Jammu & Kashmir High Court - Srinagar Bench
State Of Jammu And Kashmir vs Ab Rashid Itoo on 30 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Serial No. 24
Regular Cause List.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRMC 275/2018 IA(1/2018).
STATE OF JAMMU AND KASHMIR
THROUGH INSPECTOR GENERAL OF POLICE KASHMIR
ZONE SRINAGAR.
...Petitioner(s)
Through: Mr. Illyas Nazir Laway, Government Advocate
VERSUS
AB RASHID ITOO.
Through Mr. Umar Rashid Wani, Advocate.
...Respondent(s)
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
ORDER
30.04.2025
01. The petitioners through the medium of the present petition have challenged notices issued against them pursuant to the directions passed by the learned Additional Sessions Judge, Anantnag on 12th of December, 2017 while passing judgment of acquittal in favour of respondents No. 1 to 4 in a case arising out of FIR No. 152/2009 for the commission of offences under section 3/5 PITA, 366, 376 (2), 511, 342, 120B RPC of the Police Station Srigufwara, Anantnag.
02. It seems that while acquitting the accused, the learned trial Court observed that the Investigating Officer (IO), who had not properly investigated the case and had projected a different story thereby misleading the Court, has to be taken to the task in the light of the judgment passed by the Supreme Court in a case titled "State of Gujarat v. Krishnabhai". It was directed that copy of the order be sent to the Inspector General of Police, Range Srinagar with direction to him to take action against the Investigating Officer of the case namely Inspector Shri Mohammad Akbar for dereliction of his duties as an Investigating Officer in the case.
03. It seems that no action was taken by the petitioners pursuant to the directions of the trial Court and impugned notices came to be issued against the Inspector General of Police, Kashmir Range Srinagar in a Robkar framed against Inspector Mohammad Akbar.
04. Vide order dated 22nd of April, 2022, this Court directed petitioner No.1 to submit a report as regards the action taken by the petitioner No.1 pursuant to the judgment passed by the learned Additional Sessions Judge, Anantnag. Pursuant thereto the requisite report stands filed by petitioner No.1.
05. As per the report filed by the petitioner No.1 in compliance of the directions of the learned trial Court, a Zonal Level Committee under the chairmanship of ADGP, Kashmir was constituted vide ZPHQ order dated 16 th of December, 2022 for examination of judgment of acquittal and Shri Mohammad Akbar and Shri Krishan Ratan, the then Investigating Officers of the case, were asked to furnish their comments.
06. It has been mentioned in the report that the detailed reports were submitted by both the officers in which they have stated that offences under sections 3/5 PIT, 366, 366 (II), 511, 342, 120-B RPC were prima facie established against the accused but the witnesses turned hostile and resailed from their earlier statements while deposing before the trial court which resulted in the acquittal of the accused persons. The petitioner in his status report narrated the following facts which according to him surfaced during the examination of the case:
"a) The investigation of the case has been initially conducted by Inspector Mohammad Akbar, (SHO of Police Station). However, later on the investigation has been carried by three other IOs and finally the investigation has been concluded by Inspector Krishan Ratan, No. 5909/ NGO, against the accused and charge sheet produced before the Honourable Court. During the course of investigation, the statement of all material PWs were recorded under Section 164-A Cr.PC and under Section 161. On the strength of evidence recorded, the case has been rightly concluded under Section 3/5 PITA, 336, 376 (2),511, 342, 120-B RPC by the investigating officer and charge sheet produced before the Honorable Court. However, during the trial process, 22 prosecution witnesses have been deviated from their earlier statements recorded during the trial Investigation included PW Nos. 1 and 2, whose statements were recorded under Section 164-A Cr. PC and subsequently have been declared as hostile. It is pertinent to mention that PW Nos. 3, 6, 22, 23, and 29 have clearly stated about criminal activities and commission of offenses committed by the accused persons.
b) On the overall scrutiny of the investigation conducted as well as evidence gathered by the investigating officer during investigation of the case in hand, it is clear that the investigation has been conducted/closed as per evidence collected during the course of investigation. However, as the maximum PWs have resiled from their statements recorded under Section 164-A Cr.PC,/161, which has paved for acquittal of the accused by the Honorable Court, it is also notable that the investigating officer, namely Inspector Mohammad Akbar No. 4472/NGO, shown as PW No. 29, has admitted and verified the investigation carried out by him while recording his statement before the Honorable Court.
c) The deposition of victim in her examination in chief before the trial court reflected that she had narrated the whole occurrence that took place on 23rd December 2009. The victim has admitted that she has deposed before the magistrate and her deposed statement has also been exhibited as EXPW3. However, the victim in her cross-examination deposes that the statement under Section 164-A Cr.PC has been deposed due to threat of police and has narrated that she has no grievance against the accused person and accused persons are innocent. Moreover, the conducting prosecutor has not made any efforts to re-examine the victim to clear the ambiguity between her statements recorded during the examination in chief and in cross-examination, neither any question has been put forth by the Honourable Trial Court to this extent to meet the ends of justice.
d) Moreover, perusal of the judgment, reflects one important and critical fact which came out starkly is that the court has based its observation on imagined facts and situations which is not otherwise forthcoming from the investigation. It is not specifically mentioned which fact led to the court to believe otherwise than what the prosecution would have liked the court to believe and the trial court, without any other evidence/material on record, should have suspected bona fides of the investigating officer. Moreover, the Honorable Court, while disposing of the judicial proceedings, should have restored to Section 497-B Cr. PC and initiated the appropriate proceedings against hostile witnesses who resiled from statements recorded under Section 164-A Cr.PC which were destructive of the prosecution case.
e) In the backdrop of the evidence put forth by the investigating officer on file and after analyzing the court order, it is clear that nothing is made out against the investigation officer of the case and investigation conducted by the investigating officers, as well as evidence gathered by them, are based on facts. However, the Honorable Court is requested to take recourse of Section 479-B Cr. PC and initiate appropriate proceedings against hostile witnesses who change their version which were destructive of the prosecution case, despite their statements being recorded under Section 164-A Cr.PC."
07. From the above report filed by the petitioner No.1, it is clear that the said petitioner has taken the requisite action pursuant to the orders of the learned trial court. Thus, the proceedings against him cannot be continued. The petition is, therefore, allowed and the proceedings initiated by the learned Additional Sessions Judge, Anantnag against the petitioner No.1 are quashed.
08. Disposed of.
(Sanjay Dhar) Judge SRINAGAR 30.04.2025 Showkat Khan