State Of Jammu & Kashmir vs Zakir Hussain And Others

State has preferred this appeal against the acquittal order dated 14.06.2006, passed by Judicial Magistrate Ist Class (Sub-Judge) Bhadarwah, whereby the respondents herein have been acquitted in case FIR No.153 of 1999 registered for commission of offences under Sections 382/379/332 RPC and Section 6 of Forest Act.

Appellant-State has challenged the impugned order dated 14.06.2006 on the ground that trial court has not properly appreciated the facts of the case; that the impugned judgment is based on surmises and conjectures; that the prosecution has proved its case beyond any reasonable shadow of doubt and even seizures have also been proved.

I have heard learned counsel for the appellant-State and gone through the judgment of the court below.

The case of the prosecution is that on 05.08.1999, Jhanghir Iqbal-Forest Guard was on patrolling duty in forest, and when he reached at Zani Dal at about 4 P.M., he found accused Zakir Hussain, Adil Hussain, Tariq Hussain and Rafique Hussain cutting Deodar Trees. He stopped them from cutting the same, but all the accused persons with a criminal intention in presence of Din Mohd S/o Abdul Gani Sheikh attacked him. Accused Adil Hussain, who was having an axe in his hand hit him with the said axe resulting thereby his left hand was injured. All the accused persons assaulted him and he was injured. Accused persons also snatched his wrist watch and threatened him that they will kill him and his Forester.

On the basis of complaint filed by Jhanghir Iqbal, FIR No.153/1999 for commission of offences under Sections 382/379/332 RPC and Section 6 of Forest Act was registered in Police Station Bhadarwah. Investigation was entrusted to Rattan Lal, S.I. Police Station, Bhadarwah. After conclusion of the investigation, challan was produced before the court below. Accused were charged sheeted on 30.11.2000 and they denied accusation.

Prosecution thereafter examined PWs Jhanghir Iqbal, Din Mohd, Mohd. Rafique, Ghulam Rasool Tak, Ahsan Bhatt, Barkat Ullah, Bashir Ahmed and Rattan Lal, as witnesses. After recording the statements of the accused persons under Section 342 Cr.P.C, accused persons produced D.W. namely, Bashir Ahmed as their witness.

The Judicial Magistrate Ist Class (Sub-Judge) Bhadarwah after hearing learned counsel for the parties and after conclusion of the trial, vide order dated 14.06.2006, acquitted the accused persons. The relevant part of the order reads as under:-

As per the complaint Ex.P.W.-JI-2, F.I.R Ex.P.W.-SR-3 and the challan presented by the police in this court while the complainant Jhanghir Iqbal (P.W.1) was patrolling in compartment no. 50/51, had found at 4 P.M. that Zakir Huasain, Adil Hussain, Tariq Hussain and Rafique Ahmed, accused herein, were cutting Deodar trees at Zani Dal and when he forbade accused persons from cutting the same, the accused persons assaulted him, accused Adil Hussain hit him with an axe resulting thereby his hand was injured and was bleeding, it is also the case of prosecution that the accused persons had snatched the watch of the complainant and had also threatened that they will kill him and his forester if they will again come to the forest, whereas the complainant P.W.1 Jhanghir Iqbal in his statement recorded in the court on 30-05-2001 has stated that when he reached at the place of occurrence, the accused persons had already cut the trees, he has further stated that words written in the complaint as well as in F.I.R. that the accused were cutting the trees are not correct.

P.W.-2 Din Mohd. who as per the prosecution case was accompanying the complainant and is an eye witness in this case, in his testimony has stated that the accused persons were making scants at Zani Dal and they had quarreled with the Forest Guard, Adil Hussain had hit Jhanghir Iqbal with an axe on his head, but Jhanghir Iqbal saved his head by his hand resulting thereby there was bruise on his hand and the accused had fled from the spot. The said witness i.e. P.W. Din Mohd. in his testimony has further deposed that there was quarrel when P.W-1 Jhanghir Iqbał had impressed hammer mark on the scants.

P.W.-1 complainant in his testimony has deposed that police had gone at the place of occurrence on the next day of occurrence and had seized saw and bark, from the place of occurrence and has prepared seizure memo Ex.P.W.JI in his presence. In his testimony he has further deposed that on the next day of occurrence the police had recovered 10 scants (nag) from the bushes and seizure memo regarding the same was prepared whereas the other eye-witnesses i.e. P.W.2 Din Mohd. has stated that the seizure memo regarding the saw and bark was prepared in the police station. As per the statement of P.W.1 Jhanghir Iqbal his hand was injured, was bleeding and the blood was lying on his shirt also but as per the statement of P.W.2 Din Mohd. there was small bruise on the hand of complainant and the shirt was not blood stained.

