State Of Uttarakhand vs Jakir & Others
2023 Latest Caselaw 1984 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
       Leave to Appeal No. 124 of 2020
                    With
      Government Appeal No. 79 of 2020

State of Uttarakhand                             ... Applicant

                            Versus

Jakir & Others                              ... Respondents

     Mr. J.S. Virk, Deputy Advocate General, assisted
     by Mr. Pankaj Joshi, Brief Holder for the
     State/appellant.
     Mr. Pradeep Kumar Chauhan, Advocate, for the
     respondents.

                                Judgment reserved on: 25.7.2023
                             Judgment pronounced on: 1.8.2023


Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

By this petition under Section 378(3) of CrPC, State/petitioner is seeking leave to appeal against the judgment/order dated 24.10.2019, passed by Additional Sessions Judge, Laksar, District Haridwar, thereby acquitting the respondents from the charges framed against them under Sections 452, 323, 324, 325, 307, 504, 506 IPC.

2. Facts of the case, as noticed by the trial court, are that an FIR was lodged by PW6 Jabir Hasan at 5.15 PM on 4.2.2012 with the allegation that his brother Mashruf was married to Momina, daughter of respondent no. 1. Momina did not like Mashruf and she wanted divorce. She, in conspiracy with members of her maternal house, once tried to

administer poison to Mashruf. It was further alleged that on 3.2.2012, at about 2 o'clock in the day, family members of maternal house of Momina, including the respondents, entered the house of complainant's brother. They were hurling abuses. Out of them, Mehboob and Sher Ali were armed with pistols, Jakir was armed with tabal, Jabir was armed with knife, while Ajad, Parvej, Juber, Sajid, Smt. Samina, Sarul, Gulam Hussain and Guddo were armed with rods, lathis and dandas. Mehboob and Sher Ali opened fire on Mashruf, however, he escaped. Thereafter accused persons assaulted Mashruf with the weapons, which they were carrying with themselves. On hearing the noise, family members of complainant, namely, Asgari, Shahnaj, Munfait, Jahida, Sabri, Munsab, Dilshad, etc., came to rescue Mashruf. Then they were also assaulted by the accused persons, who left the spot holding out a threat to kill them.

3. Total twelve persons, including present four respondents, were named in the FIR. After investigation, police submitted chargesheet against the respondents only and exonerated other eight named accused. Respondent no. 1 is father of Momina and respondent 2, 3 and 4 are sons of respondent no. 1.

4. Defence put forth by respondent no. 1 Jakir was that having received a phone call of his daughter Momina at about 10 o'clock on

3.2.2012, he and his three sons (respondents herein) went to the matrimonial house of his daughter at 11 o'clock on that day. Then Munfait (PW1), Mashruf (PW2), Dilshad (PW3), Munsab (PW4) and their family members assaulted him and his three sons with intention to kill them. On raising the alarm by Momina, the villagers pelted stones from their roofs and rescued them and also informed the police and 108 Ambulance. Thereafter they (respondents) went into ambulance at 13.48 hours. Then how they would have committed the alleged incident at 2 PM. To corroborate this fact, respondents have also brought on record the information received in this regard under the Right to Information Act.

5. To bring home the guilt against the respondents, prosecution examined 13 witnesses in all. PW1 Munfait, PW2 Mashruf, PW3 Dilshad, PW4 Munsab, PW6 Jabir Hasan, PW7 Sabri and PW9 Smt. Sahnaj are the members of same family. PW5 Dr. Ravikant medically examined the injured persons. PW12 is a formal witness. Investigation was initially entrusted to PW13 S.I. Manoj Rawat and subsequently, investigation was handed over to PW11 S.I. Pradeep Bisht, who filed the chargesheet in this case. PW8 Dhir Singh and PW10 Jaykaran are two independent witnesses.

6.         On     perusal       of   the   evidence   on
record,   trial   court     disbelieved     the    entire

prosecution story and held that the FIR in this case was lodged by PW6 as a counterblast to the FIR lodged by respondent no. 3 against the complainant side.

