Syed Hafiz Hah vs Conservator of Forests and Ors.

This is an application under article 32 (2A) of the Constitution of India and under section 103 of the Constitution of Jammu & Kashmir State.

The relevant facts which have given rise to this present application briefly stated are as below :

The petitioner was working against a permanent post as Campclerk to the D.F.O. Plantation Division, Srinagar, on 268 1966 when he was

suspended vide 'Annexure 'A' to the petition. There are many matters which have been narrated and raised in the petition but it is not necessary to

go into them in detail because the position is that the suspension order continued and the enquiry which was being held was not terminated, the

petitioner came up to this Court in a writ petition No : of 148 of J969 and there he also made a similar grievence that he was under suspension and

the enquiry was not being; terminated and that he was naturally not getting the full salary for that period The matter came up before this court in the

aforesaid writ petition on 1441970 and there this order was record that the learned Deputy Advocate General has made a statement at the bar to

the effect that the respondent will conclude the enquiry against the petitioner as early as possible without any delay and it was on this assurance

held out by the Deputy Advocate General, the petitioner did not want to press the petition and that petition was dismissed as not pressed. A long

time hereafter again elapsed with the result that the enquiry was not concluded It may also be mentioned here that in the counter affidavit filed on

behalf of the State, circumstances have been narrated to show as to how things were out of control and the enquiry could not be concluded. Now

whatever may be the position was that the enquiry had not been concluded find it has not yet been concluded. The petitioner there after on

21101971 filed this present petition n this present petition the in in grievence was to the effect that it a protected enquiry, which was against the

principles of natural justice was being carried on and the petitioner was being put to a lot of harassment and since the suspension was in force, he

was not getting his full salary also A counter affidavit has been filed on behalf of the State and in para 4 it has been stated that in view of the fact

however, that the enquiry got prolonged the suspension order against the petitioner has been withdrawn and he has been reinstated as already

intimated to the on able court. I may refer in this concession to the aforesaid order which is order. F. O. No . 50 of 1972 dated 2511972 and

reads as under :

As directed by the Chief Conservator of Forests, Jammu Shri Hafiz ullah clerk who was suspended pendiag enquiry into the case of irregularities

noticed in the Trial Range of Plantation Division Kashmir South Circle, is hereby reinstated. This order shall, however, be subject to the final result

of the aforesaid enquiry. The matter of allowance payable to Shri Hafiz Ullah clerk for the period of his suspension shall also be decided when the

aforesaid enquiry is concluded.

In this connection the following orders of posting and transfers are issued :

i) Shri Haflz Ullah clerk at present attached to Plantatation Division is posted in the Demarcation Division Srinagar vide Sh Ab. Rashid Clerk.

ii) Shri Abdul Rashid Clerk is transferred from Demarcation Division to the Circle Office vide Shri Mohamad Sultan range Clerk.

iii) Shri Mohd Sultan Range clerk on deputation from Demarcation Division will report back to his Division

This order will take effect immediately. S. No. (1) will move first.

Sd/ Hafizullah, Conservator of Forests, Kashmir South Circle

This order clearly shows that the suspension order as against the petitioner has been vacated and he has been reinstated. Since there has been

such a reinstatement the petitioner, therefore cannot have any grievance with regard to the second of this order which is to the effect that the matter

of allowance payable to Shri Haflz ullah for the period of his suspension shall also be decided when the aforesaid enquiry is concluded under the

relevant rules an officer under suspension is entitled to certain portion of allowance and 1 presume he must be getting it. In case he has not been

receiving the same, he is entitled to get the same. During the period of suspension, an officer is not entitled to full salary and by this order quoted

above, this full salary has not been allowed and this matter will be decided after, the conclusion of the enquiry. The learned counsel for the

petitioner has submitted firstly that the protected enquiry itself is illegal and stands vitiated on account of flagrant violation of the principles of natural

justice and therefore the whole enquiry should be quashd.

Now as far as this contention is concerned, the learned counsel appearing for the State has submitted that there has been no such prayer in the

petition' A perusal of the petition shows that there is no such prayer and reading the entire petition also it is clear that there is no such relief sought

that there should be a quashing of the entire proceedings. Apart from this even if such a prayer had been there, I think that a Government is entitled

to hold enquiry against its officers and proceed with the enquiry but naturally having regard to the principles of natural justice, the powers of the

