JUDGMENT
Syed Bashir-Ud-Din, J.
1. Respondents accused faced trial under Section 148, 323, 302, and 149, R.P.C. in Sessions case 11/78 titled State v. Amma Dagga and others. The Sessions Judge Anantnag on conclusion of the trial dismissed the prosecution case after giving benefit of doubt to the accused. The accused were acquitted of the above charged offences. This judgment and order of acquittal came to be recorded by the trial Court of Sessions Judge Anantnag on March 23, 1985. State of Jammu and Kashmir through its Chief Prosecution Officer/Government Advocate has come up in appeal against the acquittal judgment.
2. On 19-11-1977, accused led by Salam Wani and Amma Dagga are alleged to have pelted stones on the house of one Mohammad Ashan Bhat, EW, where deceased Mohammed Amin was also present. This happened in village Madargam Tehsil Kulgam. Accused formed an unlawful assembly with the object of causing death to complaint party and damage to their property. During pelting of stones as above, Mohammad Amin came out of the house in the compound. He was hit at nose by the stone pelted at him by Salam Wani, followed by another stone hurled at him by Amma Dagga which struck his head. Mohammad Amin fell down. The glass panes of house were also smashed. The police station Kulgam was informed and report lodged. Mohammad Amin was taken to P.H.C. at Kulgam and thereafter referred to District Hospital Anantnag and later while being carried to Srinagar Hospital, died in transit at Batwara Srinagar. His dead body was brought to police Station Kulgam. Postmortem was conducted. The stones Exp. 1 and Exp. 2 were seized (Memo Expd).
3. The statements of witnesses under Section 161, Cr.P.C. were recorded. On completion of other investigative steps, final reports under Section 173, Cr.P.C. was filed in Court and the accused on committal faced trial in the Court of Sessions Judge, Anantnag.
4. The impugned judgment is assailed on grounds that notwithstanding number of witnesses having witnessed the occurrence, and these witnesses having been examined in the Court, their evidence has not been properly appreciated. The prosecution case has been dismissed on innocuous grounds. The medical evidence fully supports the eye witnesses account of the occurrence and guilt of accused. There is sufficient evidence to bring home guilt to the accused.
5. The defence counsel, in oppositing to the submissions of the Addl. Advocate General, contends that the conclusions drawn by the Sessions Judge are based and supported by evidence. The case is full of doubts. The witnesses are not only related but are interested and partisan. No independent eye witness has been examined, notwithstanding, that the occurrence is alleged to have been viewed by large multitude of people. Evidence is neither conclusive nor it supports the prosecution. There are serious infirmities attached to prosecution evidence. In the facts and circumstances of the case learned trial Judge has rightly dismissed the case and acquitted accused.
6. The norm and standard of proof often identified with phrase “reasonable doubt” is requirement of proof in a criminal case. Reasonable doubt, is obviously a fair doubt, squarely based upon reason and common-sense emerging from the evidence on record. Though it cannot be measured in terms of mathematical units, but the concept of probability and its degree is to express fairly upon reason and be informed of objectivity.
See Dr. N.G. Dastane v. Mrs. S. Dastane, AIR 1975 SC 1534; Sawal Dass v. State of Bihar, AIR 1974 SC 778 : 1974 Cri LJ 664; Sharad Birdhi Chand v. State of Maharashtra, AIR 1984 SC 1622 : 1984 Cri LJ 1738 and State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 (2160): 1989 Cri LJ 288.
Obviously, proof beyond reasonable doubt is a standard norm and proof to arise from evidence in a criminal case in terms requiring the whole evidence placed before the trial Court to be re-evaluated and re-appreciated by this Court.
Learned Government Advocate has taken us through the evidence. We have perused evidence, and documents on record as also the impugned judgment. We find following features and facets of the case cannot escape notice : –
(i) The eye witness, Mohd Ashan Bhat, Ahad Bhat, Ghulam Quadir Bhat, Momma Bhat, Wahab Sheikh and Moma Bhat are all closely related to deceased and to one another. Ahad Bhat is father of deceased Mohd Amin. Ashan Bhat is brother of Ahad Bhat and uncle of Mohd Amin deceased. Ghulam Quadir is cousin of the above two brother witnesses. Mohd Beigh is son in law of Ahas Bhat witness, Wahab Sheikh is brother in law of said Ashan Bhat and Muma Bhat is cousin of the two brother witnesses. Obviously these closely related witnesses the only eye witness examined in the case, have as per their own showing admitted that they are staunch supporters of and belong to the group of complainant party, whose paddy husking machine is already running in village. The accused Salam Wani and Amma Shalla also installed a Paddy husking machine in village. The complainant party, including the deceased and his father, made a complaint to the Revenue authorities that the two accused have grabbed Kahcharai land at the site of paddy husking machine. They succeeded in obtaining a stay. The Patwari and Tehsildar stayed running of said accused’s machine. This led to the occur rence. The complainant party and the accused party are the two factions with visible hostility towards each other. It is also in challani evidence that the complainant party and the prosecution witnesses have taken ill of the installation of the paddy husking machine by the two accused and nourished a grudge thereto. This has led to inimical relations between the two groups and the consequent hostility against one another. All the eye witnesses examined by the prosecution here are relation as well as interested witnesses. Obviously, such evidence has to be appreciated in a fair, objective and careful mariner. There has to be a cautious approach to deal with such evidence. The interest on the part of such witness to implicate persons from the other group cannot be excluded.
In Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 : 1965 (1) Cri LJ 226, Gajendragadkar, C.J. speaking for the Court observed :
…There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed, as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct….
The only independent, eye witnesses examined by the prosecution, namely Sattar Bhat, Numberdar of the village has not at all supported prosecution case. Though the relation, partisan and interested eye witnesses have all spoken that: the occurrence was witnessed by fairly sizeable multitude of people, yet no independent eye witness was produced and examined in this case.
(ii) FIR (ExPW-C), was registered at Police Station Kulgam on 19-11-1977. Police Station, Kulgam is just 11/2 Km away from the Court of Sub Judge, Judicial Magistrate Kulgam, yet. the FIR (ExPW-C), which disclosed cognizable offence qua the occurrence in question, was kept at police Station all through and this occurrence report was sent to the Judicial Magistrate after one week only on 26-11-1977. No explanation whatsoever has come on record, even in investigating officer’s statement why this report was not sent promptly and what was the reason for infracting the provisions of Section 157, Cr.P.C. This inordinate withholding of report assumes significance once it is noted that in FIR (ExPWC) some blank space is left over possibly for incorporation of some other name(s) as accused and that, the condition of Mohd Amin, who is stated to have fell down unconscious on spot is not even mentioned in the report. Not only so, despite the revealing information of complainant Mohammad Ahsan Bhat that he knew the eye witness who also included their close relations, the names of eye witnesses have not been given in the FIR. Though it is in evidence that. Mohd Beig, Ahad Bhat and Muma Bhat accompanied said Mohd Ahsan Bhat to the Police Station, yet none of these three persons is mentioned in the FIR. All these circumstances stand against spontaneity and genuineness of FIR. Embelishment and improvement in FIR cannot in such circumstances be excluded. The conclusion of the trial Court that the FIR was lodged belatedly only after Mohd Amin died and not soon after the occurrence leaving scope and opportunity to concerned to rope in persons from other faction and to add and improve the facts is not without basis. The tell-tale circumstances point to that end,
(iii) The deposition of two medical witnesses viz., Dr. Mohd Iqbal and Dr. Abdul Rashid, in conjunction with injury report and post-mortem report, has not corroborated ocular evidence. They have not been asked even a single question if the injuries in question, spoken by them sufficient in ordinary course to cause death of the person of Mohd Amin, could have been caused by impact of the two seized stones ExP. l and ExP2 allegedly used in causing fatal injuries on the person of Mohammad Amin. Obviously, the opinion of the two doctors thereto is not available on record. This assumes all the more significance when it is seen from record that the two stones ExP. 1 and ExP. 2 were not preserved and seized soon after the occurrence on spot. In fact the two stones were produced before the Investigating officer allegedly after two days of occurrence. There is no explanation why the stones were not produced before the Investigating Officer soon after occurrence. Even, the Investigating Officer Gulzar Ahmad has stated that he has not investigated the aspect of the case whether the two stones in question actually caused the fatal injuries leading to death of Mohd Amin or not. It also merits to be seen that as many as four injuries are shown and recorded in injury and autopsy reports. But how these four injuries could be caused simultanenously by the two stones hurled at one time, is not explained. The medical evidence/Doctor’s opinion is that the injuries in question could have been also caused by a fall.
Obviously, the medical evidence is not conclusive and satisfactory. It is open ended and exculpatory. Much is left to be answered by the deposition of these two witnesses.
(iv) Almost all the eye witnesses have stated that the deceased Mohd Amin took shelter behind 2 1/2 feet to 4 feet compound wall when the stones directed towards the house were hurled from outside. This aspect whether the stones could have hit Mohd Amin and if so, in what circumstances, has neither been investigated nor explained. In the form “Margi Gair Tabai Bazaria Tassadud”, filed on 20-11-1977 by the SHO of Police Station, this important aspect of the case has been left blank and the entries have not been made thereto. This circumstance also needs to be seen in conjunction with the fact that the witnesses examined have spoken that the accused were identified in moon light and light emitted by electric bulbs, since the occurrence took place in the evening at about 7 O’clock.
Keeping in mind that it was 3rd week of November and admission of some of the witnesses that at 7 p.m. on 19-11-1977 (the hour and date of occurrence) it was quite dark, the identity of the accused is again a doutful proposition. Moreso, as there is no evidence to show that electric energy was available and bulbs were glowing, rather sufficiently glowing, at the time of alleged occurrence. A serious doubt is cast as to the identity of the accused by the witnesses.
(v) In the above tell tale circumstances, exculpating facts, tutored and tailored version of interested partisan relation witnesses and in absence of independent evidence, the conclusion drawn on analysis and appraisal of evidence by the trial Court that the prosecution has not proved its case beyond reasonable doubt cannot be said to be wrong. In the whole fact situation and circumstances of the case, the conclusion of not proved beyond reasonable doubt of trial Court cannot be said to be either over or under statement. It is not the number of witnesses examined that matter but what counts is the quality of evidence. The trial Court’s approach in appreciating the evidence is proper. The acquittal of the accused is well reasoned on detail and maticulous analysis and proper appreciation of evidence. Cardinal principles and standards to be observed while judging and giving evidentiary value of ocular primary, real circumstantial or secondary evidence have been adhered to.
7. In result, we find no merit in this Appeal. Dismissed. Inform Court below of the result of Appeal and send back record.