State of Jammu and Kashmir v. Sandoor Singh

Judgment

1. This appeal is directed against the judgment of acquittal dated 31.03.2016 recorded by the court of Principal Sessions Judge, Rajouri (hereinafter to be referred as ‘the trial court’) in case titled, ‘State vs. Sandoor Singh’, whereby the respondent has been acquitted of the charge for commission of offences under Sections 458, 382, 384, 201 RPC and 4/25 Arms Act arising out of the FIR No. 70/2006 of Police Station, Kalakote.

2. The appellant has impugned the judgment dated 31.03.2016 on the ground

that the learned trial court has not rightly appreciated the evidence and has erroneously acquitted the respondent irrespective of the fact that the prosecution had proved its case beyond any reasonable doubt.

3. Mr. Bhanu Jasrotia, learned Government Advocate submits that the learned trial court has not rightly appreciated the evidence and the 2 Crl A(AS) No. 7/2021 prosecution had led the cogent evidence to bring home the guilt of the respondent.

4. Per contra, Mr. Sandeep Singh, learned counsel for the respondent has

6. submitted that the case of the prosecution suffers from material contradictions and serious infirmities and taking note of contradictions and infirmities in the prosecution evidence, the respondent has been rightly acquitted by the learned trial court. Heard learned counsels for the parties and perused the record. The case projected by the prosecution is that on 23.12.2006, Altaf Ahmed S/o Nazir Ahmed along with his brother Irshad Ahmed in an injured condition submitted a written application with the Police Station, Kalakote. It was averred in the application that in the intervening night of 22/23 March 2006, when the members of his family were sleeping in the house, he heard as if someone was breaking the window. He saw two unidentified masked persons armed with toka and the iron pipe entering into his house. Those persons took an iron box containing certain articles outside his house. He attempted to stop them but they told him that they were Mujahadins and in case of any interruption, he would be killed. He made an attempt to get the box back from them but they attacked upon him and his brother with the toka and an iron pipe, as a result of which, they were seriously injured. Only one of the persons was identified by him as Sandoor Singh i.e. respondent herein but the other person could not be identified due to darkness. The respondent along with unknown person fled away from the spot with the iron box. On receipt of this information, the FIR No. 70/2006 for commission of offences under 3 Crl A(AS) No. 7/2021 Sections 458, 382, 384, 323 RPC was registered with Police Station, Kalakote. After conclusion of the investigation, the charge sheet for commission of offences under Sections 458, 382, 384, 323 RPC and 4/25 Arms Act was registered against the respondent and one Daljeet Singh. It needs to be noted that Daljeet Singh died during the pendency of the trial. The respondent was charged for commission of offences under Sections 458, 382, 384, 201 RPC and 4/25 Arms Act vide order dated 29.06.2007. As the respondent did not plead guilty, the prosecution was directed to lead evidence. Out of 11 witnesses cited in the charge sheet, only 09 witnesses have been examined by the prosecution. The respondent did not choose to lead evidence in rebuttal. In order to appreciate as to whether the learned trial court has rightly appreciated the evidence or not, this Court deems it proper to have a brief resume of the prosecution evidence. PW Altaf Ahmed stated that the accused persons were known to him and during intervening night of 22/23 of December, 2006, he was present in his room and he heard a sound of breaking the window. He immediately called his brother and both of them went on spot. The accused persons were carrying one box. When they called them, one of the accused persons attacked with the toka on the head of his brother. As there was darkness, so he could not see as to which of the accused person had attacked his brother with toka. The scuffle also took place in which one of the person was identified as Sandoor Singh. However the other person could not be identified by him. Two ladies suits lying in the box being carried by the accused were found missing. People had gathered on spot

8. 4 Crl A(AS) No. 7/2021 and they also informed the Police. Next day in the morning, they lodged the report. He proved the report (Ext. P1/1) and the FIR (Ext. P1/2). The Police had come on spot and they seized the toka and plastic pipe, which was used as a toy gun. The Police had also seized his torn salwar, which was worn by him at the time of incident. During cross-examination, he stated that he could not say as to how many persons had come on spot due to darkness. He had not mentioned the particulars of the articles in the application those were taken away by the accused. The seized articles were not shown to him in the court. His wife, brother, mother, Mushtaq Ahmed were also present. The neighbourers, Abdul Qayoom, Mohd. Rafiq, Riaz Ahmed and Shamim Ahmed had also come on spot. The respondent was residing at a distance of 2.5 kms. from his house. He was known to him prior to the occurrence. He denied that false case was registered on account of enmity with the accused. He had told the persons gathered on spot about the identification of the respondent. His wife was having lamp in her hand and in the light of the lamp, he identified the respondent.

