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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
State of J&K - Appellant
Versus
Shamsheer Hussain - Respondent
CRAA No.13 OF 2008
Decided On : 07-06-2019
Criminal Procedure Code1973 - Section 161 – Investigation – FIR - Criminal revision has been filed by State against order judgment August passed by Principal Sessions Judge Retour in case titled Sham sheer - State by virtue of which appeal filed by respondent herein has been allowed and accused respondent herein has been acquitted – Appellant State has challenged the impugned order ground that Sessions Judge has appreciated and misconstrued law attracted to facts of present case that court below has committed grave error of law which has resulted in passing of impugned judgment that prosecution has successfully proved allegations leveled against respondent herein and oral and documentary evidence produced during trial has undoubtedly established commission of alleged offences by respondent herein –Held, Prosecution and there is presumption of innocence in favor of accused until contrary is proved - Criminality is not to be presumed subject course to some statutory exceptions - There is no such statutory exception pleaded in present case - In absence of any material on record no presumption of rashness or negligence could be drawn by invoking maxim res liqueur” - There is evidence to show that immediately before truck turned turtle there was a big jerk - It is not explained as to whether jerk was because of uneven road or mechanical failure - Motor Vehicle Inspector who inspected vehicle had submitted his report - That report is not forthcoming from record and Inspector was not examined for reasons best known to prosecution - This is serious infirmity and lacuna in prosecution case Court to convert finding of acquittal into one conviction in view of provisions of Section High Court cannot reverse pure findings of facts based on appreciation of evidence unless some perversity of law or facts is found - Power of revision being discretionary it has to be exercised judiciously and not arbitrarily - Jurisdiction of High Court section is to be exercised only in exceptional cases when there is glaring defect in procedure or there is manifest error on point law and there has consequently been flagrant miscarriage of justice - In guise of revision court cannot exercise power of appeal where scope is large because appellate court has full power to re appreciate evidence like trial court which is not vested to provisional court – Order accordingly
JUDGMENT :
1. This criminal revision has been filed by the State against the order/judgment dated 30th August, 2007 passed by learned Principal Sessions Judge, Rajouri in case titled Shamsheer Hussain vs. State by virtue of which appeal filed by the respondent herein has been allowed and accused (respondent herein) has been acquitted.
2. Appellant-State has challenged the impugned order dated 30.08.2007 on the ground that learned Sessions Judge has mis-appreciated and misconstrued the law attracted to the facts of the present case; that the court below has committed grave error of law, which has resulted in passing of the impugned judgment; that the prosecution has successfully proved the allegations levelled against the respondent herein and the oral and documentary evidence produced during the trial has undoubtedly established the commission of alleged offences by the respondent herein.
3. The prosecution case in brief is that on 12.03.2001, SHO Police Station Rajouri gave a telephonic message to Police Station Thanamandi that a matador bearing registration no.JKO2D/1549 was destined from Kalakote to Plunger and because of rash & negligent driving of driver Shamsheer Hussain met with an accident at Nerojaal. The vehicle was boarded with a Barat Party. As a result of accident four persons, namely, Anait Ali Shah, Talab Hussain Shah, Zafar Hussain Shah and Abdul Aziz died on spot and about 18/20 persons got injured, who have been shifted to hospital. On receiving this information, FIR no:14/2001 for the commission of offence punishable under Sections 279/337/338 and 304-A RPC stood registered at Police Station, Thanamandi against the accused and investigation of the case was entrusted to Mohd. Rafiq Chohan, S.I. who after proceeding to the Hospital at Rajouri, got the injured persons medically examined beside recording the statement of prosecution witnesses under Section 161 Cr.P.C. He also received the dead bodies from Police Station, Rajouri and delivered the same to the legal heirs of the deceased against proper receipt and also taken the photograph of the dead bodies and prepared the site plan and during the further course of investigation, I.O besides seizing the documents of the vehicle under question also got the same mechanically examined. The accused was taken into custody, who was later on admitted to bail by the court. The I.O has also obtained the medical report with regard to the eighteen persons injured in the said accident and finally after the conclusion of the investigation the challan was presented before the court under Section 279/304-A RPC.
4. After production of the challan before the JMIC Thanamandi, accused was charged sheeted on 24.09.2001 and he denied acquisition.
5. During the course of trial, prosecution produced PW1 Mohd. Altaf, PW2 Gulam Rasool Shah, PW3 Mohd. Iqbal, PW4 Mubarak Hussain Shah, PW5 Shah Jan, PW6 Mushtaq Hussain Shah, PW7 Zakar Hussain Shah, PW8 Azad Hussain Shah, PW9 Juned Hussain Shah, PW10 Kramat Hussain Shah, PW11 Khalid Hussain, PW12 Mushtaq Ahmed, PW13 Shabir Ahmed, PW14 Manzoor Ahmed Shah, PW15 Mehmood Hussain and PW16 Mohd Bashir Choudhary.
6. The learned JMIC, Thannamandi after conclusion of the trial, convicted the accused on 25.05.2006 and sentenced him to undergo simple imprisonment for four months for the commission of offence u/s 279 RPC and to pay fine of Rs.500/- for the commission of said offence. He was also sentenced to undergo simple imprisonment of two months for the commission of offence u/s 337 RPC and to pay a fine of Rs.200/-. The accused shall further undergo simple imprisonment of two years for the commission of offence u/s 304-A RPC and is also sentenced to pay a fine of Rs.2000/-. In default of payment of fine; the accused shall undergo simple imprisonment for one month. In aggregate for the commission of all the above referred offences, the accused shall undergo simple imprisonment for two years and six months and shall pay a fine of Rs.2700/- in total.
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