Mohammad Muzaffar vs State Of Jammu & Kashmir

This revision petition has been filed against judgment dated 10.04.2010, passed by learned Sessions Judge, Ramban whereby the appeal filed by the petitioner against judgment dated 26.02.2007 passed by Judicial Magistrate 1st Class, Gool, in FIR No. 05/2005 for commission of offences under Section 506 RPC, has been dismissed.

In the petition, it is stated that both the Courts below have committed error in appreciating the evidence and ignored the law cited while passing conviction. It is stated that there is no evidence regarding the delivery of the alleged letters, as alleged in the FIR. It is further stated that the only evidence which has been made the basis for convicting the petitioner- Mohd. Muzaffar is the contents of the FSL report which is a weak kind of evidence.

Learned senior counsel for the petitioner states that alleged hand writing obtained before the Naib Tehsildar is of one Mohd. Zaffar and not of Mohd. Muzaffar, whereas the criminal proceedings have been launched against the petitioner -Mohd. Muzaffar. It is stated that as per the prosecution story, the alleged letters were received by the complainant prior to the filing of the impugned FIR. It is further stated that power of Investigating Officer to obtain the handwriting of the petitioner for comparison was questioned not only before the trial court but also before the Appellate Court, but both the Courts have not given any finding on the said argument.

I have considered the rival contentions of the learned counsel for the parties and also perused the record.

From the perusal of records of courts below, it is evident that- the prosecution case against the petitioner is that he delivered one letter to Mst. Haneefa through PW Shahzada Bano whereas one letter was received by her through mail. Both the letters bear the emblem of the banned militants' organization Hizabul Mujahideen. The accused is alleged to have demanded a sum of Rs.10,000/- and bluish cloth for two „pherans' (name of Kashmiri gown used by people for protection from cold). Money was required to make good loss of rupees three lakhs which were lying with Shaheed Bilal and were lost. This money was needed to accomplish the 'task assigned to the outfit & for implanting a black marble stone on the grave of Shaheed Tauseef. In the second letter the complainant Mst. Haneefa was threatened telling her that, ".....By accepting the services of Hind Force' you consider yourself as high dignitaries...we have remedy for people like you, We warn you to deliver Rs.50,000/- to 'Abdul Ghani' shopkeeper lest you and the inspector should face consequences. We will not spare people like you even if you go underground. If this information is disclosed to anybody, the police will face the consequences." The matter did not end here. She was assigned another task through the impugned letters asking her to provide ten packets of small cells otherwise it was threatened that she would be done to death. One of the letters was delivered to Smt. Haneefa through Ms.Shazada Bano D/o Mohd Abdulla Mughal r/o Mohila, presently residing at Gool. It is also the prosecution case that even husband of Mst Haneefa Begum is an employee of IRP II Bn (police) and feeling intimidated by the threats extended by the accused, who apparently appeared to be member of the banned outfit HM and sensing conspiracy of waging war against the State, the complainant lodged the FIR. Police registered FIR No.5/2005 under section 121-A/124/ 212/186/506 RPC. During the investigation, police apprehended the accused and after concluding the investigation, found offences proved against him. Police after completing the investigation produced the challan before JMIC Gool, who committed the case to Additional Session Judge Ramban as offence under section 121-A RPC was exclusively triable by Special Judge; Additional Sessions Judge Ramban on 20.12.2005 discharged the accused from offence under section 121-A /124 /186 RPC in view of bar under section 196 Cr.P.C and also found that no offence under section 212 RPC was made out from the evidence collected during investigation. Court of Additional Sessions Judge sent the file to JMIC GooL for trial after framing charge under section 506/RPC only.

Prosecution accordingly produced PWs Haniefa Begum-complainant, Manzoor Hussain, Shahzada Bano, Mohd. Farooq, Atlaf Hussain (FSL) and Zahoor Ahmed I/O as prosecution witnesses, and trial Court convicted the accused appellant on 26.02.2007 and sentenced him to undergo rigorous imprisonment for one year and fine of Rs.2,000/- under section 506 RPC .

