MST JANA Vs. MOHD AKBAR ALAI

JUDGEMENT

(1.) FIVE persons, namely Mohd Akbar Alai, Sattar Alai. Reshi Para, Naseem Akhtar and Ghulam Ahmad Reshi were tried in the court of Judicial Magistrate, (Munsiff), Badgam, for an offence under Section 82 of the Registration Act, the first among them also for an offence under Section 420, R. P. C. On consideration of the evidence, the learned Magistrate found that no offence was made out against Gh. Ahmed Reshi and acquitted him. He also found that the offence under Section 420, R. P. C. was not made out against Akbar Alai and acquitted him of that charge. He, however, found that the offence under Section 82 Registration Act was made out against Akbar Alai, Sattar Alai, Reshi Para and Naseem Akhtar He convicted them of the said offence and sentenced them to rigorous imprisonment for six months and a fine of Rs. 100/- each, in default to simple imprisonment for further fifteen days. On appeal, the learned Sessions Judge, Srinagar, found that the offence under Section 82, Registration Act was made out against Satar Alai, Reshi Para and Nasim Akhtar but not so against Moh'd Akbar Alai. Accordingly he acquitted Moh'd Akbar Alai and while maintaining the conviction of the other three accused persons reduced their period of sentence to that already undergone by them, which was eleven days. The complainant, Mst. Jana, filed a revision in this Court challenging the propriety of acquittal of Moh'd Akbar Alai and the reduction of sentence of the other three accused persons. It is Revision petition No. 1 of 1970. At the hearing of this petition, Justice J. N. Bhat as he then was, by his order dated October 15, 1971, directed issue of a rule to all the four accused why, in the event of their conviction being upheld, the sentence imposed on them be not enhanced. The accused opposed the rule. In view of the rule the case came up for hearing before a Division Bench of this Court consisting of myself and my learned brother, Mian Jalal-ud-Din J. On the finding that the learned Sessions Judge, Srinagar had not considered the evidence relied on by the prosecution against Moh'd Akbar Alai, we set aside his acquittal and directed the re-hearing of the appeal by the Additional Sessions Judge, Srinagar in order to avoid embarrassment to the then Sessions Judge who had already expressed his opinion in the matter. We also directed that the rule of enhancement will lie over till the result of the appeal was known. On rehearing the appeal, the learned Additional Sessions Judge, by his judgment dated 9-12-1972. upheld the conviction and sentence imposed on Mohd Akbar Alai by the trial Magistrate and dismissed his appeal. Aggrieved by this decision, Moh'd Akbar Alai has come up in revision to this Court which is revision petition No. 34 of 1972. This judgment will govern the disposal of both the revisions as also the Rule of enhancement issued by Mr. Justice J. N. Bhat.

(2.) THE case of the prosecution in the trial court was that on 22-4-1965 Akbar Alai got a sale deed executed by Mst. Jana P. W. in favour of his father, Sattar Alai, without, however, paying the stipulated consideration of Rs. 5,000/- which, he promised to pay her at Srinagar through his father. But nothing was actually paid to Mst. Jana in spite of her repeated request. On the other hand Akbar Alai, Sattar Alai joined hands with Reshi Para and Ahmed Reshi and procured the services of Naseem Akhtar who falsely personated herself as Mst. Jana before the Sub-Registrar Badgam on 27-5-1965 when the deed was presented for registration. The case of the prosecution further was that Mst. Jana had already got wind of the designed action and so, she too rushed to Badgam on the relevant day where the truth of the matter became known to her. She immediately filed an application before the Sub-Registrar, and also lodged a report Exp. 2 at police Station Badgam. The Sub-Registrar issued a rule to the aforesaid persons and withheld the certificate of registration. They even appeared in response to the rule, confessed the guilt and pleaded for mercy. But. before, further action could be taken by the Sub-Registrar in the matter, the relevant file was claimed by the fire which gutted the court building. The police, however, submitted a charge-sheet against all the aforesaid persons under various offences as a result of which they were tried in the court of Judicial Magistrate first class, Badgam with the results mentioned above. The defence of the accused at the trial was of denial simpliciter with one of them namely, Akbar Alai, also pleading alibi

(3.) AT this stage it may be mentioned that, in the course of the trial while the prosecution evidence was on, Mst. Naseem Akhtar filed an application along with an affidavit admitting that she had falsely personated for Mst. Jana Bibi at the time of the Registration, adding, that she had done so at the instance of Amma Reshi and Akbar Alai. The learned Magistrate recorded her statement in which she affirmed the contents of the affidavit and added that it was voluntary and not a product of any inducement or coercion. In her subsequent statement under Section 342, Criminal Procedure Code she, however, stated that the affidavit was got scribed by her father and that she had produced it in the court without knowing what it contained.