State vs Ali Rather and Others

Syed Bashir-Ud-Din. J.

Respondents-accused Ali Rather and Mohd. Rather were booked for the offence of committing mischief by fire to complainant's residential

house at Ichhgam District Budgam. This occurance is stated to have taken place on the night intervening 10/11th of September, 1992. On full

dress trial, while evidence was led by the parties, after hearing the accuseds have been acquitted by District & Session Judge (Special Judge) for

the offence u/s 436 RPC.

Against this judgement state of J & K has filed this acquittal appeal mainly on the ground that the prosecution evidence has not been properly

appreciated. The eye witness account by the witness has been erroneously not believed. Against accurred there is sufficient and direct evidence.

There has not been delay in lodging FIR.

Mr. Kawoosa submits that the accused AH Rather as verifired by Mr. J.A. Kawoosa, AAG is dead so appeal against him abates within the

meaning of Section 431 Cr.P.C. The appeal is taken up against the other accused Mohd. Rather .

We have heard the Counsel for the parties, perused the record and consider the matter .

Prosecution has examined besides the complainants seven witnesses and the accurreds whose defence is one of the denial has examined three

witnesses in defence. We find from record that all the witnesses including complianant are closed relations & Partison witnesses except Head

Constable who is just a formal witness. There is evidence to show that there was dispute between the parties earlier to the occurance & have

ambitered relations. Parties did expect some mischief from each other. It is in this background that all the relation witnesses have spoken differently

with regard to the identity of the accused at the time of occurance. It is in evidence that night of occurance 10/11th Sept., 1992 was a dark night

and the light had gone out. Thiugh four persons were accurred & named in the accurred FIR, against only two accuseds challan was produced in

court. Independent eye witnesses have not been examined. Neighourers of compliantant the eye witnesses to the occurance named so by

compliant and the prosecution witnesses as Ali Gadda, Hassan Gadda, Abdullah Nanwai and Mohd. Nanwai have not been produced in court

and their evidence is not at all tendered during trial. It is not explained how the witnesses and complianant woke up in the mid of the night only to

see that the complainant's house is set on fire. The complianant's theory of honking of horn by a Taxi as the cause of the awakening, appears

inprobable in the totality of facts and circumstances and in any case is a suspicious circumstance. The delay in lodging FIR has not been as well

satisfactorily explained. Apart from the genuineness of the defence taken, evidence adduced by prosecution with regard to its theory is neither

cogent nor sufficient. In the context of partisan relation witnesses, it has been observed in Masalti Vs. State of U.P., .

""....... there is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very

careful in weighing such evidence. Whether or not evidence strikes the court as genuine, whether or not the story disclosed by the evidence is

probable, are all matters which must be taken into account. But it would, we think be unreasonable to contend that evidence given by the witnesses

should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and

murders are committed, as a result of enmity between such factions, criminal court have to deal with evidence of a partisan type. The mechanical

rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as

to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence

should be rejected because it is partisan cannot be accepted as correct.....

In result, on the aforesaid view, we have taken of the matter, there is no merit in this criminal acquittal appeal, which is accordingly dismissed.