Aggrieved by said conviction and sentence, accused preferred an appeal before Additional Sessions Judge Ramban, who also on 10.04.2010 upheld the conviction and sentence passed by JMIC Gool and dismissed the appeal.

Both the courts below have held that the prosecution has proved its case beyond reasonable doubts. Operative part of order dated 10.04.2010 passed by Additional Sessions Judge, Ramban reads as under:-

"Learned trial court has taken every care to appreciate fact minutely & this court finds no error, illegality or infirmity in the approach adopted by the learned trial court in arriving at the conclusion which has been assailed before this court. After reproducing Section 503 RPC, learned Magistrate has applied law in right perspectives in order to hold the appellant guilty of criminal intimidation. He has rightly pointed that "it is essence of offence of criminal intimidation that there is the effect which the threat is intended to have upon the mind of the person threatened and before it can have any effect upon his mind it must be either made to him by personal threatening or communicated to him in the same way."He further appreciates in the same paragraph that "In the present case the complainant has been threatened by accused by making demands from her as alleged in the letter and even the threat has been communicated to the complainant by virtue of letters and the threat tendered by the accused upon the complainant has also been put into execution. In the present case the accused had threatened the complainant to do away with death (sic) her life also as per communication made to the complainant through the letters as alleged in the story of the prosecution The judgment passed by learned JMIC Gool on 26.02.2007 is well reasoned judgment & the conclusion arrived at by him is unassailable. I do not find any infirmity in the Impugned judgment in order to interfere with & set-aside the same. I uphold the impugned judgment of conviction passed by learned trial court Gool under S. 506RPC. I also do not propose to alter the sentence passed under Section 506 RPC. The appeal cannot be accepted on any grounds canvassed before this Court, which is accordingly dismissed. The appellant is on bail on account of suspension of sentence at the time of filing appeal. He is present in the court. His bail is cancelled. He shall be taken in custody immediately & forwarded under rules to serve the remaining sentence in view of the judgment of the learned JMIC Gool dated 26.02.2007. Trial court file be sent back with a copy of this order. A copy of this order shall be furnished to the accused under law. This court file shall be consigned to records after its due completion."

Mst. Haneefa was posted as SGC at P/S Gool at the relevant time. She presented two letters on 12.01.2005, at Police Station, Gool for registering a case of conspiracy against State and criminal intimidation etc. at the hands of appellant and his underground anti-national elements, on the basis of which FIR No.05/2005 u/s 124, 121-A and 506 RPC came to be registered. After usual investigation a challan was presented before the learned JMIC Gool, who committed the same for trial by Sessions Judge as the offences under sections 121-A and124 RPC are exclusively triable by that court. Learned Additional Sessions Judge Reasi, however, discharged the appellant for the alleged offence under sections 121-A & 124 RPC & remitted the case back for trial by Judicial Magistrate Gool under section 506 RPC.

Revision power of High court has been provided in section 435 Cr.P.C. which reads as under:-

"435. Calling for records to exercise powers of revision. -

The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation :- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of section 436."

From bare perusal of this section, it is evident that High Court has limited power to see the correctness, legality or propriety of any finding, sentences or order, recorded or passed by subordinate courts. This section empowers revisional court when calls for the record in exercising powers under Sec. 435 Cr.P.C, it is expected to examine the records for the purpose of satisfying itself about legality, propriety and correctness of the order passed and also about the regularity of the proceedings. Revision is the act of examining again in order to remove any defect or grant relief against irregular or improper exercise or non-exercise of jurisdiction by a lower court. Revision is like re-working and re-writing. Revision means the action of revising, especially critical or careful examination or perusal with a view to correcting or improving.

In State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, it has been held as under:

"5. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice."

In State of Maharastra v. Jagmohan Singh Kuldip Singh Anand and ors. reported in AIR 2004 SC 4412, the Court said as under :

"22. The Revisional Court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in section 410 CrPC. Section 401 CrPC is provision enabling the High court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or sessions Court, as the case may be , "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 CrPC conferring power of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."