Government are not so wide and unfettered that it can put an officer to harassment and protect the enquiry for an indefinite period There should be

some reasonable time limit to the same and I am therefore not inclined to allow this prayer which has been made in the course of the hearing of this

petition, to quash the whole enquiry,

The second contention which has been raised by the learned counsel for the petitioner is that since the order of suspension has been set aside

and the petitioner has been reinstated it means therefore that the order of suspension was invalid and as such he is entitled to the full salary for the

period. I have already quoted above the order by which the suspension of the petitioner has been set aside and it is clear that the Government or

the Department concerned has not yet finally decided about the allowance which the petitioner would be entitled for the period of suspension and

that has to wait until the conclusion of the enquiry. In case the petitioner is exonerated from all the charges he would be entitled to receive the full

salary for the period and in case he is nt exonerated, then naturally the order would be otherwise I have considered this aspect of the matter and I

do not think it would be just proper at this stage to interfere with the order and pass any direction that full salary for the period of suspension would

also be allowed to the petitioner.

6, I have already indicated above that there should be a reasonable time limit within which the enquiry should be concluded' and after bearing

learned counsel appearing for both the parties, I trunk that the reasonable time within which the enquiry can and should be conclude is a period of

six months from the date of this order. In case the enquiry is not concluded within this period, the petitioner would be at liberty to approach this

court.

With these observations this writ petition is dismissed but in the circumstances of the case, especially when the suspension order has been set aside

I would not pass any order as to costs.

Srinagar, August 16, 1975

Sd/ Judge

The appellant, Rajender Kumar, was committed by Judicial Magistrate 1st Class, Kishtwar. to stand his trial before Sessions Judge, Bhadrawah

under sections 302 and 324 R. P. C. The Sessions Judge has found him guilty on both the counts, & on conviction sentenced him to eight years

rigorous imprisonment u/s 302 R. P. C. and to two years further rigorous imprisonment u/s 324 R. P, C. both the sentences to run concurrently.

Whereas the appellant by means of this appeal, has challenged his conviction & sentence, the State has also filed a revision petition seeking

enhancement of the sentence passed on him. This judgment will dispose of the appeal as well as the revision petition.

But briefly, the prosecution story goes like this on 1211973, at about 930 P. M., while P. W. Khushal Chand was on his way to collect ambers

for his press from the place where the residents of village Malta had burnt the ceremonial lori fire, he was accosted by the appellant, who wanted

to settle some old score with him, as P. W. Khushal Chand had, according to him brought humilation to appellant's father during the Jan Sangh

elections. During the course of altercation that ensued, the appellant took out a knife from his pocket and inflicted an injcry on the left shoulder of

P. W. Khushal Chand. On this P. Ws Jodh Ram, Chaman Lal and Ved Prakash and deceased Anant Ram, who too had in the meantime reached

there, intervened and separated the appellant and P. W. Khusbal Chand from each other. While the appellant was held by P. Ws, Chaman Lal and

Ved Prakash, P. W. Khushal Chand was taken by P, W. Jodh Ram towards the house of Hufcuna Chard. The appellant, somehow or the other,

got himself freed from the grip of P. Ws. Chairman Lal and Ved Prakash and ran after P. W. Khushal Chand. He again attempted to hit him with

the knife he was holding, but all in vain and the knife instead of striking P. W. Kbushal Chand, struck the outer door of Hukum Chand's house.

Seeing this, the deceased warned the appellant of the serious consequences of his conduct, which instead of producing a sobering influence over

his mind, interacted him all the more and the appellant inflicted a blow with the same knife on the head of the deceased as well and then took to his

heels. P. Ws Khushal Chand, Chaman Lal and Ved Prakash accompanied the deceased to his house, but hardly had they covered the distance up

to the house of the appellant, when the deceased, under the impact of the head injury sustained by him, fell unconscious on the ground. At this

stage P. W. Feroz Chand also arrived there. He and P. W. Khushal Chand went to lodge a report of the incident with Police Station Kishtawar,

whereas P. Ws Chaman Lal and Ved Prakash removed the deceased to the hospital.

On the report lodged by P. W. Khushal Chand, a case u/s 307, 324 and 326 R P. C. was registered against the appellant by the police at 11 p.

m. on the same day. P. W. Abdul Majid Gania who was then posted as S.H.O. Police Station Kishtwar, immediately repaired to the hospital to

record the statement of the deceased, but could not do so as the latter was not in a fit condition to make a statement. He, however, prepared the

injury statement of both P. Khushal Chand and the deceased and referred the same to P.W. Dr. Mohammad Bashir for his opinion.

P.W. Dr. Mohammad Bashir on examination found only one injury on the person of P.W. Khushal Chand viz. an incised wound in the left supers

scapular region, above the left shoulder in length and 1 in depth, which had sharp edges and clear cut margins. It was, in his opinion, simple in

nature and had been caused by a sharp object. be found only one injurey also on Parietal the person of deceased viz : an incised wound on the

right skull bone, 21 in depth, 1"" in length and 1/2Cms in breadth which had clear cut margins. This injury was found by him to have caused a

compound fracture of the bone, thought the brain had remained unaffected.