9. PW Irshad Ahmed has deposed in an identical manner as that of PW Altaf Ahmed about the incident. He further stated that on enquiry, the armed persons told them that they were Mujahidins and threatened that they would be killed in case of interruption. When they attempted to snatch away the articles from them, the accused persons attacked upon him and his brother with toka. His brother sustained injury on his head. He had suffered an injury with the pipe on his leg. His brother had identified the respondent, however he could not identify anyone. They had 5 Crl A(AS) No. 7/2021 taken away two ladies suits from the box. During cross-examination, he stated that it was wrongly mentioned in his statement recorded under Section 161 Cr. P. C. that both the accused were identified on spot. He had not disclosed the name of the accused Daljeet Singh and his parentage to the Police. The toka and the pipe were not shown to him in the court.

10. PW Noor Jahan stated that in the intervening night of 22/23 December, 2006 at around 12-12 ½, the accused entered into her house by breaking the window. The accused took away the box from the house. After hearing the sound, her sons woke up and caught the accused persons. The accused No. 1 was having pipe in the form of toy gun, whereas the accused No. 2 was having toka in his hand. The accused No. 2 hit the head of her son Irshad with toka. When she saw his son in an injured condition, she raised a hue and cry and the accused asked her to keep quiet and told her that they are terrorists and they would kill all of them. People gathered on spot. She identified the accused persons. His son Altaf Ahmed was beaten up by the respondent with the pipe and he sustained injury on his leg. The accused took two suits from the box and fled away and the toka was left on spot by the accused. During cross-examination, she stated that the articles were lying in the room, where the window was broken by the accused. First of all her son Altaf Ahmed woke up and made a noise. Then the people gathered on spot. When the people gathered on spot, the accused persons fled away. Number of other persons were present on spot when her son was beaten by the accused. She had seen her one son beaten by the accused, however the other son was not seen by her while being assaulted by the accused. She denied the 6 Crl A(AS) No. 7/2021 suggestion that on account of enmity, a false case was registered against the accused persons.

11. PW Aftab Ahmed (brother of the complainant) stated that he came to know about the occurrence on the next day. His brother told him about the occurrence. His brother produced a gun and toka before the Police, which was left by the accused. The seizure memos were prepared and he proved the seizure memos Ext. P7/1 and Ext. P7/2. During cross-examination, he stated that the seized articles were not shown to him in the court. The toka and the pipe were common in nature.

12. PW Robina Kouser stated that in the intervening night of 22/23 December, 2006, after hearing the sound, they woke up. The accused covered their faces and entered into their house. First they attacked her husband and brother-in-law. The accused were armed with toka and pipe and they were posing themselves as terrorists. When their masks fell down, they were identified as the accused persons. The accused had caused injury to Irshad Ahmed and also assaulted Altaf Ahmed. During cross-examination, she stated that the quarrel had taken place at the door of the house. She had not seen the accused prior to the occurrence. After hearing the noise, she had gone to other room and at that time, the quarrel was continuing.

13. PW Gulzar Ahmed deposed that in an identical manner as that of PW Robina Kouser. He stated that one of the accused was armed with toka and other was armed with the pipe and on being asked about their identity, they disclosed that they were terrorists and in case they interrupted, they would kill all of them. The accused took away one box. His brother tried 7 Crl A(AS) No. 7/2021 to snatch the box from the accused, to which, the accused thrashed and injured both his brothers. In the meanwhile, mask of Sandoor Singh fell down and he was identified. Similarly, the mask of the other accused also fell down and he was also identified. Sandoor Singh was armed with toka and he assaulted Irshad Ahmed and the other accused fled away with the articles. He proved the seizure memos in respect of toka and the pipe (Ext P8/1). He also proved the seizure memo of knife, Salwar and bag. He also proved the sapurdnama (Ext.P 8/2). During cross-examination, he stated that the accused had entered into the room, where his brother Altaf Ahmed and his family had slept. The name of the accused Sandoor Singh was known to him but the name of other accused was not known to him. His brother Altaf did not know the names of the accused persons. They had caught the accused but their faces were covered. Both the accused had escaped. The toka and the pipe were not shown to him in the court. The accused were in a uniform of Army. Altaf Ahmed was beaten by Sandoor Singh but at that time, the accused was not identified.

