Jammu & Kashmir High Court - Srinagar Bench
State Of J&K Through Sho Police Station vs Khazir Mohammad Raina And Ors on 6 November, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRAA No. 16/2017
Reserved on: 05.09.2023
Pronounced on: 06.11.2023
State of J&K through SHO Police Station, ...Appellant/Petitioner(s)
Ganderbal
Through: Mr. Rayees-ud-Din Ganaie, Dy. AG
Vs.
Khazir Mohammad Raina and Ors. ...Respondent(s)
Through: Mr. S. N. Ratanpuri, Advocate with
Mr. F. A. Lone &Ms.Saima Ghulam, Advocates
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. This appeal is directedagainst the judgment dated 30.03.2017, passed by the Court of Principal Sessions Judge, Ganderbal (Trial Court hereinafter) in a case titled as State v. Khazir Mohammad Raina &Ors., whereby the Trial Court while dismissing the challan has acquitted the accused - respondentsherein, by holding that the prosecution has failed to prove the charges against the accused- respondents beyond any doubt.
2. Briefly stated, facts leading to filing of this appeal are that on 14.11.2012, the complainant Khursheed Ahmad Tantray S/o Gh. Mohi-ud-Din Tantray R/o Gund lodged a written complaint with the police to the effect that his father along with other respectable persons were monitoring the road widening work by R&B Department from Gund to Haknar. In the meanwhile, the accused-respondents with the intention of killing his father throw a stone on his head resulting into his injury. Due to the intervention of some respectable on spot, he was saved from the clutches of the non-applicants etc.
3. After receiving this report, police registered the case under FIR No.51/2012 under Sections 307, 341, 323 RPC and started the 2 CRAA No. 16/2017 investigation which was entrusted to PW-11. During the course of investigation sitemap was prepared, the weapon of offence (stone 1 no.) seized and seizure memo prepared.The injured was sent for treatment and medical opinion was received. On the basis of medical opinion, the offence under Section 323 RPC was converted to offence under Section 325 RPC. The statements of the witnesses were recorded under Section 161-Cr.PC and the statement of the PW-6 was recorded under Section 164-A Cr.PC. On the basis of facts,circumstances, evidence, the offence under Section 307, 341, 325 RPC were established against the accused no.1 Khazir Mohammad Raina while as offence under Section 341 RPC was established against the accused Mohd Sabir Raina and Mst. Abida. Lastly, the investigation culminated in the form of present challan against the accused and was presented before the Court of Judicial determination.
4. The accused nos. 1 & 2 were charged for the commission of offences under Sections 307, 325, 341 RPC while as accused no.3 was charged for the commission of offences under Section 341 RPC vide order of the court dated 08.02.2013. the contents of the charge were read over and explained to the accused, who denied the same and claimed to be tried, as such, prosecution was directed to adduce evidence to accomplish the guilt of the accused persons. The prosecution out of 12 listed witnesses produced and examined 10 listed witnesses whereas the prosecution witness no.7 Abdul Razak Raina & PW-9 Mohd Shafi Tantray were reported to be dead during the trial. The statement of the accused under Section 342 Cr.P.C. were recorded whereby they opted to produce evidence in defence. The accused have produced one witness in defence and accordingly evidence was closed.
5. Before proceeding further, it would be proper to have account of the witnesses produced by the prosecution before the Trial Court.
(1) PW-1 Khursheed Ahmad deposed that he knew the accused present in the Court. A road from village Gund to Marw was under
construction and all the villagers left their land for the road widening but the accused refused to give their land. The wall 3 CRAA No. 16/2017 fencing which was around the land of the accused was demolished with JCB. The accused were again constructing the same on which scuffle took place. The accused attacked his father with a stone and injured him. The nose of his father was injured and the occurrence took place in presence of police. He gave report in police. The first information report was written by him which bears his signatures. The application given to police annexed with the file is true and correct and exhibited as EXPW-1. He was with his father at that time. He gave statement in police. Before this he has not given any statement before judge Sahib. the statement under Section 161 Cr.PC bears his signature.
