COURT OF JUDICIAL MAGISTRATE 1ST
CLASS PATTAN KMR.
Present :- Mahmud
Anwar Alnasir.
File
No. 122/B
.
D.O.Inst. 05-10-2012.
D.O. Decision: 07-02-2013.
In the Case of:
State
of J&K through SHO Police Station Pattan, FIR No. 233/2012 under section 457,
380 of RPC
Vs
Manzoor Ahmad Sheikh S/o, Gh. Qadir
Sheikh R/o, Wachi Salamabad Uri. .....Accused.
PO for the state present.
Accused under
custody
Ld. Counsel for
the accused also present
O R D E R
The instant charge
sheet was presented before this Court on 05-10-2012 by the ld. PO along with
the accused in custody , as there were no one to furnish bail on behalf of the
accused and the offences charged being 457/380 of RPC, as such the accused was
detained in judicial custody. Case was listed for 19-10-12, and prosecution was
directed to lead evidence, which was closed on 06-12-2012, after examining all
the witnesses of the prosecution listed in the charge sheet. On 26-12-2012, the
statement of the accused under section 342 of Cr.PC was recorded and the
accused was presented with an opportunity to lead defense, however, the counsel
for the accused had declined to present
defense evidence, as such it was listed for final arguments on 04-2-2012, after
closing the defense evidence and today again the case was listed for final
arguments and judgment.
The brief facts of the charge sheet are
that on 04-10-2012, the complainant has furnished a written report before the
Police Station that he had gone to visit his relatives at Ahmadpora and was
carrying his laptop (HP) . He had kept his laptop on the window however, in the
morning he saw the window broken and laptop stolen from the said place. On this
written application FIR No. 233/12, was registered at Police Station Pattan and
the investigation was endorsed to ASI Ab. Majeed who during the course of
investigation has prepared site plan seizure memo, arrest memo, recovery memo,
recorded the statements of prosecution witness under section 161 Cr.PC and
finally presented the charge sheet under section 457 read with 380 of RPC for
judicial determination.
The
brief gist on evidence on record is as follows:-
Statement of PW1
Mohasin Hussain S/o, Hyder Ali as recorded on
08-11-2012. In examination in chief by the ld
Po, he does not know the accused. On 03-10-2012, he had gone to visit
his relative. At his house he was sitting at Laptop and after finishing his
work he had kept the same on the window. When in the morning this PW woke up,
he saw the window broken and Laptop missing as such he presented written
application before the Police Station contents whereof are admitted by the PW
as such the same is exhibited as EXPW-1/1. Thereafter, Police asked this witness
to present the bill also.
In cross examination by the counsel for
the accused, he states that he does not know the number of the Laptop, however
it was HP Pavalion G-Series. He states that when he got the Laptop released from the Court, he presented
the receipt at that time. He does not know who broke the window at night, had
he known this he would have definitely woken up. He cannot say who took the
laptop, and he had hardly recognized it
he did not remember its number. However, he had kept a password in his Laptop
which he open before the Police. He does not remember the exact date of the
invoice. Then he stated that he had purchased the laptop seven months ago. It
was 10’o Clock in the morning when he went to the Police Station for
registration of his complaint. On the 2nd day of registration of
case he give the statement before Police and if this statement that he was in a
different room when the occurrence took place has been attributed to him under
section 161 of Cr.PC to that extent the statement is wrong and the statement
which he has furnished today is absolutely right. This PW has post graduated in psychology
however, he had not gone through the statement recorded by the Police under
section 161 of Cr.PC. He was all by himself in the room.
Statement of PW
Mohammad Ibrahim Jan S/o, Gh. Hassan Jan
as recorded on 06-12-12. In examination by the prosecution he states that he
saw the accused for the first time in the Police Station. This PW had a guest
in his house named Mumin Hussain who had
arrived with a laptop. This PW was sleeping in a different room and when in the
morning they woke up the laptop was missing from the room. Thjereafter Mumin
Hussain when to Police Post Kungamdara
and filed a written application, and thereafter Police recovered the Laptop
from some person. He has not given any statement before Police.
In cross examination he states that the guest
had arrived one day prayer to the occurrence and this witness had himself seen
the laptop with the guest , however he does not remember as to in what the
laptop was being carried, nor he knows the color and type of the Laptop. Laptop
was in the same room, where this PW and the guest was staying. Before going to
sleep this PW had closed the window and he did not hear when the window was
broken. Window was of Dewdar and the Middle piece was broken, who broke it he
does not know.