As referred above complainant Jhanghir Iqbal in his testimony has deposed that on the next day of occurrence on 06-08-99 the police had recovered ten scants of Deodar trees from the bushes at the place of occurrence and had seized the same, whereas as per seizure memo ExP.W.-JI, ten scants i.e. of 10" x 10" x 5" =7 nos green and 10" x 10" x 5"=3 nos dry scants were seized by the forest guard on 16-08-99 and as per the seizure memo Ex.P.W.-DM the aforesaid 10 scants were handed over by Mohd. Rafique S/o Abdul Gani Shiekh R/o Halia Tehsil Bhadarwah to police on 24-08-99 and the police had prepared seizure meno on 24-08-99.

P.W.3 Mohd. Rafique on whose supurdnama the Forest guard had kept the said ten scants of deodar trees, in his testimony has deposed that he does not know anything about the occurrence nor he has any knowledge that from where the Forest Guard had brought those scants which were kept on his supurdnama.

As per the prosecution case the accused had forcibly snatched the watch from complainant Jhanghir Iqbal at the place of occurrence at Zani Dal whereas as per the statement of P.W. 5 Ahsan Bhut who is witness to seizure of watch seized in this case has deposed that while he was sitting in the shop accused Zakir Hussain and Tariq Hussain had come there for purchasing some provision, Jhanghir Iqbal and Ghulam Rasool i.e. complainant Forest Guard and P.W-4 Forester who had prepared the inspection note had come there and started quarrelling with each other in the said scuffle between the accused persons, complainant and the Forester the watch of Jhanghir Iqbal had fallen down and Jhangir Iqbal had told him to handover the same to police. Accordingly he had handed over the same to the police, which clearly shows there are contradictions and discrepancies in the statements of the aforesaid Jhanghir Iqbal complainant. P.W.-2 Din Mohd., P.W.5 Ahsan Bhut which create a doubt on the veracity of PW-1 Jhanghir Iqbal and P.W 2 Din Mohd.

The prosecution has failed to explain the delay caused in the seizure of the aforesaid timber (10 scants) of deodar tree as the occurrence is of 5th Aug, 99 police has gone at the place of occurrence on 06-08-99, prepare the site plan of the place of occurrence Ex-PW JI but had seized the scants only on 24-08-99. As per the statement of P.W.1 Jhanghir Iqbal and P.W-2 Din Mohd. the accused were found making scants out of deodar trees and Jhangir Iqbal had impressed hammer on the said scants on the same day i.e. on 05.08.99, but it is strange to note that why he had not seized the said scants on the same day or next day of occurrence when the police had come on spot and why he had seized scants on 16th Aug, 1999 i.e. after a period of 11 days of the occurrence. Prosecution has failed to explain delay caused in seizure of the said scants.

P.W 4 Ghulam Rasool Forester Block Dandi who had conducted the inspection of the damage caused to the forest, prepared inspection note Ex.P.W.-GR on 18-08-99, in his testimony has deposed that occurrence is of May 1999 and he had conducted inspection of the forest on the instructions/information of Jhanghir Iqbal Forest Guard, further stated that accused persons were not present at the time of said inspection of the forest. As per the statement of the accused persons recorded u/s 342 Cr .P.С. and the statement of defence witness Bashir Ahmed, the accused persons had demanded their wages for carrying the scants of Forest department from Jhanghir Iqbal (forest guard) and Ghulam Rasool (forester) on the shop of Ahsan Bhut (P.-5) upon which there was quarrel between them and the accused Zakir Hussain was injured in the said incident.

From the facts and circumstances of the case it appears that prosecution has failed to prove offences u/s 332/382 RPC as the prosecution has failed to prove that due to the alleged occurrence complainant was prevented from dis-charging his duties and also that accused had committed theft that they had made preparation for causing death, hurt or restraining fear or death to the complainant and P.W.-2 Din Mohd. in order to committing of such theft or the effecting of his escape after committing of such theft.

In State Versus Rajiv Sahni and ors, 2004 (2) JKJ 636 (HC) the Hon‟ble High Court of Jammu and Kashmir has held:

"...........In order to offence under Section 307, 332, 353/34 R.P.C, it was incumbent upon the prosecution to prove that when the alleged occurrence took place, the complainant was discharging his lawful duties and the accused by driving the vehicle towards the complainant and hit him, as a result of which, the complainant sustained injured and the accused thereby prevented and deterred the public servant from the discharge of his duty. Neither any documentary or oral evidence has been placed on record by the prosecution to prove these essential ingredients of the offence, so as to being a nexus between the accused and the commission of offence..."

