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2013 DIGILAW 142 (JK)

State Of J&K v. Shahnaz Khan

2013-03-11

JANAK RAJ KOTWAL, MOHAMMAD YAQOOB MIR

body2013
Per J.R. Kotwal, J. 1. This Acquittal Appeal has been filed by the State against judgment dated 21. 7. 2004 passed by the Sessions Judge, Kupwara, whereby the learned trial judge has acquitted respondent No. 2 of charges under secs. 302 and 201/34 R.P.C and 7/27 Arms Act and respondent No. 3 of the charge under sec. 109 RPC. 2. Prosecution case in a nutshell is that on 26 .8. 1995 PW-1, Lal Mir, lodged written information at Police Station, Kupwara informing that on 25. 8. 1995 at about 4 P.M some unidentified persons abducted Abdul Razaq Bhat (deceased) s/o Hasan Bhat from a Matadoor. On getting information about this abduction, his brother Gh. Mohi-ud-Din Bhat (deceased) set out for his rescue. At about 10.30 P.M., however, both the brothers were found dead on the road in Mohalla Ganipora. On this information FIR No. 243/1995 under sections 364 and 302 R.P.C & 3/25 Arms Act was registered at the said police station and investigation taken up. The investigating police, however, closed the case on 6.11.1995 as the culprits could not be traced. 3. Six years later, father of the deceased brothers, PW-8, Ghulam Hassan Bhat, however, lodged a complaint dated 7 .3. 2002 to Hon'ble Minister of State for Home Affairs alleging that his sons had been abducted from a passenger mini bus by Zaffar Ali Khan s/o Somandar Khan, Liyakat Ali Khan s/o Zaffar Ali Khan and Shahzad Khan s/o Yar Mohd Khan. Pursuant to this complaint, Superintendent of Police, Kupwara vide his order No.Crime/6/R-I/2002/2905-06 dated 22nd July, 2002, ordered re-opening of the investigation in FIR No. 243/1995 supra. 4.. Fresh investigation of the case came to be conducted and as a result, the investigating agency found that on 25.08.1995 deceased Razaq Bhat had boarded the Matadoor bearing Registration No. JK01-2649 from Kupwara on his way to his house at Banagam. Accused/respondent No. 3, Zaffar Ali Khan, was driving the Matadoor. He stopped the Matador at a place called Ganipora. Accused/respondent No.1, Shenaz Khan and accused/respondent No. 2, Liyakat Ali Khan, who were armed and accompanied with some other masked persons, appeared on spot. They got the passengers to alight from the Matadoor and lined them up. They caught and dragged deceased Abdul Razaq Bhat. Respondent No.3 also accompanied them. On getting information, deceased Gh. Mohi-ud-Din Bhat, brother of deceased-Abdul Razaq Bhat, ran for his rescue and help. They got the passengers to alight from the Matadoor and lined them up. They caught and dragged deceased Abdul Razaq Bhat. Respondent No.3 also accompanied them. On getting information, deceased Gh. Mohi-ud-Din Bhat, brother of deceased-Abdul Razaq Bhat, ran for his rescue and help. The respondents, however, beat both the brothers and shot them dead. The prosecution case further is that the investigator could not recover the weapon of offence (AK-47 Rifle) because the occurrence had taken place about seven years back and in the meantime accused had destroyed the weapon so offence under sec. 201 R.P.C was added to the case. 5. After completion of the investigation, police preferred charge sheet for commission of offences under secs. 302 & 201/34 R.P.C and 7/27 Arms Act against accused/respondents-1 and 2 and under secs. 302/34 RPC against accused/respondent No.3. Respondent No. 1, however, had absconded and could not be traced. The learned Committal court after drawing proceedings under section 512 Cr. P.C against respondent No. 1 committed the case to the Court of ld. Sessions Judge, Kupwara for trial of respondents 2 and 3. Finding prima facie case, learned trial Court framed charges under Secs. 302 & 201/34 R.P.C and 7/27 Arms Act against respondent No.2 and under Sec. 109 R.P.C against respondent No.3. 6. In order to prove the charges, the prosecution produced and examined 19 out of the 26 cited witnesses before the trial Court and their statements were recorded. 7. The learned trial Court on consideration of the prosecution evidence acquitted the respondents 2 and 3 holding that the charges for which they were tried were not proved. What is observed by the learned trial Court in its brief finding recorded in the impugned judgment is culled out as: "...It is an admitted fact that all the witnesses who as per the calendar have been shown to be the witnesses to the occurrence including Gh. Hasan Bhat the father of the deceased have expressed their ignorance about the occurrence so much so that they were declared hostile by the prosecution and as such the charge for which the accused were tried are not proved. As such the accused are acquitted" 8. We have heard the ld. Add. Advocate General (AAG) appearing for the appellant-State and the ld. counsel for the respondents and have gone through the impugned judgment and the record