Statement of PW3
Constable Waseem Raja No. 972/B recorded on
08-11-201. In examination in chief that
he knows the accused present in the Court. On 04-10-2012, when this witness
along with constable Bilal Ahmad and SPO Mehraj-ud-Din was standing beneath his
Chinar Tree. When they saw the accused moving in suspicious circumstances, he
called the accused and asked for his ID Card however, he could not produce the same,
then the accused was searched and on his search some Rupees and one Laptop was
found. Then he informed the Police and after investigation he was taken to Police Station Pattan. The
seizure memo was shown to the PW who admits the contents as well as signatures
as such the same was exhibited as EXPW- 3/1. Recovery memo was also shown to
the PW who admits his signatures on the same and the same was exhibited as
EXPW- 3/2.
In cross examination he states that the check
point (NAKKA) were this PW was posted had three routes. The PW states that if the accused wanted he
could have run of towards Magam. Accused was not wearing any FERAN and was
wearing the same Kurta Pajama which he was wearing on the day of recording of
the statement. The accused after seeing them was at times coming forward and at
times moving back-wards. This is for the first time in his life that
the accused had himself come to them. He searched the accused and after seeing
the Laptop he informed the concerned Police post all these items were seized
from the accused at police post. Thereafter, the seizure memo was affected.
This PW searched the accused on the bridge and then at Police Post, ASI Ab.
Majeed searched the accused. Constable Bilal Ahmad and SPO Mehraj-ud-Din, SG
Fayaz Ahmad were also present at the time of preparing of seizure memo. SPO Mehraj-ud-Din has been shown as witness
to the seizure memo or not this witness cannot say. Thereafter, ASI Ab. Majeed
went to the spot and prepared the Site plan. The arrest memo was not prepared
in front of this PW.
Statement
of PW4 Constable Bilal Ahmad No.247/B as
recorded on 22-11-2012, the pw States that he knows the accused present in the
court. He has further stated that on 04-10-2012, he alongwith Waseem Ahmad
Constable and other officers of the police was posted at Kungamdara Bridge. The
accused was trying to conceal something
then they caught hold the accused and asked for his particulars, he was
searched and underneath his shirt there was a laptop and from his pocked
Rs.410/- were also recovered. Then they prepared seizure memo after search and
recovery memo, he admits the contents of both the memos and his signature
thereupon and the exhibits have already been exhibited as EXPW- 3/1 , EXPW- 3/2
respectively. He got his statement recorded before the Police.
In cross examination by the Ld.
Counsel by the accused he states that
about 8.o clock in the morning nearing bridge Kungamdara, they caught hold of
one person and this PW was their along with other Police officers. He has
signed the seizure memo on spot. ASI Ab. Majeed
had prepared the documents. He is working for the department for last
10/12 years. Accused was caught at the main road. This PW called Mohammad
Ibrahim on spot and then accused was taken to the Police Post he had searched the accused himself. IO, of
the case was Mr. Majeed. Anyone who is carrying his own baggage, carries it in
a proper way and everybody is free to carry his baggage from one place to
another. No report was received from the Police Station. He was posted at
Police Station Kungamdara. These people had asked for receipt from the accused,
however he could not produce any receipt. Laptop was black in color however, he
does not remember the number of the laptop, when this PW called the accused he
tried to run away and after two three steps he was apprehended . accused was
not wearing FARAN at that time. Search of the accused was carried out along
with all other Police officers.
Statement of PW 5 as
recorded on 06-12-12, ASI Ab. Majeed No. 108/BD.
