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1987 Supreme(J&K) 61
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
G.A. Kuchhai,R.P. Sethi, JJ.
State - Appellant
Versus
Mushtaq Ahmed - Respondent
Cr. Acquittal Appeal No. 65/1981
Decided On : 04 June, 1987
Advocate For Appellant: Syed Manzoor Ahmad Shah
Advocate For Respondent: P.N. Goja
Advocate For Respondent: Z. Ahmad
The prosecution must present sufficient evidence to prove the charges against the accused, and the evidence must be reliable and untainted by any improper conduct.
Headnote:
CRIMINAL APPEAL - ACQUITTAL - SECTION 120-B, 201, 204, 381 RPC - SUMMARY OF EVIDENCE - INSUFFICIENT EVIDENCE TO PROVE CRIMINAL CONSPIRACY, EXTRA-JUDICIAL CONFESSION, AND RECOVERY OF MISSING FILE - APPEAL DISMISSED FOR WANT OF SANCTION FROM GOVERNMENT.
Fact of the Case:
The prosecution alleged that a pending criminal file went missing from the office of the Sessions Judge, Budgam, and the accused, a clerk in the court, was involved in the conspiracy to steal the file. The prosecution presented evidence of criminal conspiracy, extra-judicial confession, and recovery of a portion of the missing file from the accused's room.
Finding of the Court:
The court found that the evidence of criminal conspiracy was insufficient, as the witnesses did not provide any concrete evidence of a conspiracy between the accused and the other co-accused. The court also found that the extra-judicial confession was unreliable, as the witness who testified to the confession was a chance witness with no prior acquaintance with the accused. Additionally, the court found that the recovery of the missing file was not properly conducted and that the evidence was tainted by the involvement of a prosecution witness who had a personal interest in implicating the accused.
Issues: 1. Whether the evidence presented by the prosecution was sufficient to prove the charges of criminal conspiracy, extra-judicial confession, and recovery of the missing file. 2. Whether the appeal was maintainable without the sanction of the Government.
Ratio Decidendi: 1. The court held that the evidence of criminal conspiracy was insufficient, as the witnesses did not provide any concrete evidence of a conspiracy between the accused and the other co-accused. The court also found that the extra-judicial confession was unreliable, as the witness who testified to the confession was a chance witness with no prior acquaintance with the accused. Additionally, the court found that the recovery of the missing file was not properly conducted and that the evidence was tainted by the involvement of a prosecution witness who had a personal interest in implicating the accused. 2. The court held that the appeal was not maintainable without the sanction of the Government, as required under Section 417 of the Code of Criminal Procedure.
Final Decision: The court dismissed the appeal against the acquittal of the accused, upholding the verdict of the Chief Judicial Magistrate Budgam.
1. This acquittal appeal is presented by the State against an order of acquittal dt 27-7-1981 passed by the Chief Judicial Magistrate, Budgam, whereby the accused alongwith other co-accused have been acquitted of the charges u/s 120-B, 201, 204, 381 RpC.
2. The prosecution case is that a pending criminal file u/s 366, 376 RFC was detected missing from the office of Sessions Judge, Budgam on 28-5-1980 and the fact was reported to the Presiding Officer by PWs Ghulam Mohd. Qadri and S. Janak Singh clerks in the court on 30-5-1980. The Sessions Judge, Budgam appears to have referred the mattar to the Registrar, High court on the same date and on 2-6-1980 a report of the occurance appears to have been lodged before the S. P. Budgam, which resulted in investigation of the case and presentation of a challan under Section 120-B, 201, 204, 381 RPC before CJM Budgam against the accused in the missing file, including Mushtaq Ahmed accused, clerk in the court of Sessions Judge Budgam who figures accused in this appeal against the acquittal. The CJM Budgam after trial acquitted all the accused of the charges under sections 201. 204, 81, 120-B RPC vide order indicated above and it is against this acquittal the State has filed this appeal against the sole accused Mushtaq Ahmed, the then Clerk in the court of Sessions Judge Budgam.
3. We have heard learned counsel for the parties.
Mr. Manzoor G. A. read before us the entire evidence produced before the court below and we were also, taken through the order of acquittal, appealed against.
4. We on the basis of argument advanced propose to discuss the case in the first instance on merits.
5. The prosecution brought the charge sheet against the accused under sections 201,381, 1-0-B RFC and relied on evidence for criminal conspiracy extra-judicial confession of the accused and recovery of certain portion of the missing file allegedly from the room occupied by the accused in this acquittal appeal,
6. We firstly take up the evidence regarding criminal conspiracy. The prosecution has examined Ali Malik, Hira Lal and Naba Ganai.
7. Hira Lal PW states that he saw one of the accused in the compound on the date the case was fixed and detected lost
8. Ali Malik, Jamadar, state that he saw Mushtaq accused in conversation with the remaining accused in the court compound.
9. Naba Ganai, PW having stated that he heard Mushtaq accused, emphasising the assurance to the accused regarding missing of the file and asking them for remuneration and expression of Gh. Mohd. Qadiri that the accused is neighbour of one of the accused in the missing file. This is the whole evidence on record to gather aspect of conspiracy of which the accused were charged. Statement of Hira Lal PW is of no significance as he has not heard anything. Same is the case with Ali Malik PW who has not revealed the conversation of the accused in the missing file and Mushtaq accused. Then is the statement of Naba Ganai. This witness, no doubt refers the conversation of Mushtaq Accused with other co-accused giving assurance to them regarding the missing file and asking for remuneration which is not in sight in evidence, was it ever paid, when and how much. The testimony of this witness does not deserve to be relied simply by observing he has no previous acquitance with Mushtaq accused or the other co-accused who were facing trial in the missing file. The witness is a chance witness. He has not been able to give day, date when he heard the Conversation and appears having no special reasons to come into contact with the accused in any manner when he had no acquitance even with Mushtaq, who had recently been posted in the office of Sessions Judge Budgam. There is no dispute to this fact that for conspiracy director visible evidence is a rear chance which is to be gathered only by actions, omissions of the accused regarding the substantive offence. In this case firstly no connection has been established between Mushtaq and the other accused. All
