GHULAM SABAR Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) The present petition has been filed by the petitioner for quashing the order dtd. 1/1/2021 passed by the learned Additional Sessions Judge, Kathua (hereinafter to be referred as the trial court) subsequently, after the disposal of challan titled, "State vs. Shifiq Alam" by virtue of which, the learned trial court has directed for initiation of proceedings against the petitioner under sec. 479-B of the Code of Criminal Procedure (Cr.P.C.).

(2.) The petitioner was cited as a witness in the aforesaid challan in which it was stated that on 25/7/2014 at about 10 AM, a telephonic message was received at Police Station, Billawar regarding the death of one lady, namely, Parveen Akhter under mysterious circumstances and the body of deceased was lying in mortuary of Hospital Billawar. Inquest proceedings were initiated and during the course of inquest proceedings, several statements were recorded including the statement of father of deceased and it was found that the deceased was given severe beating in the night intervening 24/25 of July, 2014 by the accused and as a consequence of the same, the deceased died. Thereafter, FIR bearing No. 95 of 2014 was registered and after the conclusion of the investigation, the charge-sheet was filed, that was subsequently transferred to the court of learned Additional Sessions Judge, Kathua. The prosecution relied upon the testimonies of 16 witnesses cited in the charge-sheet and the petitioner was shown as one of the witnesses in the charge-sheet. The statement of the petitioner was also got recorded by the Investigating Agency under sec. 164-A Cr.P.C. After the conclusion of the trial, learned trial court dismissed the challan vide judgment dtd. 31/12/2020. It is further stated that from the perusal of the judgment of acquittal passed by the learned trial court, it is evident that the learned trial court acquitted the accused on several grounds. The case purely rested on circumstantial evidence as there was no eye witness cited by the prosecution.

(3.) In the said judgment, the learned trial court has neither expressed any opinion regarding the conduct of the petitioner nor had drawn any satisfaction that the petitioner was guilty of willfully giving false evidence or fabricating false evidence with intention that such evidence shall be used in such proceedings but had simply acquitted the accused, after the learned trial court found that the material relied upon by the prosecution is insufficient to maintain conviction. It is further stated that after the accused was acquitted vide judgment dtd. 31/12/2020, the learned trial court on the very next day directed initiation of proceedings against the petitioner under sec. 479-B Cr.P.C. and that too against the mandate of plain language of the provision, as it was incumbent upon the learned trial court to express the opinion in the judgment or the final order disposing of the judicial proceedings that the witness has subsequently retracted his statement in material particulars and has changed his version by narrating new facts which were destructive to the case of prosecution and further that such retraction as well as contradiction is of such a nature that the witness was guilty of knowingly or willfully giving false evidence or fabricating false evidence with the intention that such evidence should be used in such proceedings.