The appellant was arrested on 2611973 from the bus stand at Kishtawar and a knife was also recovered from him their and then. On the same

day, the S.H.O, also recorded the statement of the deceased in the hospital. The deceased was later on removed to Jammu for further treatment

where he remained hospitalized for a month or so and was then brought back home where he eventually died on 2931973 Dead body of the

deceased was autopsied by P, W. Dr Ghulam Mustaffa, who also found his right parietal bone fractured. The deceased, in his opinion, had died of

home plegin, which had occurred due to subjural haemorrhage on account of the aforesaid head injury. On his death, the offence was converted

from Sections 30/and 326 to Section 302 R. P C the case was investigated by P. W. Abdul Majid Ganai, the S H. O. who eventually put up a

challenge under sections 302 and 324 R. P. C. against the appellant in the court of Judicial Magistrate 1st Class, Kishtwar, who committed him to

stand his trial before Sessions Judge, Bhaderwah, as already noticed.

On 3111973, Sant Ram, the father of appellant also lodged a report with Police Station Kishatwar accusing the deceased and P. Ws Feroz

Chand, Chaman Lal, Ved Parkash and Khushal Chand and a few others of committing riot and criminal trespass into his house on the night of

1211973 On this report, a case under Section 450, 147/R. P. C. was also registered by the police against these persons. Investigation into this

case was conducted by C. W. Bal Krishan who was then posted as A S I. Police Station Kishtwar. On investigation, he found a prima facie case

made out against the aforesaid accused person, who were consequently sent up for trial before Judicial Magistrate 1st Class, Kishtawar.

During the trial, the prosecution examined a number of witnesses, including P.Ws Khusal Chand Jodh Ram, Chamau Lal and Ved Prakash. The

statement made be the deceased on 2611973 was also tendered in evidence as his dying declaration. The defense set up by the appellant was that

the prosecution had not come to the court with the true story. According to him, the deceased along with P. Ws Khushal Chand, Feroz Chand,

Chaman Lal, Ved Prakash and Jodh Ram and a few others had in a drunken state trespassed into has house by breaking open the outer door of

the house & had assaulted him a well as his father on the lohri night. Neither he, nor his father had caused any injury to any one of the attackers.

Pandemonium had prevailed, as a consequence where of, it could not be noticed as to who had injured whom. The appellant also examined a

number of witnesses in defense and A. S s Bal Krishen was examined by the learned Session Judge on as a Court witness. The learned Session

Judge on consideration of the evidence eventually found the appellant guilty and convicted and sentenced him, as already indicated. In doing so be,

besides the medical evidence, relied upon the ocular testimony of P. v\ g Khushal Chand, Chaman Lal, Jodh Ram and Ved Prakash and also

pressed into aid the dying declaration of deceased Anant Ram.

We need not go into the question of the cause of the death of the deceased, for neither it has been raised before us, nor do we ourselves feel it

necessary to go into it; considering the view which we ultimately propose to take in the case even otherwise. There are two versions of the

occurrence i.e. one given the prosecution and the other given by the appellant Unless the prosecution evidence cogent and convincing enough to

show beyond reasonable doubt that the occurrence had actually taken place in the manner suggested by it, the appellant cannot be held guilty. (The

burden of proving the guilt of the accused, it is well settled, always rests on the prosecution. It has to prove his guilt beyond all reasonable doubt.

The evidence produced by the prosecution must be such ""as raises a certainty which convinces understanding, satisfies reason and directs

judgment."" The burden of proving an exception or a special circumstance relevant to his innocence, no doubt lies on the accused. But, the burden

on him to prove the same is not of the same nature as the burden of the prosecution to prove his guilty He is not required to prove the exception or

the special circumstance beyond reasonable doubt. Even if he succeeds in raising reasonable doubt about the existence of the facts and

circumstances relied upon by the prosecution for bringing home the offence charged on him, he shall have discharged his burden, for in that case

the prosecution cannot be said to have discharged its burden of proving his guilt beyond reasonable doubt. It is, therefore, obvious that where the

court on consideration of the evidence, whether produced by the prosecution or ' by the defense, entertains a reasonable doubt that the

prosecution has not come to it with the true story, it has to give benefit of that doubt to the accused and hold him not guilty accordingly. The doubt

has to be, however, reasonable which satisfies the standard of a prudent man.