In cross examination deposed that he is a shopkeeper but his father is working in post office. He does not know, who was the driver of the JCB who demolished the wall of the accused. The JCB was not of the revenue department but was owned by private person. The statement of the driver of the JCB was not recorded by the police who as per the witness has demolished the wall of the accused persons. The offcials of the R&B department have also not given statement to police. He does not know whether police has seized the plan out lay from the R&B department during the investigation. On the next day of occurrence he gave report to police. Same report was read over to him today. On the next day of occurrence at 10 AM morning he gave report in the police station. But he has not mentioned in the report that police personals were also present on the spot. It was month of November but does not remember the date. He gave statement on the second day. First of all he took his father to Gund hospital and thereafter took him to SMHS Srinagar. At 1 PM on the day of occurrence they went to Gund hospital where from they were referred to SMHS. Police has not seized the blood strained clothes of his father. (2) PW-2 Gh. Mohi-ud-Din Tantray deposed that he knew the accused. Since last 18 years he is performing „Imamt‟ in Tantary Mohalla. They were trying to carve out a link road from Tantary Gund since last three years and in the mean while last year they 4 CRAA No. 16/2017 succeded in carving out the same. Contractor came on spot and started the work. With JCB they lifted the walling etc. and on the next day the accused again started the construction of wall on the same place where they had demolished the same with JCB. The accused again want to construct the wall and block the link road.
Then he along with some ther persons went to police station. ASI and other police personels came on spot with him. The asked the accused whey they are doing so. On which accused no.2 rebuked him. From both sides exchange of rebuking took place. On this both the accused father and his son beat him. The sister of accused no.2 pulled her beard. Then after intervention they were separated from one another. Then again measurement of the road was done which was done n the presence of personnels of police station. The measurement of the road was done upto the spot where road was carved out. The accused no.3 told him that do not took the measurement tap in the hand as he called him dishonest. He was taken away from the spot by his wife. He was 4 meters away from the spot and was taking on phone. The stone was thrown by accused Khazir Mohammad Raina upon him from the other side and blood fell down there and he was taken to hospital. His forehead from right side and nose was injured by the hitting of stone. He was brought to Gund hospital. Then after treatment and stitching on the forehead he was taken to Sadar hospital where X- ray was taken and he was discharged from hospital at 9 O‟clock. Later on he gave statement in court at Kangan. He gave same statement today in the court.
Upon cross examination deposed that he has no religious knowledge except knew the offering of Nimaz. The prosecution witness no.1 is his son and PW-3 his wife. The PW-6 is cousin brother of is wife. The PW-8 is his relative. The R&B department was constructing the road. No officer or employee of the R&B department was present on spot. ASI and two other persons were present on spot. The police men remain present on spot for about one hour. The walling was dismantled by the villagers and the 5 CRAA No. 16/2017 stones of the wall were lying on spot. There was no Govt. order or plan of Government regarding the construction of the road. Nothing was handed over to police on spot. He has not seen any stone today in the court nor can identify any stone. When they went to police for bringing them on spot, they have given a written application to them. He has not seen any such application today in the court. His two sons namely Khursheed Ahmad and Muzamil Mustafa were accompanied with him to Sadar hospital. His wife, niece brother Abdul Ahad and Imtiyaz Ahmad Raina were accompanied with him. He has not given any statement in police, but gave his statement in the court but does not remember after how many days he gave his statement in court.
(3) PW-3 Gh. Mohammad deposed that he knew the accused. In Gud R&B department were carring out a road. The accused no.1 picked up a stone and throw the same on the head of Gh. Nabi Tantary due to which he was injured. On spot lot of people gathered. Then police came on spot and arrested the accused. Police seized the stone. They put their signatures on the application and police prepared the case on which he put his signatures. Police prepared a paper regarding the stone which the police seized from the spot. The seized stone was shown to the witness who identifies the same which is about three Kgs. He gave same statement in the police which he gave today in the court.