In examination in chief he states that he knows the accused and he had caught
the accused. Mr. Mumin Hussain arrived in Police Post on 04-10-12 and submitted a written
application wherein he had stated that, he had been to his relative along with
his laptop of HP brand. After finishing his job on the Laptop he went to sleep
in the another room. It was also written in the application that the Middle
Plank (Dilla) of the window was broken and somebody has stolen the laptop. In
this regard an entry was made in the Daily Diary of Police Post and a copy their off was sent to Police
Station Pattan for registration of FIR. The witness admits the contents of the
copy which he had sent to Police Station Pattan as correct and true along with
his signature which is exhibited as EXPW- 5/1. Thereafter, this witness went to
the place of occurrence to prepare the site plan and he admits the contents
thereof along-with the signatures which is exhibited as EXPW-5/2. This witness
did not seize any instrument from that place. Then he recorded the statement of
PW’s 1 and 2. Thereafter, he took the Gypsy and went towards the Kungamdara
Bridge. On seeing this Gypsy the accused
tried to hide on the spot who was apprehended. Accused was apprehending on
spot he was wearing a Shirt and a Pajama. When he was asked about his name he
identified himself as Manzoor Ahmad Sheikh then during search no identity card
was found, however, two currency notes of Rs.100 each two currency notes of
Rs.20/- and sixteen one notes of Rs.10/- and Rs.5/- numbering two were also
found from the possession of the accused and apart from that one laptop was
also seized. The arrest memo was prepared this witness who admits the contents
thereof and the same is exhibited as EXPW- 5/3. He also admits the contents of
EXPW- 3/1 and 3/2 with regard to the seizure of Laptop as well as the recovery
of Laptop. The accused failed to produce any explanation with regard to the
possession of the Laptop as well as any receipt of the same.
In cross examination, he states that he
cannot say what time the accused was apprehended however, it was day time.
Accused was caught near Kungamdara bridge and it is correct that all the
vehicles proceeding from Pattan to Magam proceed through that way. Accused was
trying to conceal himself and when he saw Gypsy at a distance of about 50 feet
he tried to run but there was no scope for the same over the bridge. This
witness was accompanied by two witnesses Waseem Raja and Hillal Ahmad and he
was along with both the constables. He has not tried to pick up any foot prints
nor he has taken any expert with him. Window was broken but not separated from
the frame. The accused was apprehended on the same day on which the application
for registration of the case was presented. This witness caught the accused when
he was coming back from the place of occurrence. The place where from the
accused was apprehended, on the right hand side is water while as on the other
side there is open field. Later the witness states that this fellow could have
fled however he did not flee from the spot.
I have considered the evidence place
on record the materials on the file and the testimonies of the witnesses
examined during the course of trial . At
the very outset I must say, though I am not at pleasure while making the statement
that in case such people are manning the investigation no accused needs a
defense lawyer not to talk of the defense witnesses. The statement of the IO,
as recorded on 06-12-2012, contradicts the contents of how own prosecution
witnesses and in order to prove his extra ordinary efficiency, the IO, has lost
sight of the fact that the accused who
was apprehended by a route NAKKA party at 8.am in the morning could not have
been arrested by the IO, himself even if he takes the most speediest Gypsy
available with the Police department after registering an FIR at 11.15 am ,
while as the complainant reached the Police Post at 10 am for lodging of his complaint . the
purpose of mentioning the timings in every exhibit is to test the veracity and
truthfulness of the entries made by the
Police officers during the course of investigation, so that the emergent powers
conferred on the Police are not abused. However, this being a classical example
where a normal case of theft has been spoiled by the extra padding of the
investigating officer thereby assisting the acquittal of the accused. Let a copy of this judgment be sent to the
incharge of the District Police to at least conduct a training programme for
such IO’s who in their over enthusiastic
approach lose site of the basic ingredients and procedure for bring the accused
to book. This Court under the given
facts and circumstances though morally convinced of the theft being committed
by the accused on the basis of the
testimonies of the chance witnesses who were performing their duty at routine
NAKKA caught hold of the accused, and the accused was without any explanation
as to possession of the Laptop which never belonged to him but was surely of
the complainant. However, the investigator himself jumping over the witnesses
of the spot trying to be a spot witness rather than investigator has raised a
serious doubt to the veracity and truthfulness of the occurrence, and the
standard as laid down in the criminal jurisprudence being that if an event is
explainable by two possibilities, the possibility which favours the innocence
of the accused is to be given credence over the probability pointing towards
the guilt of the accused. That being so
the accused is acquitted of the charges in the instant charge sheet and is directed
to be released from custody.
The seized proper i.e. the Laptop is
finally released in favour of the complainant and he is discharged of his
Superdnama, further the prosecution is directed to release Rs.410/- to the
accused against the proper receipt. The instant charge sheet is accordingly
disposed off be consigned to records after its due compilation.
Announced;
07-02-2013 (Judicial Magistrate 1st. Class)
Pattan Baramulla Kmr,