7. It is not in dispute that complainant (PW6) is not an eyewitness of the alleged incident. It is also not in dispute that there is a cross-version of the incident inasmuch as respondent no. 3 lodged the report at 6.30 AM on 4.2.2012 alleging that the incident took place at 11 AM on 3.2.2012, whereas PW6 lodged the report at 5.15 PM on 4.2.2012. Many prosecution witnesses were accused in the FIR lodged by respondent no. 3.

8. We also gather from the impugned judgment that chargesheet was filed only against four persons and remaining eight persons were exonerated. This fact also raises serious doubt on the prosecution story, particularly the manner in which it is alleged to have taken place.

9. As regards the deposition of prosecution witnesses, we gather from the discussion made by the trial court in the impugned judgment that PW1 Munfait has admitted in his cross-examination that police sent him to jail on the next date of alleged incident in connection with the cross-FIR. The trial court also noticed that some other members of the complainant side were also arrested. Trial court also noticed that PW1 has

admitted that after the incident, ambulance came at the spot, in which the respondents were shifted to hospital. Investigation Officer (PW13) has also admitted that respondents were shifted from the spot to Government Hospital at Laksar from ambulance. Trial court also noticed that PW1 has admitted in his cross-examination that accused persons were rescued by the villagers. Trial court also noticed that no weapon has been recovered from any of the accused persons.

10. Based on the above facts, the trial court observed that the police was well aware as to who were the real victims and who were the aggressors in this incident and had the respondents been aggressors, police would have arrested them first. Trial court also observed that all these facts rather substantiate the defence put forth by the respondents.

11. Trial court further noticed that PW2 Mashruf admitted in his cross-examination that Momina has not filed any divorce suit. Rather, PW2 filed it and, after three years of the alleged incident, he married again. Based on this evidence, the trial court observed that it was PW2 Mashruf who wanted to divorce his wife Momina. Trial court also observed that there is nothing on record to show as to when Momina tried to administer poison to PW2 and how he escaped and why FIR was not lodged.

All this raises serious doubt in the prosecution story.

12. As regards testimony of injured witnesses, the trial court noticed that there is nothing on record to show that injured persons were referred to higher centre. Further, PW5 Dr. Ravikant has admitted that he did not see the x-ray plate, CT scan of PW2 Mushraf and also the original report of the Himalay Hospital, based on which he had prepared the supplementary report. X-ray plate and CT scan of PW2 were also not brought on record. The trial court also noticed that other injured persons have stated that they were assaulted by rods, knife, lathi, danda, ballam, tabal, however, they suffered simple injuries and thus the medical evidence also does not support the prosecution story.

13. As regards testimony of independent witnesses PW8 Dhir Singh and PW10 Jaykaran, PW8 has admitted in his cross-examination that he knew the name of Jakir only and he did not tell the police the name of anyone else except Jakir. Further, PW8 has stated that 108 Ambulance did not come at the spot, whereas it is proved on record, based on the testimony of PW1 and PW13 and also the documentary evidence adduced in defence, that the ambulance did come at the spot in which respondents were shifted to the hospital. Thus, testimony of PW8 is not believable. PW10 did not support the prosecution story and declared

hostile. No other independent witness has been examined in this case.

14. In view of the above reasons, trial court held that prosecution has miserably failed to prove its case and acquitted the respondents. We are in full agreement with the judgment of the trial court. In the whole judgment, it is nowhere pointed out as to how and where the trial court has gone wrong. Trial court has, in detail, considered the evidence and came to the finding that the verdict of conviction was not possible in this case. There is no infirmity in the impugned judgment that calls for interference.

15. It is settled law that in an appeal against the judgment of acquittal, ordinarily the finding of acquittal should not be upset unless it is found that the same is totally perverse and some important piece of evidence, which might have resulted in the conviction of the accused, has not been considered by the trial court. In the present case, no such evidence has been pointed out.

16. Consequently, leave to appeal is refused. Leave petition is dismissed. Government appeal also stands dismissed accordingly.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

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