In cross examination deposed that Khursheed Ahmad has given application in the police station who is his close relative. He does not remember the name of R&B Engineer. JE Sahaib was accompanied by subordinate employees but does not remember their names. The accused had no wall near the road. It is correct that JE or contactor has not lodged any FIR against the accused. This is not true that he along with complainant party want to dismantle the wall. No map was prepared regarding the road. His shop is about 4/5 Km away from the spot. On spot there was lot of stones and Bajri. The construction work on the road was going on. It is true that he was in his house when scuffle was going on who 6 CRAA No. 16/2017 wrote the application; he does not remember but he has signed the same. The application was written in Urdu. After seeking the application, the witness stated that it does not bear his signature. It is correct to say that the application which complainant Khursheed Ahmad gave to the police is not same which is on the file. Actually, the dispute was on wall. The scuffle took place on wall because we were asking accused to remove the same. Police was present on spot. They have personal knowledge regarding the occurrence. About two to two hundred fifty perrons were present on spot which also include police personnel but does not remember their names. He does not know whether the stone by which he was struck was blood strained. The stone was not given by anyone to police but the police of their own took it from spot. In case police has written in seizure memo that stone was given by them to police, it is wrong. It is true that blood felt on the clothes of injured and bajri. He does not know whether the blood strained clothes and bajri was seized by the police. The injury was caused on the forehead and the nose of the injured. In case police says that there was not injury on the forehead of the injured, it is wrong. About 5/6 stiches came on the forehead of the injured.
(4) PW-4 Mohammad Ramzan Tantray deposed that he knew the accused. On 13.11.12 the R&B department were constructing the main road from Sonakark to Tantary Mohalla. The accused objected there and the accused stated that they will not give them their land. There was verbal dual between Khazir Mohd Molvi and Gh. Mohi-ud-Din and number of persons were present on spot. Khazir Mohd picked up a stone and throw the same on Gh. Mohi- ud-Din due to which he was injured. Khursheed Ahmad lodged FIR and police started the investigation. The injured was taken to hospital by his children. Police arrested the accused. He signed on stone and also signed the report. the seizure memo was read over to the witness who stated that in his presence no stone was seized but he has signed the seizure memo. To the extent of signature the 7 CRAA No. 16/2017 seizure memo is exhibited as EXPW-4. The injured was taken to hospital where he was given treatment.
In cross examination deposed that he has not given any statement in police. About thirty forty persons were present on spot. At the time of occurrence police was also present on spot. He has not seen any stone today in the Court.
(5) PW-5 Noor Mohammad Raina deposed that he knew the accused. A road is passing from Gund to Fraw on which Sabir Raina was constructing a wall. Police was with the public who was brought by the public on spot. Sabir Raina was told by police to take wall one feet inside. They came near for measuring the road with measuring tape on which Khazir Mohammad picked up a stone and throw it on Gh. Mohd-ud-Din . They took injured Gh. Mohi-ud- Din to hospital where he was referred to Soura. The accused were then arrested by police. Police has not seized anything in his presence but has started taking action. They took the injured to hospital. The statement under Section 161 Cr. PC was shown to the witness who identifies his signatures on the same. What happened to the stone, police know that.