on the trial Court file. 9. Ld. As such the accused are acquitted" 8. We have heard the ld. Add. Advocate General (AAG) appearing for the appellant-State and the ld. counsel for the respondents and have gone through the impugned judgment and the record on the trial Court file. 9. Ld. AAG, Mr. J.A. Kawoosa, citing from the memo of the appeal, submitted that the learned trial Court has not given brief narration of the evidence and has, thus, failed to apply its mind to the material placed on record by the prosecution and that the learned trial Court has not given any reason for ignoring the circumstantial evidence comprising of the recovery of the weapons of offences, Post Mortem report and also recovery of the cartridges from the spot. It is also contended that the eye witnesses were under threat so they could not maintain their stand before the learned trial Court but the trial Court had failed to provide protection to the witnesses. 10. Per contra, Mr. A. M. Watali, Advocate, ld. counsel for the respondents, submitted that no incriminating material against the respondents was available in the evidence led by the prosecution before the ld. trial Court so they have been rightly acquitted by the ld. Court and the appeal filed by the State is without any merit. 11. Learned AAG when asked, failed to point out and draw our attention to any incriminating material, direct or circumstantial, against the respondents in the prosecution evidence led before the ld. trial Court. 12. We, however, have perused the entire evidence carefully and anxiously but could not find any material connecting the respondents with the abduction and killing of the deceased persons, directly or by implication or even remotely. 13. The witnesses examined by the prosecution are: Lal Mir (PW-1), Aslam Khan (PW-2), Gh. Hasan Mir (PW-3), Ali Mohd Lone (PW-4), Bashir Ahmed Khan (PW-7), Gh. Hasan Bhat (PW-8), Mst. Samya (PW-9), Abdul Rashid Khan (PW-10), Fakkar Mohd. Bhat (PW-11), Zaffar Ali Khan (PW-12), Gh. Mohd. Khan s/o Abdullah Khan (PW-14), Gh. Mohd. Khan s/o Sehzad Khan (PW-15), Mohd Shafi (PW-16), Gulzar Khan (PW-17), Sarvar Khan (PW-18), Gulab Khan (PW-19), Abdul Rashid Khan (PW-20), Sher Dil Khan (PW-21), Hasim Ali Khan (PW-22). All but one (PW-1) of them have been cited as eye witness of the occurrence. Bhat (PW-11), Zaffar Ali Khan (PW-12), Gh. Mohd. Khan s/o Abdullah Khan (PW-14), Gh. Mohd. Khan s/o Sehzad Khan (PW-15), Mohd Shafi (PW-16), Gulzar Khan (PW-17), Sarvar Khan (PW-18), Gulab Khan (PW-19), Abdul Rashid Khan (PW-20), Sher Dil Khan (PW-21), Hasim Ali Khan (PW-22). All but one (PW-1) of them have been cited as eye witness of the occurrence. PW-1 is the person who had lodged the First Information Report about the occurrence at Police Station, Kupwara on 26.8.1995. The eye witnesses comprise of parents (PWs-8 and 9) of the deceased. 14. A bare perusal of the evidence rendered by these witnesses would show that it contains not even a whisper to show or suggest the involvement of the accused/respondents in the occurrence much less to prove the commission of offences by them. None of the witnesses, not even the father or the mother of the deceased, have stated anything against the accused/respondents or have supported the prosecution case vis a vis the respondents. 15. Statement of father of the deceased persons (PW-8), on whose application, six years after the occurrence, the case was reopened would show that he had gone to the spot where the dead bodies of his sons were lying in the evening and has clearly stated that he does not know the persons who killed his sons. In cross examination by the prosecution after declaring him hostile, he has more than once excluded the involvement of the respondents in the killing of his sons. 16. Reference to circumstantial evidence in the appeal is imaginary because it is the prosecution case that neither the weapon of offence could be recovered by the investigator nor the postmortem reports could be collected from the doctor. 17. Prosecution has, thus, failed to prove the case and bring the guilt home against the respondents. So the trial Court could not but have acquitted the respondents and cannot be said to have fallen into any error by doing so. 18. It does neither lie with the prosecution--State to say in appeal nor acquittal can be challenged by saying that witnesses did not speak truth due to threat perception and Court did not provide them protection. Threat perception, if any, should have been taken care of by the prosecution/State during trial of the case and not reserved as a ground to be taken in appeal. 19. Threat perception, if any, should have been taken care of by the prosecution/State during trial of the case and not reserved as a ground to be taken in appeal. 19. For all what has been said above, we do not find any ground to interfere with the judgment of the ld. trial Court. 20. The appeal is therefore, dismissed as without merit.