Prosecution has also failed to establish offences u/s 379 and 6 Forest Act against the Accused.

In A.I.R 1961 J&K 55, it has been held:

"where the petitioners were convicted under Sec.6 on the allegation that they felled three deodar trees in a demarcated forest.

There is not even iotas of evidence to show that the boundaries of this forest had been demarcated by means of stone pillars or masonry work or any other conspicuous mark. It follows therefore that the prosecution has not been able to show that the trees were cut from demarcated forest. The result is that no offence falling under S.6 of the Forest Act can be said to be committed in the present case."

In view of the facts and circumstances of the case when there are contradictions and discrepancies in the statements of P.W.-1 Jhanghir Iqbal, P.W-2 Din Mohd, PW.3 Mohd. Rafique, P.W.4 Ghulam Rasool Tak, P.W.-5 Ahsan Bhut and when the prosecution has failed explain the delay caused in seizure of scants and also there are two versions of the occurrence, it can be safely said that prosecution has failed to prove its case beyond reasonable doubt and connect the accused with the commission of offences as such accused is entitled to benefit of doubt.

Hence this challan is dismissed, accused are acquitted of the charges leveled against them u/s 382/379/332 R.P.С. 6 Forest Act. They are also discharged from their personal and surety bonds. Challan be consigned\d to records after due completion."

Law with regard to appeal against acquittal is now well settled. The scope of power of appellate court in case of acquittal appeal has been highlighted by Apex Court in AIR 2014 SC 2200 case titled „Muralidhar alias Gidda & anr. Vs. State of Karnatka‟, which read as under :-

"10. Lord Russell in Sheo Swarup v. King Emperor AIR 1934 Privy Council 227, highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.

As early as in 1952, this Court in Surajpal Singh v. State AIR 1952 SC 52 while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu v. State AIR 1954 SC 1, Madan Mohan Singh v. State of U.P. AIR 1954 SC 637, Atley v. State of U.P. AIR 1955 SC 807, Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Noor Khan v. State of Rajasthan AIR 1964 SC 286, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, Lekha Yadav v. State of Bihar (1973) 2 SCC 424, Khem Karan v. State of U.P. (1974) 4 SCC 603, Bishan Singh v. State of Punjab (1974) 3 SCC 288, Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228, K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, Tota Singh v. State of Punjab (1987) 2 SCC 529, Ram Kumar v. State of Haryana 1995 Supp (1) SCC 248, Madan Lal v. State of J&K (1997) 7 SCC 677, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, C. Antony v. K. G. Raghavan Nair (2003) 1 SCC 1, State of Karnataka v. K. Gopalkrishna (2005) 9 SCC 291, State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and Chandrappa v. State of Karnataka (2007) 4 SCC 415. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and

(iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

In 'Ghurey Lal v State of U.P.‟ (2008) 10 SCC 450, the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with what we have observed above."

From bare perusal of judgment passed by court below and when it is read with evidence on record of trial court, it is evident that findings of court below neither suffer from infirmity of law nor of facts. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offence charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the establishment of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all due diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. There is inevitably long distance to travel between 'may be true' and 'must be true'. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.

In the present case, there is ample of contradictions in the statements of witnesses with regard to seizure of scants, as PW Jhanghir Iqbal (complainant) has stated that, the scants were seized and seizure memo was prepared on spot on next day of occurrence, whereas another eye witness, who was with complainant PW Din Mohd has stated that seizure memo of scants was prepared in police station; the date of occurrence is 05.08.1999; whereas the seizure memo EXPW-DM is dated 24.8.1999. There is also contradiction in statements of PWs Din Mohd and Jhanghir Iqbal with regard to staining of shirt of complainant due to injury inflicted by accused. PW Jhanghir has stated that due to axe blow, his shirt was blood stained, but PW Din Mohd has stated that shirt of complainant was not stained with blood. PW Mohd. Rafiq, on whose superdnama scants were kept, has stated that he does know anything about the occurrence. There is also contradiction with regard to seizure of watch of injured/complainant; as per case of prosecution, watch of complainant was snatched by accused at the place of occurrence; whereas witness to seizure of wrist watch PW Ahsan Butt has stated that he was sitting in the shop, accused Zakir and Tariq came to his shop for purchase of articles; Complainant Jhanghir and Ghulam Rasool came there and started quarreling with each other; during scuffle watch of complainant fell down and complainant asked him to handover the watch to police; he accordingly handed over the same to police. In this way, story of prosecution has been belied by prosecution witnesses, themselves.

In view of above discussion, I am of the considered view that reasons given by trial court while acquitting the accused are supported with laws narrated in impugned judgment. Accordingly, this appeal is dismissed.