Upon cross examination deposed that police came on spot at 10 AM in the morning. Two police personnels were present on spot. He has not left any land towards the road at the time of demarcation because no land came under this. Before the occurrence Naib Tehsildar has done demarcation on spot. The report of Naib Tehsildar was given to the police. The Naib Tehsildar Fareed Ahmad has not given statement to police. Today he was not shown the demarcation report in court. The occurrence took place between 10 to 10.30 in which Gh. Mohi-ud-Din Tantary was injured. The clothes of the injured were blood strained but in his presence they were not seized by the police. At that time number of persons were coming towards our home. He and other persons were also measuring the road. He does not know when was the wall constructed regarding which police asked Sabir Raina to took the same inside one feet perhaps it was constructed before 8 CRAA No. 16/2017 occurrence. The land of Gh. Mohd Mir is adjacent to the land of Sabir Raina. The stone came from his backside and hit the head of Mohd-ud-Din Tantary. On spot only ten to thirty villagers have gathered. They took Mohi-ud-Din Tantary to Gund hospital at 11.00 Am but he has not gone to Soura with the injured. Khursheed Ahmad Tantary has lodged the report in police at 12.00 O Clock. At that time he was present with the police. He or the villagers have not attacked for dismantling the wall. (6) PW-6 Aadil Ahmad Tantary deposed that he knew the accused. R&B department want to construct a road from village Gund to their village on which accused did not allowed them to work. The accused were demanding compensation to the portion of their land which comes in this road. Then they got the demarcation of the land done on which accused objected and some portion of the land was recorded as "Rah-aam" in the revenue records. Then the villagers asked the accused to leave the road. Then they bring police on spot. The accused present in the court throw a stone on Gh. Mohi-ud-Din due to which left side of his nose was injured. The police took the Molvi Sahib to Gund hospital where from he was referred to SKIMS where X-Ray of Molvi Sahib was done. Some stiches were given in the nose which was also fractured. He remained admitted there for two days. Then accused were arrested by police. His statement was recorded by police in the police station. He gave statement before judge sahib in Kangan. The seized stone was shown to the witness in the court who stated that the stone is not that which was seized from the spot as that was small than this.
In cross examination deposed that he is a labourer. He was also working there as labour on the day of occurrence. He has personally seen that stone was struck to Molvi Sahib. When stone was thrown to Molvi Sahib at that time 4/5 police men were present there. The contractor of R&B Nazir Ahmad was also present. No officer was present on spot. It is true that on spot the villagers and contractor were together constructing the road. It is 9 CRAA No. 16/2017 correct that the accused have constructed their new wall on the old wall. Molvi Sahib was at first given treatment at Gund hospital and after that taken to Kangan. In case police tells that he was not treated in Kangan hospital, same is not true. The X-ray are lying in the house of Molvi Sahib. He has not seen the demarcation report of the patwari today in the court. the stone by which the Molvi Sahib was injured was blood strained but has not seen it today in the court. Police has taken that stone from spot after two days. He gave statement in police after two days. The statement of the police attributed to him is wrong to the extent that injured was straight way taken to SKIMS from Gund. The statement under Section 161 bears his signatures.
(7) PW-7 Ab Razak Raina deposed that he knew the accused. In Gund the contractor was working on the construction of road. The occurrence is about 1 year before. The road was under construction from Gund to Haknar. The accused no.1 refused to give the land and he picked up a stone and throw the same on Mohi-ud-Din Tantary. He fell down on spot and blood oozed. He was taken to hospital where he was given some stitches. Then all the people went to their homes. Police has intervened on spot. He has not given any statement in police but they have only written his name. In cross examination deposed that he does not know the name of the contractor. No engineer, Mistri or any person from the concerned department was present on spot. The accused no.1 had earlier constructed the wall. People had demolished the wall of the accused forcibly. He was not part of the assembly of people. He was going to his land at that time. He has not seen the stone. Police was on spot from 10.00 AM morning. The scuffle took place at about 12.00 PM. On spot ten to thirty people have gathered. Mohi- ud-Din Tantary is his cousin brother.
(8) PW-8 Gh Hassan Tantary deposed that he knows the accused. The occurrence took place on 14.11.2022. Scuffle took place in Gund Tantary Mohalla at about 12.00 noon. The scuffle took place in the vegetable garden of Khazir Mohammad. R&B department was 10 CRAA No. 16/2017 constructing the road which was passing on the side of house of Gh Ahmad Mir and the vegetable garden of accused. The accused Khazir Mohammad was not allowing the road to construct. On spot lot of villagers gathered. In the meanwhile, accused Khazir Mohammad picked up a stone and throw the same on Gh. Mohi- ud-Din. He fell unconscious and was taken to hospital where from he was referred to Srinagar. Later on accused Abida came and stopped the work on road. Mohd Sabir also took part in the scuffle. He has given statement as witness and has no further knowledge regarding the occurrence.
