusion, i.e., guilt of the accused.
20.For all the aforesaid reasons, we find no reason to interfere with the
judgment passed by the Trial Court. The Court has fully appreciated the
evidence so placed on record by the prosecution. The accused have had
the advantage of having been acquitted by the Trial Court in connection
with offence punishable under Section 302 RPC.
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21.It cannot be said that the Trial Court has not correctly appreciated the
evidence on record or that acquittal of the accused persons as regards
offence punishable under Section 302 RPC, has resulted into travesty
of justice. No ground for interference is called for. The present appeal
is dismissed. Bail bonds, if any, furnished by the accused are
discharged.
22.Trial Court record along with copy of this judgement be sent down.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
Srinagar
17.03.2021
Manzoor
Whether approved for reporting? Yes/No
MANZOOR UL HASSAN
DAR
2021.03.17 12:25
