STATE OF JAMMU AND KASHMIR Vs. MOHD. SHABIR

JUDGEMENT

(1.) The order of acquittal of the accused dtd. 28/3/2014 is sought to be challenged by the appellant-State in accompanied appeal. As the appeal has been filed after the expiry of period of limitation, application on hand has been filed seeking condonation of delay in its filing. The appellant has also filed an application seeking special leave of this Court to file the appeal against the acquittal. The application seeking condonation of delay is required to be considered and decided and in case sufficient cause is shown, only thereafter the application to grant leave to file appeal and Appeal would be taken up for consideration. The respondent was acquitted facing trial before the trial Court for the offence punishable under Sec. 302 RPC.

(2.) The brief case of the prosecution was that on 3/9/2021, one Mohd. Afzal lodged an oral report with Police Station Kalakote that on the said date at about 12.15 pm, he along with his brothers namely Mohd. Akram and Mohd. Iqbal were grazing the cattle in his field, when Mohd. Shabir, Fazal Hussain, Shaheen Akhter, who were having enmity with him regarding the land on spot, came there armed with 'Pathi' 'Tavvar', 'Lathi' and stone, and tried to pull away the cattle from the land and when he intervened the accused got enraged and attacked him and his brothers with intention to kill. He, however, managed to escape from the spot but the accused caused injuries to his brothers, namely, Mohd. Akram and Mohd. Iqbal. His brother, Mohd. Iqbal, died because of the injuries suffered in the attack. The charge-sheet was framed against the accused and during the investigation, involvement of Nasim Akhter and Mohd. Hussain was not established. The accused, Fazal Hussain, was found to be juvenile and challan against him was filed under the Juvenile Justice Act, 1997, and the challan was presented against accused Mohd. Shabir and Shaheen Akhter in the court of Chief Judicial Magistrate, Rajouri, whereas the accused, Shaheen Akhter alias Tasvir Begum, was also declared juvenile and the challan was directed to be produced separately against her in the court of Judicial Magistrate 1st Class, Kalakote, for trial under the Juvenile Justice Act, 1997. As such, only Mohd. Shabir was formally charge-sheeted by learned Sessions Judge, Rajouri. So, as per the case of the complainant, they were attacked by five persons, out of whom two were juvenile, and during investigation, the involvement of Nasim Akhter and Mohd. Hussain was not established.

(3.) The main ground taken for seeking condonation of delay of 332 days in filing the application/appeal is that the time was taken for fulfilemen tof formalities of the State as the appeal could not have been filed without seeking sanction from the Department of Law and for obtaining such a sanction, the file has to pass through different departments/offices and it was because of procedural delay that the appeal could not be filed and in case the delay is not condoned, having regard to evidence produced before the Trial Court, the same will result in miscarriage of substantial justice.