CRA/5/2003 of MOHD. ASLAM QURESHI Vs ROBKAR on 30 May 2003

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR

Criminal Appeal No.05/2003Date of decision : 18[th]of July, 2007

Ghulam Mohammad Dar Vis State of J & K(Coram:

Hlon’ble Mr. Justice Virender Singh

Appearing Counsel:

The appellant stands convicted and sentenced under Section 456 of RPC vide impugned judgment of learned Sessions Judge,Badgam, dated 29-04-2003 and order dated 02-05-2003. The sentenceslapped upon him 1s to undergo rigorous imprisonment for a period ofeight months and to pay a fine of Rs.500/-, in default thereof to furtherundergo a simple imprisonment for ten days. Aggrieved by the same,he preferred the instant appeal.

At the very outset, it has been disclosed by Mr. M.H. Attar,learned counsel for the appellant, that the appellant has already servedhis substantive sentence of about seven months and a few odd days. He1s on bail now.

It is worth mentioning here that Tariq Ahmed Sheikh, the co-accused of the appellant, charged under Sections 302 and 307 RPC,stands acquitted by the learned trial Court. Admittedly, State has not.

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preferred any appeal against the acquittal earned by him. The appellantwas charged under Section 456 RPC only.

The prosecution case, in brief, 1s as under:

Wazeera 1s the deceased in this case, who was wife of realbrother of Tariq Ahmed Sheikh (since acquitted). Shaheena alias Dazi,a Star witness to the occurrence, 1s the sister of above said Tariq AhmedSheikh. She also received injuries 1n this occurrence. In fact, Shaheenaalias Dazi and Wazeera had received injuries at the hands of TariqAhmed Sheikh, who was allegedly armed with a dagger (knife). Theallegations against the present appellant are that he had establishedillicit sexual contacts with Shaheena, PW, and at the night intervening*[th]!7[th]July, 1998, he had entered into the house of Shaheena alias Dazi.When Tariq Ahmed Sheikh found him talking to his sister, he got angryand started beating Shaheena. She received knife injuries at the hands.of her brother. Wazeera (since deceased) wife of Abdul Rashid, (thereal brother of Tariq Ahmed Sheikh) also arrived at the spot to saveShaheena, but Tariq Ahmed Sheikh injured her also with the dagger(knife) and, ultimately, she succumbed to the injuries 1n the hospital.On these allegations, the case was registered with the concerned Police,which ended into filing of the challan against the appellant and theaforesaid Tariq Ahmed Sheikh. Both were charged accordingly, asstated hereinabove.

I do not feel the necessity of reproducing the entire evidence, asthe prosecution case is primarily hinging upon the statement of -3-|

Shaheena, the injured star witness, who happened to be in the house at.the time of occurrence. She did not support the case of the prosecution.before the trial Court and was declared hostile. The learned trial Court,while discussing her evidence in detail and also taking intoconsideration the other inherent flaws in the case of the prosecution,acquitted Tariq Ahmed Sheikh.

For the purposes of convicting the present appellant, thelearned trial Court observed that the accusation against him 1s that hehas committed lurking house-trespass into the house of PW GhulamMohammad Sheikh (father of Shaheena alias Dazi) at the relevant point:of time, 1.e., between 10 p.m. to 11.00 p.m. during intervening night of7[th]!<[th]July, 1998. It is then observed that so far as entry of the appellantis concerned, it 1s not disputed inasmuch as even PW Shaheena aliasDazi, to whom he was stated to have had some intimacy, has notexcluded his presence, and once his entry and his presence 1n the houseis established, the intention of being there at the late hours of the night.and without knowledge of the house owner could not have been good.The learned trial Court then observed that the appellant was an officialof the Police Department, and at the relevant point of time was.supposed to be at the Police Station itself and his presence on the spot.at that odd time 1s quite inexplicable. According to learned trial Court,his entry in the house, in fact, had annoyed the inmates which led to thepresent episode and, therefore, this all was enough to hold him guiltyunder Section 456 RPC. |

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Mr. Attar vehemently contends that the evidence on recorddoes not bring the case of the appellant within the mischief of Section456 RPC and it appears that the Court has given a moral tilt to the caseinstead of discussing the evidence on record. Dwelling upon hisarguments, the learned counsel then contends that the main accused inthe case was Tariq Ahmed Sheikh, who has been given clean chit bythe trial Court for the main charge of Sections 302 and 307 RPC,finding that the prosecution evidence 1s weak against him. The mainreason is that Shaheena did not support the case of the prosecution.Even if one reads the statement of Shaheena alias Dazi, who otherwisehas been declared hostile, 1t cannot be said that 1t was a case of lurkinghouse-trespass by night or house breaking by night by the appellant, so.as to hold him guilty under Section 456 RPC. The learned counsel hasread the entire evidence before me 1n support of his contentions.