Upon cross examination deposed that police was not present on spot however, came later on. Police came on spot at quarter to twelve. No person of R&B department was present on spot who was the contractor of the road he does not know. He can not tell how many labours were on spot. On that day the labourers from Gund were not working on the road. At the time of occurrence he was going to his fields for work. He also went to police station along with other villagers who have also sit down on protest which lasted for 15 minutes. Before quarrel SHO had gone t the accused and told him to leave way for the road but the accused was not ready to give space for the road as such SHO came back. SHO came to accused at about 11.30 AM and asked him to leave the space. He has not seen any stone today in the court but lot of stones were on spot. In case we had not protested police would have not taken action. The injured complainant is his relative. (9) PW-10 Dr. Surjeet Sing deposed that on 14.11.2012 he was posted in primary Health Centre Gund Kangan. One patient namely Ghulam Mohi-ud-Din Tantary was brought to him by Mohammad Shafi No. 200/Gbl of police station Gund. At that time when the injured was brought before him, his nose was profusely bleeding. Immediately we applied the stitches and thereafter he was sent for ENT check up. In the certificate which was shown to the witness today he stated that when the injured was brought before him, he examined the injured and gave his opinion afer receiving ENT 11 CRAA No. 16/2017 consultation. On the certificate which the witness has seen in the court today, the remarks by ENT consultant are also incorporated as per the witness. The certificate on the file which I have issued bears his seal and signature. Contents of the certificate are true and correct and exhibited as EXPW-10. Blunt injury was visible on the person of the injured but I am not in a position to state with firmness that it was the result of stone throw.
On cross examination by learned defence counsel for the accused states that on careful perusal of the ENT consultation report, there is nowhere mention of any sort of fracture. The injured was examined during day time at 12.36 PM. I did not enter my opinion in medico-legal register. The injured when was brought by police before me besides profusely bleeding from nose, his clothes were blood strained. No stone was shown to me in the court today.
(10) PW-11 Abdul Majid Lone ASI deposed that he knows the accused. On the day of occurrence he was posted in police station Gund. On the day of occurrence he was entrusted the investigation of the case FIR no.51/2012 under sections 307, 341, 323 RPC. He wrote the FIR and went on spot. He was accompanied by other two employees of the police station. On spot he found one injured. He prepared the seizure memo and took the injured to Gund hospital for treatment. On spot he recorded statements f some witnesses. On the basis of the statements of the witnesses the offences mentioned above were prima facie established against the accused. Since the accused had absconded he searched for them and arrested and brought them to police station Gund. The arrest memo was prepared and on spot the site map was prepared. The stone given by the witness was seized and seizure memo prepared. Later on statements of two witnesses were recorded under Section 164-A Cr.PC. From the investigation the offences under Section 307, 325, 341 RPC were established against two accused persons where as offence under Section 341 RPC as established against one accused. Later on after receiving the satisfaction of the investigation , the 12 CRAA No. 16/2017 challan was presented before the competent court against the accused. The first information report was presented in presence of the SHO. Seizure memo bears his hand and signature and the contents are true. The site map is also prepared by him with his hand and bears his signature and the contents are true and is exhibited as EXPW-11. The arrest memo annexed with the file bear his hand and signature and is marked at EXW-11/12. The contents are true and correct. The seized stone shown to him in the court is the same which he seized.
In cross examination deposed that he reached on spot at 12.20. On it took him 10/20 minutes to complete the investigation. For tracing the accused it took him 5 minutes as such were taken into custody by 1.00 PM. In arrest memos the time of arresting the accused Khazir Mohd and Mohd Sabir is not mentioned. Bashir Ahmad had come to police station as such his signature on the arrest memo was taken in police station. What time Shabir Ahmad has put his signature on the arrest memo same is noted the memo. In the contents of the seizure memo EXPW-4 the name of the person who gave the stone is not mentioned. The FIR was registered at 12.15. He received the copy of the FIR at 12.20. He has also mentioned in the daily diary report the time of receiving the report as 12.20. He has also mentioned in the Zemni that he reached on spot at 12.35. As per Zemni he had remained on spot upto 2.00 PM and reached to the police station along with the accused at 2.00 PM. He has not recorded statement of any R&B officer. He has not seized the site map/plan of the road from any officer of any department. He has not weighed the seized stone. He has not send the stone to FSL for expert opinion. He has not received any opinion from the doctor that the seized stolen cold cause death of a person. The clothes of the injured were blood strained but he has not seized those blood strained clothes. Actually, the villagers were willing that the road should pass through the land of the accused.