I have gone through the evidence recorded during course of trial for limited purpose, in order to see as to whether there is any perversity of facts in the judgments of courts below.

From the perusal of evidence, it is evident that complainant-Haneefa has categorically proved that PW Shezada Bano delivered to her letter containing demands of Rs.10,000/- and 16th mts clothes for tailoring of Pherens (gown) on behalf of militant Naseer Hussain with threat that if she did not obey the demand of providing black marble stone to be planted on grave of militant Gani Malik, she may be done to death; she has also proved the fact that on 12.01.2005 when she was coming back from patrolling accused/appellant demanded the money and articles mentioned in that letter; on her denial accused caught hold of her from throat and threatened that he could do anything in the name of militancy and at gunpoint. She has proved lodging of FIR (EXPW -HB) and seizing of letters containing threat (EXPW-HB/1): prior to that she also received a letter from militant organization for demand of Rs.50,000/-. PW Shazada Bano has also proved the fact that one Farooq Ahmed tailor-Master called her in bazaar and gave him letter (EX PW-HB/1) for delivering it to complainant on relevant day; PW Manzoor Ahmed the husband posted as HC in IRP Bn. has also proved the seizure memo (EX PW-HB/1) of two letter received by his wife . However, PW Mohd. Farooq has been declared hostile. PW Mohi-ul-din Bohra Naib Tehsildar at the relevant time has stated that on 16.05.2005 the accused was produced before him; police in his presence obtained specimens writing S-1 to S-3; he has proved certificate EXPW-MD and EXPW-MD-1. The most important witness PW Altaf Hussain (Scientific Officer-FSL) has proved the fact that contents of seized letters were in the handwriting of accused-appellant. He has proved his certificate EXPW-AA, wherein he has stated that specimen writing obtained during investigation S-1 to S-2 tallied with the question handwriting on letters Q-1 to Q-5. Zahoor Ahmed is I/O who has conducted the investigation.

In this way, there is no perversity of facts in concurrent finding and conclusion of conviction arrived at by courts below.

First ground taken by counsel for petitioner is that FSL report is a weak kind of evidence, so it cannot be relied for conviction of petitioner; this argument is without any base, because in terms of section 45 of Evidence Act, the opinion given by handwriting expert, is relevant fact in the case, where court has to form an opinion as to whether disputed handwriting is of accused or not; therefore, his evidence has to be read along with other evidence on record. In present case, there is sufficient other substantial evidence beside expert opinion of FSL with regard to handwriting of petitioner, that he wrote the letters in question. Another argument of counsel for petitioner is that alleged hand writing obtained before the Naib Tehsildar is of one Mohd. Zaffar and not of Mohd. Muzaffer, so petitioner cannot be convicted. I have considered this aspect of matter and gone through the evidence on record. Admittedly in the case accused/petitioner was arrested and was produced before Niab Tehsildar for obtaining specimen handwriting; accused gave his handwriting before EMIC; and on specimen handwriting it has been written as Mohd. Zaffer and not Mohd. Muzaffer. The appellate court below has categorically held that it was accused Mohd. Muzaffer who was produced before EMIC at the time of obtaining the specimen writing; and simply because there may be slip of pen in writing „Zaffer‟ instead of „Muzaffer‟, it cannot be held that some other person was produced; it has also been held by appellate court that accused /petitioner in his statement recorded under section 342 Cr.P.C., has admitted this aspect of matter. Further petitioner has no where tried to establish this defence while framing of charge or during trial by cross examining the EMIC or I/O. I have gone through the statement of the petitioner recorded under Section 342 Cr.P.C. wherein he has admitted the fact of obtaining of specimen writing before EMIC. No other law point has been brought to the knowledge of this court.

In view of above, there is no merit in this petition, it is dismissed. There is also no mitigating circumstances for sentencing the petitioner with fine only instead of imprisonment as argued by counsel for petitioner; because petitioner has criminally intimidated a woman, who is working in belt force by threatening her of causing death on the name of banned out lift terrorist organization. Trial courts‟ files be sent back, with direction to issue warrant against petitioner for undergoing the rest of sentence.