On the basis of the aforesaid submissions, Mr. Attar prays foracquittal of the accused, which is opposed by the learned counsel forthe State, contending that the presence of the appellant during nighthours in the house of Shaheena itself 1s sufficient to maintain his.conviction under Section 456 RPC.

After hearing the rival contentions of learned counsel for boththe sides and going through the records minutely, I am of the view that.the prosecution has failed to prove the charge of Section 456 RPC to.the hilt against the accused and, therefore, he deserves acquittal.

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So far as the case of the appellant 1s concerned, it revolvesround the statement of Shaheena alias Dazi only. I have once againgone through her entire statement very carefully. She stated that on 6[th]of July, 1998, the appellant had come to their house at about 8.00 p.m.and asked about his brother Abdul Rashid, the husband of Wazeera(since deceased) and she disclosed that he had gone to Gulmarg. Shefurther stated that, in the meantime, Tariq Ahmed Sheikh reached thereand there was a scuffle between them. She did not whisper a word as to.how she had received the injury. With regard to the injury received byWazeera (since deceased), wife of Abdul Rashid, Shaheena again savedTariq Ahmed Sheikh. At this juncture, she was declared hostile andcross-examined by the PP. In her cross-examination, she hadcategorically stated that the appellant used to come to their residenceearlier also and he had come at 8/9 times. |

From the aforesaid evidence, it cannot be concluded that theentry of the appellant in the house was in the shape of lurking house-trespass by night or house breaking by night. Lurking house-trespass 1sdefined in Section 443 of RPC, which reads that whoever commits|house-trespass having taken precautions to conceal such house-trespass_from such person, who has a right to exclude or eject the trespasserfrom the building, tent or vessel, which is the subject of the trespass, 1s.said to commit “lurking house-trespass”. If one reads the evidence ofShaheena alias Dazi, the star witness of the prosecution, in my view,the case of the appellant does not fall within the mischief of lurking -6 -|

house-trespass. Technically, the case of the appellant is not of housebreaking also and, therefore, it cannot be said that he has committedhouse breaking by night, so as to punish him under Section 456 RPC,where the punishment of lurking house-trespass or breaking house bynight 1s provided.

Another material fact, which cannot be lost sight of, 1s that it 1sthe case of Shaheena herself that the appellant was having friendlyrelations with her brother and that is the reason that he was a frequentvisitor to their house. Even on the date of occurrence, he asked about:his friend (brother of Saheena), who was incidentally out of house,without visualizing as to what would be the reaction of Tariq AhmedSheikh on his routine entry to the house. Even if Tariq Ahmed Sheikhwas having any doubt in his mind about any illicit relation of theappellant with Shaheena alias Dazi, that cannot be stretched to theextent that the appellant had committed offence of lurking house-trespass or house breaking by night. It was after all a reaction of aparticular person to a particular situation. For that the appellant cannotbe blamed at all.

It appears to me that the Court has more or less given a moraltilt to the present case while holding the appellant guilty for the charge,whereas the prosecution case 1s stumbling badly qua him on all counts.Moral conviction has no place in criminal jurisprudence and the Court.is not expected to be swayed by any sentiment as this approach cannotsustain in the eyes of law.

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In view of the aforesaid discussion, I find no hesitation inconcluding that the prosecution has not been able to prove its caseagainst the appellant beyond any shadow of reasonable doubt, so as tomaintain his conviction for the offence he was charged with.Consequently, the impugned judgment of conviction and sentencedeserves to be set aside. Ordered accordingly.

The next result is that the instant appeal is allowed and theappellant 1s acquitted of the charge. He is discharged of his bail bondsforthwith furnished by him during the pendency of the instant appeal.

SrinagarJuly 18, 2007T.Arora, PS.

(Virender Singh)Judge