13 CRAA No. 16/2017(11) PW-12 Mohd Saleem Sub Inspector deposed that on the day of occurrence he was posted as SHO P/S Gund. He knows the accused persons however did not know accused KhazirMohammad. Road widening work was going on by the R&B department. On spot some person hit a stone on the complainant. After concluding the investigation. He has not done any further action in the case. The investigation of the case was done by ASI Abdul Hamid.
Upon cross examination deposed that he after seeing the case diaries has recorded his satisfaction over the investigation. He was not present on spot at the time of occurrence. During investigation the statement of some R&B personnel was recorded however in the final charge sheet the R&B employee was not cited as witness.
6. After the prosecution evidence was closed, the case was posted for recording the statement of the accused as envisaged under section 342 Cr.P.C. The accused in their statement denied the occurrence and the case was posted for advancing arguments.
7. The accused-respondents have been acquitted of the charges for offence punishable under Section 307, 325, 341 RPC.
8. I have heard the arguments advanced at the bar and the material on record has also been perused by me.
9. Mr. Rayees-ud-Din Ganaie, Dy. AG, submits that the trial court has not properly appreciated the evidence produced by prosecution in support of charges framed against the accused. He further submits that the trial court has misdirected itself while appreciating the evidence and recording the findings holding that the prosecution has failed to prove the charges against the accused causing miscarriage of justice. He further submits that there is sufficient evidence on record to prove the charges against the accused, therefore, order of acquittal is required to be reversed.
10. On the other hand, learned counsel for the respondents submits that the finding of trial court does not call for any interference as the trial court has properly appreciated the evidence. He further submits that there is no sufficient evidence to which the trial court could have 14 CRAA No. 16/2017 recorded the order of conviction against the accused. The charges framed against the accused on the basis of evidence and proper appreciation have failed to prove the charges. As there was no sufficient evidence, therefore, the order of acquittal recorded by the trial court does not call for interference.
11. At the outset it will be of essence to evaluate the relevant extracts of the judgment of the trial court that have a bearing on this case and these are reproduced herein below verbatim et literatim: -
"The seizure memo effected by the IO has not been proved during the trial of the case. The complainant himself states that he heard that police has seized some stones. Witness Asad Ahmad states that police lifted the stone from spot after 2 days. and that was blood strained but he has not seen that stone in the court. The witness Gh Mohd Tantray states that no one handed over the seized stone to the police but the police of their own lift that from the spot. After police has written in the seizure memo that they have handed over the stone to them, it is wrong. The witness also stated that police has also seized blood strained clothes of the injured. While as police version is that complainant has already presented the seized stone on spot on the same day. The weight of the seized stone is stated to be 3 Kgs and the prosecution could not satisfy that how said stone could be thrown and if it s thrown on the head of some person how he survives. The injured himself states that police was not accompanying him when he was taken to hospital. He was accompanied by his two sons Khursheed and Muzamil and wife and niece and brother Ab. Ahad and brother in-law Imityaz Ahmad. He further states that he has not given any statement in police. IO of the case himself f states that he received the report in the police station. He registered the FIR and went to spot immediately. On spot he found that one person was injured. He filed form Mazroobi and took him to Gund Hospital. He completed whole investigation on spot within 20 minutes. He further stated that blood strained clothes were presented to him but he did not seize them. If this statement of the IO is taken true in light of the statement of the complainant, then questionarises that if FIR was registered as per version of the complainant on next date of occurrence how could the IO reached on spot and took the injured to hospital. If the version of IO is correct that he took the injured to the hospital then the statement of the injured as well as the complainant and other witness is not correct when they say that it is not police but they personally took the injured to hospital. If all the prosecution witnesses in one version stated that police was already on spot when occurrence took place, then how police has concealed this fact and has disclosed another story. These are such questions which the prosecution was duty bound to answer but they 15 CRAA No. 16/2017 mercilessly failed to establish case against the accused persons, the benefit of which certainly will be given to the accused. Accordingly the accused persons while giving the benefit of doubts, are acquired of the charges leveled against them for the commission of the offence under Sections 307, 341, 325 RPC. Their bail and personal bonds shall stand discharged forth with. The seized property shall be destroyed after the period of appeal is over. The file after due compilation be consigned to records after duce compilation."