14. PW Shamim Ahmed proved the seizure memo of the box (Ext. P6/1) and sapurdnama of the box (Ext. P 8/2). During cross-examination, he stated that in the morning, Altaf had informed him that a theft had taken place at his house. Altaf told him that two masked persons entered into his house and took away two ladies suit from the box.

15. PW Dr. Mohammad Farooq Malik proved the injury reports in respect of victims Irshad Ahmed exhibited as EXTP-M and Altaf Ahmed exhibited as EXTP-M/1. As per injuries, the injured Irshad Ahmed had suffered Lacerated wound over the forehead on right side and multiple 8 Crl A(AS) No. 7/2021 bruises over whole of the body, whereas the victim Altaf Ahmed had swollen and tender left knee joint and skin and tissue around knee joint.

16. PW Bashir Ahmed Kohli is the Investigating Officer. He deposed that the investigation was conducted by him. He further stated that after the completion of the investigation, he proved the offences under Sections 458, 382, 384, 201 RPC and 4/27 Arms Act against the accused persons. During cross-examination, he stated that the accused was arrested during the intervening night of 22/23 December, 2006 and the next day, the case was registered. The name of the accused Daljeet Singh was told by the witnesses. There is no house surrounding the place of occurrence. He further stated that the accused Sandoor Singh was arrested on 25.12.2006 and the other accused was not arrested as he had obtained the bail. The seized articles were produced by the complainant. After having arrested the accused, he had not gone on the spot. The prosecution witnesses are closely related to the complainant.

17. A perusal of the evidence brought on record reveals that there is a doubt in respect of identification of the accused persons. PW Altaf Ahmed has stated that he had identified the accused Sandoor Singh but the other accused was not identified. PW Irshad Ahmed deposed that he could not identify any of the accused. PW Noor Jahan has stated that both the accused were identified on spot. To same extent, PW Robina Kouser has also deposed. PW Gulzar Ahmed has also deposed that both the accused were identified on spot. The statement of PW Aftab Ahmed, who happens to be brother of the complainant and Irshad Ahmed is very relevant as he stated that on the day of alleged occurrence, he was at the house of Gulzar 9 Crl A(AS) No. 7/2021 Ahmed at Village Karlian and the next morning when he came to the house, he heard about the occurrence as his brother told him that two unidentified persons had entered into his house, broke open the box and took away two ladies suit. He has not mentioned about the identity of the accused persons being disclosed to him by the complainant and his other brother Irshad Ahmed. Further, PW Shamim Ahmed, who is the relative of the complainant, also deposed that in the morning, PW Altaf Ahmed informed him that theft has taken place in his house and two masked persons had entered into the house and took away two ladies suit from the box. These are the material contradictions in the statements of the witnesses, which have emerged in the prosecution evidence. There is inconsistency between the statements of PW Altaf Ahmed (complainant) and Irshad Ahmed, notwithstanding the fact that both had gone to the Police Station for registration of the FIR. PW Altaf Ahmed had deposed that the accused attacked on the head of his brother Irshad Ahmed with toka, whereas PW Irshad Ahmed stated that his brother had sustained injury on his head and he too had sustained injury with the pipe on his leg. PW Noor Jahan had deposed that accused No. 2 hit on the head of her son Irshad Ahmed with toka, whereas PW Irshad Ahmed has deposed that he has sustained injury on his leg with the pipe.

18. The above mentioned infirmities have already been noted by the learned trial court and the learned trial court has also considered the doubtful aspect of the story of the prosecution in respect of the alleged stolen articles as well as the box, as in the FIR, it was not mentioned that two ladies suit were stolen. 10 Crl A(AS) No. 7/2021

19. After going through the judgment dated 31.03.2016 passed by the court of Principal Sessions Judge, Rajouri, this Court is of the considered view that the opinion formed by the learned trial court cannot be termed as perverse while acquitting the respondent.

20. In view of the above, this appeal is found to be without any merit, as such, the same is dismissed. (RAJNESH OSWAL) JUDGE Jammu 30.11.2023 Neha-II Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No