MOHAMMAD HANIF Vs. STATE OF J AND K

JUDGEMENT

(1.) This appeal is directed against a judgment passed by Session Judge Poonch on 26-12-1992 read with one passed on 8-1-1993. By virtue of the judgment under appeal the appellant-accused, who was standing trial before the court below in terms of section 304, part-II, Ranbir Penal Code, was sentenced to rigorous impisonment for five year The prosecution story in brief is that on 4-8-1990 at about 6 P.M., the deceased Mohd Amin left for the shop of Mohd Ayub at village Chajla. Accused Mohd Hanif assaulted him and caused injury to his person as a result of which was admitted in the hospital where he succumbed to the injury at 1.30 A.M., in the night. The cause for this, according to the prosecution, was that the accused had illicit relations with one Walayat Bi, who was arrayed as an accused because she had caught hold of the deceased when the injury was inflicted by accused Mohd. Hanif. Walayat Bi accused lateron was found to be a child under Children Court Act and she is facing trial before the competent court separately. After registration of the case a challan was produced before the competent court. Charge against the accused was framed. Accused pleaded not gulity and evidence by the prosecution was led. Total number of witnesses listed by the prosecution was 24. Mohd. Iqbal, Mohd Riaz, Nazira Begum and Shada Begum were show to be the witnesses of the occurrence. Prosecution has exhausted the list and statement of all the witnesses have been recorded. Interestingly the four eye witnesses namely Mohd. Iqbal, Mohd Riaz, Nazira Begum and Shada Begum have not supported the prosecution case. As a result they have been declared hostile. This was the most important death-knell received by the prosecution case. The only witness who claims to be the witness of the occurence is Siraj Din PW-2. It in necessary to mention here that the FIR does not describe him to be an eye witness, whileas the other four witnesses named above have been. This by itself may not scale down the importance of his statement but it must raise a doubt in the mind of the court, particularly when he is the solitary eye witness available in the case. It is pertinent to place on record that according to his own statement, and that of the informant, Fazal Hussain, Siraj Din was present in the Police Station at the time of lodging of the FIR. Even the FIR makes a mention that Fazal Hussain was accompanied by Siraj Din. Had it been a fact that Siraj Din was an eye witness, then this could have easily been mentioned in the FIR and the statement of Siraj Din would have recorded on the same day. The animus of Siraj Din with the accused cannot be ruled out because same is borne by the prosecution evidence itself , especially the statement of Masar Din who has not been declared hostile and has stated that it was on the pursuation of Siraj Din PW that he was made to sign some papers. Not only that, Siraj Din happens to be a relative of the deceased also. His relationship with the deceased is acknowledged by the investigating officer also. His statement in terms of sec. 161 Cr. P. C. was recorded on the third day of the occurrence when he was present at the time of lodging the FIR on the very first day itself. I have prefaced the above observation which are going to follow, with this backdrop only for the purpose of showing that the court requires to be guarded and cautious in placing reliance upon the statement of Siraj Din PW. In addition, the statement of this solitary witness suffers from contradictions which touch the most material particulars of the case. Some of them can be outlined as under : i) The witness states that he never said before the police that the deceased was being beaten by Hanif and Iqbal and Riaz were trying to save him; ii) He did not state before the police that Nazira Begum and Shada Begum had witnessed the occurrence on spot; iii) He never state before the police that Walayat Bi had caught hold of the deceased by his waist when he was assaulted by the accused; iv) He nerver stated before the police that he has sent a boy, Ghulam Mohd, to inform Fazal Hussian, the father of the deccased about the assault . ( It is interesting to note that according to him Gh. Mohd is an old man of about 90 years ).

(2.) A persual of the statement recorded by the Investigating Officer in terms of sec.161 Cr. P. C. reveals that such statement were tendered before him. Trial court has unfortunately believed the solitary statement of this witness and brushed aside all the contradictions it has with other witnesses and the improvement made by him. The trial court, all along in this case, has acted on sermises and conjectures. It has tried to seek explanation as to why the other witness had gone hostile . This was none of its functions. If a witness does not support the prosecution case, the only result which will follow, will be that the prosecution will not get any benefit of his statement. Support has been given to the statement of Siraj Din PW from other broken statements and I have no hesitation in placing on record that at so many occasions the trial court has gone astray. Trial court also forgets that Siraj Din could not have been seen near the dead body at the point of time when Fazal Hussian PW-12 (father of the deceased) arrived on spot because at that time the deceased was living and it was at 1.30 AM, next morning, that he expired and that also in the hospital. The corroboration by Fazal Hussian, at the face of it, seems to be an inarticulate padding. Fazal Hussian, according to his own statement, had seen Mohd Amin first time when he was dead. According to him his son had died at 1.30 A.M.

(3.) Trial court, after commenting upon the modus operandi of PW Nazira Begum and PW Shada Begum, holds that they were lieing that they had become unconscious. And if, it was a fact that they had become unconscious, they might have seen the deceaded bleeding. In this behalf I want to reproduce the relevant portion of the judgment that touches the statement of these two witnesses. It reads as under : "Saraj Din PW -13 has categorically deposed that other witnesses came on spot after the occurrence was over and he names Nazira Bi PW-2 and Shada Begum PW-3 also as the women who came on spot after the accused persons have run away from the spot. Though they have gone hostile but they do admit that they went on spot and large number of peoples of vicinity, were present there when they were asked as to whether they say any injury on the head of the deceased, they expressed ignorance on the ground that they had become unconscious. This leads to the inference that they did see the bleeding injury and became unconscious or by feigning unconscoiusness they want to show that they did not see any injury on the head of the deceased."