8, The more we go through the evidence, the stronger grows our suspicion that the prosecution has not come to the court with the true version of

the occurrence. The occurrence, according to the prosecution, consists of two incidents i.e. the first taking place on the street near the house of

Amar Chand where P. W. Khushal Chand h""d received the injury and the second near the house of Hukam Chand where the deceased had

received the injury, after the appellant had succeeded in rescuing himself from the grip of Chaman La] and Ved Prakash. The F. I, R. was lodged

by no less a person than P. W, Khushal Chand, who had himself witnessed the two incidents. The report lodged by him. however, does not speak

of two incidents, rather the narrative given in it speaks of a single incident in within the deceased as well as P. W. Khusha Chand are alleged to

have sustained injuries.

Again P. W. Khushal Chand had stated that the appellant had been abusing him near the house of Amar Chand for more or less then ten

minutes prior to the arrival of P. Ws Jodh Ram, Chaman Lal, Ved Prakash and the deceased and had inflicted the knife blow only after these

witnesses had arrived on the spot. This version also appears highly incredible. Why at all should the appellant have awaited the arrival of these

witnesses to attack P. W. Khushal Chand with the knife which was already lying in his pocket Did he want this attack not to go unnoticed so that

the prosecution did not have to suffer for want of eye witnesses. If really he had any intention to attack his victim, then it does not stand to reason

that he should have waited for ten minutes unnecessarily.

Added to it is the queer coincidence that the deceased also fell unconscious not at any other place but at place in front of the house of the

appellant. Equally fantastic is the recovery of the knife from the appellant which he was allegedly having in his possession at the time of his arrest.

Why was he keen to keep this knife with him, we really fail to understand. The appellant was arrested at the bus stand a place where a numbe1of

people were supposed to be. Present but strangely enough, the seizure memo has been attested by the stock witnesses, namely, P Ws Feroz

Chand and Khushal Chand alone. There is evidence consisting of the statements of D, Ws Rain Prashed and Jia Lal Shan that the knife seized by

the police had been purchased on the very same day by the appellants father from the shop of D. W. Ram Prashad in presence of D, W. Jia Lal

Shan, a practicing lawyer at Kishtwar. The sale is also supported by a voucher duly proved by these witnesses. We have no reason to disbelieve

these witnesses more so, when the knife when it came to be seized by the police, did not have any blood stains on it.

Yet another shot in the arm of the appellant is the outcome of the investigation in the counter case registered on his father's report A prima facie

case of criminal house trespass and rioting was found established against the deceased and P. Ws Feroz Chand. Jodh Ram, Chaman Lal, Khushal

Chand and Ved Prakash by C. W. 3al Krishen and a challan put up against them in the court of Judicial Magistrate 1st Class, Kishtwar. It is in the

statement of C. W Bal Krishen A.S.I, that he had also got the appellant examined by the Doctor for his hand injury.

The prosecution's main reliance is on the testimony of P. Ws Khushal Chand, Chaman Lal, Jodh Ram and Ved Prakash. All these witnesses

are admittedly related to the deceased. True, relationship by itself may not be a good ground for rejecting their testimony, but these witnesses being

themselves involved as accused in the counter case, were interested witnesses & their evidence could not be readily accepted more so, when the

prosecution had failed to produce the only independent witness to the occurrence, namely, Daulat Ram. It would be indeed a serious infirmity in

the prosecution case, where it with helds independent witnesses and produces only those who are interested in the prosecution.

The learned Sessions Judge also relied upon the dying declaration of the deceased and in our opinion, wrongly so. It is in evidence that so long

as the deceased remained in the hospital at Kishtwar all his friends and relatives including the aforesaid eye witnesses had been visiting him

frequeuently. He must have also come to know that he too was figuring as one of the accused in the counter case. His dying declaration as such,

became worthless, for the possibility that the deceased was influenced or was even himself interested in making the same, could not, in these

circumstances be ruled out.

All these facts and circumstance leave us in grave doubt about the manner in which the occurrence resulting in injuries to the deceased and P.

W. Khushal Chand had actually taken place. We are satisfied that the prosecution has not come to the court with a true version of the occurrence.

We have, therefore, no option but to give benefit of this doubt to the appellant. Allowing his appeal, we set aside his conviction and sentence and

acquit him of the charge. He ii already on bail. His bail bond shall stand discharged.

Turning now to the revision, the same is also dismissed as a consequence of acquittal of the appellant. We cannot, however, help remaking that

the sentence of eight years rigorous imprisonment imposed by the learned Session Judge was unknown to law. Only two sentences viz death or

imprisonment for life have been provided for the offence of murder in section 302 R.P.C. It is shocking that the learned Sessions Judge did not

know even this much.