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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
A.S. Anand,S.M. Rizvi, JJ.
State - Appellant
Versus
Ramzan Wani - Respondent
Acquittal Appeal No. 26/1979
Decided On : 02 November, 1984
CRIMINAL APPEAL - SECTION 288 CR. P. C. - EVIDENCE ACT, SECTION 145 - TRANSFER OF STATEMENTS - CROSS-EXAMINATION - DISCRETION OF THE COURT - RELIABILITY OF WITNESSES - PRESUMPTION OF INNOCENCE - ACQUITTAL - INTERFERENCE BY THE HIGH COURT.
Fact of the Case:
The State of Jammu and Kashmir appealed against the acquittal of Ramzan Wani, the respondent, by the Sessions Judge, Baramulla, for the offense under Section 302 R. P. C. The prosecution alleged that the respondent struck Abdullah Wani, the deceased, with a pole during a quarrel over a common road, causing his death. The prosecution presented several witnesses, including Ahad Wani, Sona Wani, Mohamad Wani, Jammal Wani, Lassa Wani, Rhalik Wani, Munawar Ganai, Ghulam Qadir Khan Patwari, Ghulam Qadir Wani Lambardar, and Dr. G. N. Bhat. The respondent denied the allegations and did not present any evidence.
Finding of the Court:
The court found that the direct evidence against the respondent was weak and unreliable. The witnesses who had initially given statements incriminating the respondent later resiled from their statements and were declared hostile by the prosecution. The court also found that the statements transferred under Section 288 Cr. P. C. could not be relied upon because the respondent had not been given an opportunity to cross-examine the witnesses with regard to those statements. The court further found that the witnesses were unreliable and untrustworthy and that their testimony was not sufficient to convict the respondent.
Issues: 1. Whether the statements transferred under Section 288 Cr. P. C. could be relied upon when the respondent had not been given an opportunity to cross-examine the witnesses with regard to those statements. 2. Whether the witnesses were reliable and trustworthy. 3. Whether the evidence was sufficient to convict the respondent.
Ratio Decidendi: 1. The court held that the statements transferred under Section 288 Cr. P. C. could not be relied upon because the respondent had not been given an opportunity to cross-examine the witnesses with regard to those statements. The court noted that Section 145 of the Evidence Act requires that a witness be confronted with his previous statement before it can be used to contradict or corroborate his testimony. The court also noted that the principles of natural justice require that the accused be given an opportunity to cross-examine the witnesses with regard to any evidence that is brought against him. 2. The court found that the witnesses were unreliable and untrustworthy. The court noted that the witnesses had made different statements regarding the manner of the attack and that their testimony was contradicted by other evidence on record. The court also noted that there was no corroboration worth the name to support the testimony of the witnesses. 3. The court found that the evidence was not sufficient to convict the respondent. The court noted that the direct evidence against the respondent was weak and unreliable and that the statements transferred under Section 288 Cr. P. C. could not be relied upon. The court also noted that the witnesses were unreliable and untrustworthy and that their testimony was not sufficient to convict the respondent.
Final Decision: The court dismissed the appeal and upheld the acquittal of the respondent.
2. Briefly stated the case for the prosecution is that the accused respondent, Ahad Wadi P. W, and Abdullah Wani deceased are collaterals holding common road on the rear said of their cow shed. On 1.4 1972 some willow trees were planted near this common road by Ahad Wani P. W and on 2-4 1972, the respondent Ramzan Wani fixed certain poles for fencing the road upon which a quarrell ensued between the respondent and Ahad Wani P. W. Meanwhile the deceased Abdullah Wani came on the spot and not only pulled out the poles but also uprooted the willow trees with the object that the quarrel between the two should end. This action of the deceased enraged the accused who picked up a pole and struck a blow on the head of the deceased upon which he fell down. The deceased was removed to Sopore, Hospital on that very day but he succumbed to the injuries on the next day i.e. the 3rd of April 1972. The matter was reported to the police who registered a case and challanged the accused respondent for an offence under section 302 P. C.
3. The prosecution in order to connect the accused respondent with the crime examined Ahad Wani, Sona Wani, Mohamad Wani, Jammal Wani, Lassa Wani, Rhalik Wani, Munawar Ganai, Ghulam Qadir Khan Patwari, Ghulam Qadir Wani Lambardar and Dr. G. N. Bhat, Mohamad Yussuf Inspector of Police was examined under Section 540 Cr. P. C. the accused-respondent when examined under section 342 Cr P. C. denied the allegations against him. No evidence, however, was led on behalf of the accused-respondent.
4. Dr. G. N. Bhat had examined the deceased on his admission to the hospital at Sopore on 2-4-1972 at 2-30 p. m. He had found one small superficial abrasion over the occipital region besides haemotoma over the scalp extending from the occipital to the parietal junction of about 6"x6" in dimension. The doctor had performed the postmortem on the dead body and opined that the cause of the death of the deceased was due to cerebral haemorrhage due to massive laceration of sinuses. The injury found on the deceased, as earlier noticed, was opined to be sufficient in the ordinary course of nature to cause the death of the deceased.
5. The direct evidence consists of Mohamad Wani, Jammal Wani, Ahad Wani, Sona Wani, and Lassa Wani. Out of these three witnesses, Mohamad Wani, Jammal Wani and Ahad Wani resiles from their statements in the committing court and were declared hostile by this prosecution. Their statements recorded by the committing court were transferred on the file by the learned Sessions Judge under Section 288 Cr. P. C. Sona Wani and Lassi Wani, however, gave the eye witnesses account of the occurrence before the learned Sessions Judge.
6. According to Lassi Wani, Ahad Wani P. W. planted a willow tree behind the cow shed. On the following day, the accused-respondent came and raised a fencing thus obstructing the way. A quarrel ensued between Ahad Wani and Ramzan Wani, when the deceased Abdullah Wani came there, he advised both Ahad Wani and Ramzan Wani not to quarrel. He then pulled out the poles fixed by the accused-respondent Ramzan Wani who got enraged on this and struck a blow with a stick on the head of the deceased. The witness went on to add that Abdullah Wani was moved to the Sopore hospital where he died. He admitted, that the deceased and the accused were having heated arguments before the blow was struck and that the deceased was at a distance of about two yards when the accused struck the blow. He went on to add that he did not see the actual blow having been given to the deceased by the accused. He also feigned ignorance as to whether Abdhullah Wani had fixed the poles in the compound or the poles had been fixed by Ramzan Wani. He could not state whether the de
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