12. The core issue that arises for consideration in this case, is whether while recording the judgment of acquittal, the prosecution evidence has been properly appreciated in right and proper perspective. The trial court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be repeated and reiteratedhere again. The trial court, as is clear from the impugned judgment, after taking into consideration the entire evidence adduced by the prosecution, has come to the conclusion that the accused have not committed the crime imputed to them.
13. The well settled law is that the function of the Court in a criminal trial is to find out whether a person arraigned before it as accused is guilty of the offence with which he is charged. For this purpose, the Court scans the material on record to find out whether there is any credible, reliable and trustworthy evidence on the basis of which it is possible to convict the accused and to hold that he is guilty of the offence with which he is charged. The burden to prove the ingredients of the offence is always on the prosecution and it never shifts to the accused.
14. Looking at the instant case from the perspective of what has been stated above, is that on 14.11.2012, the complainant Khursheed Ahmad Tantray S/o Gh. Mohi-ud-Din Tantray R/o Gund lodged a written complaint with the police to the effect that his father along with other respectable persons were monitoring the road widening work by R&B Department from Gund to Haknar. In the meanwhile, the accused-respondents with the intention of killing his father threw a stone on his head resulting into his injury. Due to the intervention of some respectable persons on spot, he was saved from the clutches of the non-applicants.
16 CRAA No. 16/201715. Testing the prosecution case on the touchstone of the evidence of the prosecution witnesses, the impugned judgment is based on the law, reason and logic. It does not call for any interference. All the witnesses as discussed above, have not been emphatic in stating that the accused were the architect and the author of the crime. The judicial precedent reported in the case of Prithipal Singh Vs. State of Punjab, 2012 (1) SCC 10, assumes significance on that count. There it has been held as follows: -
"This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in acquitting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record acquittal. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence..."
16. The law that has been settled in the aforesaid judgement is that as a general rule the court can and may act on the testimony of a single witness, provided he is wholly reliable and there is no legal impediment in acquitting a person on the sole testimony of a single witness, but if there are doubts about the testimony, the court will insist on corroboration. It is not number or quantity, but quality that is material and time-honoured principle is that evidence has to be weighed and not counted. So, the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on the value, weight and quality of the evidence,rather than on the quantity, multiplicity or plurality of the witnesses. Thus, it is open to a competent court to fully and completely rely on a solitary witness and record acquittal and conversely it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.
17 CRAA No. 16/201717. Applying the ratio of the law laid down, as aforesaid, to the facts of the instant case, the statements of witnesses discussed above are not sufficient to convict the accused. There is infirmity in their statements that render them weak, fragile, incoherent or improbable.
18. The argument of the counsel for accused that there are discrepancies in the statements of the witnesses is an argument when tested on the touchstone of the instant case. Prosecution has failed in discharging its burden to prove that the accused have committed the crime imputed to them. There is no merit in this appeal. It entails dismissal as a consequence of which the same is dismissed and the judgment of acquittal recorded by the trial court is maintained and upheld.
19. The record of the trial court, if summoned, be sent down along with a copy of this judgment.
(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 06.11.2023 Manzoor Whether approved for reporting? Yes/No