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2021 DIGILAW 112 (JK)

State of J&K v. Javed Iqbal

2021-03-24

SANJAY DHARZ, TASHI RABSTAN

body2021
Judgment Sanjay Dhar, J.—The instant appeal is directed against the judgment dated 18.09.2006 passed by the learned Principal Sessions Judge, Poonch, whereby accused/respondent No.1, namely, Javed Iqbal has been acquitted of the charges for offences under Sections 302, 307, 429, 436, 147, 148, 149 and 120-B RPC read with Sections 7/25, 26 and 27 of the Arms Act. 2. Briefly stated the case of the prosecution before the Trial Court was that the complainant, namely, Khalid Mehmood lodged a report with the Police Station, Surankote, alleging therein that during the intervening night of 28th and 29th June, 1999, 15-20 persons entered his house located at Mohra Bachai, Surankote. The said persons after conducting search of the house came out of it and after 10-15 minutes re-entered the house, abused the father of the complainant, whereafter they started spraying bullets upon sixteen inmates of the house. The assailants are alleged to have sprinkled petrol upon the dead bodies and set them on fire along with the house. The complainant, his wife, PW-Shoukat Ahmed and Changez Khan, who were staying towards the back side of the house, escaped from there through a window. 3. On the basis of the aforesaid report, the police registered an FIR No. 66/1999 for commission of offences under Sections 302, 307, 429, 436, 147, 148, 149 and 120-B RPC read with Sections 7/25, 26 and 27 of the Arms Act and started investigation of the case. After the investigation of the case, it was found that fifteen persons had died as a result of the incident, that had taken place in the house, which was in joint possession of Mohd. Azam and Mohd. Akram. Besides this, one buffalo and an Ox had also died on account of the house having been set on fire. However, PW-Zahida Akhtar, who was also present in the house along with fifteen deceased persons sustained injuries, but she had a miraculous escape. The statement of the injured PW- Zahida Akhtar was recorded by the Investigating Officer on 30.06.1999 in the hospital and in her statement, she disclosed that 15-20 persons were involved in the crime, out of whom, she identified the respondents, namely, Javed Iqbal, Mohd. Yasir and Muzaffer Hussain (hereinafter referred to as “the accused”). The police arrested respondent No. 1-Javed Iqbal on 30.07.1999 and after making certain inquiries from him, he was sent to Joint Interrogation Centre, Jammu. Yasir and Muzaffer Hussain (hereinafter referred to as “the accused”). The police arrested respondent No. 1-Javed Iqbal on 30.07.1999 and after making certain inquiries from him, he was sent to Joint Interrogation Centre, Jammu. However, the Investigating Officer did not find his involvement in the crime and he was given the benefit of Section 169 of the Cr.P.C. So far as the other two accused are concerned, they could not be traced. 4. The investigation was thereafter handed over to the Crime Branch, Jammu. The second Investigating Officer again recorded the statement of injured PW-Zahida Akhtar under Section 161 of the Cr.P.C on 16.09.1999 and thereafter, statements of other eye witnesses were also recorded. It was found during further investigation of the case that maternal aunt of the accused-Mohd. Yasir had been kidnapped by the militants on 31.01.1999, whereafter she was killed by the silting her throat. The accused had held the complainant and his family members responsible for the said murder and in this regard, they had lodged a report with the police. Accused-Mohd. Yasir and Javed Iqbal happen to be cousin brothers. In the same year, i.e., in 1999, another incident took place, in which Zarina Parveen, a relative of the accused persons, was kidnapped and killed by the militants and for this also, the accused put the blame upon the complainant and his family members. It was also found during the investigation that the accused had threatened to eliminate the complainant and his family. Thus, as per the investigation, all the three accused had personal scores to settle against the complainant and his family members, which prompted them to eliminate 15 family members of the complainant, who were staying in the house, in which the occurrence took place. 5. With the aforesaid findings, the Crime Branch presented the charge-sheet against all the three accused, namely, Javed Iqbal, Muzaffer Hussain and Mohd. Yassir. However, the accused, namely, Muzaffer Hussain and Mohd. Yassir could not be traced and they were declared as proclaimed offenders, whereas the proceedings against the accused/respondent No. 1-Javed Iqbal commenced before the Trial Court. 6. In terms of the order dated 25.02.2003, the learned Trial Court framed charges for offences under Sections 302, 307, 429, 436, 147, 148, 149 and 120-B RPC read with Sections 7/25, 26 and 27 of the Arms Act against respondent No. 1-Javed Iqbal and recorded his plea. 6. In terms of the order dated 25.02.2003, the learned Trial Court framed charges for offences under Sections 302, 307, 429, 436, 147, 148, 149 and 120-B RPC read with Sections 7/25, 26 and 27 of the Arms Act against respondent No. 1-Javed Iqbal and recorded his plea. The respondent/accused denied the charges and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of its case. The prosecution examined as many as 26 witnesses to prove the charge against accused-Javed Iqbal, whereafter statements of the said accused under Section 342 Cr.P.C was recorded. He refuted the evidence adduced against him. The accused came up with a plea that he has been falsely implicated on the basis of past rivalry between the parties. The accused also led evidence in defence and examined three witnesses. 7. The learned Trial Court after analyzing the evidence on record, came to the conclusion that the charges against the accused-Javed Iqbal are not established and, accordingly, the impugned judgment of acquittal came to be passed. 8. The appellant-State has challenged the impugned judgment passed by the learned Trial Court on the grounds that the statements of the eye witnesses like PW-Zahida Akhtar, PW-Changez Khan etc. have not been properly appreciated by the learned Trial Court while passing the impugned judgment; that there is sufficient evidence on record to record conviction against the respondent-accused, which has been ignored by the learned Trial Court; that the impugned judgment is not legally sustainable and as such, the same deserves to be upset. 9. We have heard learned counsel for the parties. We have also gone through the impugned judgment, the grounds of appeal and record of the Trial Court. 10. The charge against the respondent No. 1/accused, namely, Javed Iqbal is that during the intervening night of 28th and 29th of June, 1999, he along with other accused, entered the house of the deceased-Mohd. Aslam, located at Mohra Bachai and at that time, they were wearing army outfits, carrying arms along with them. It is further case of the prosecution that after entering the aforesaid house, the assailants indiscriminately fired upon the inmates of the house, which resulted in death of 15 persons, namely, Mohd. Azam, Mushtaq Khan, Mohd. Nisar, Yasir Azam, Shaheen Akhter, Naheeda Akhter, Hameeda Parveen, Mohd. Liaqat Khan, Rukhsana Begum, Rashid Khan, Waheed Khan, Mohd. It is further case of the prosecution that after entering the aforesaid house, the assailants indiscriminately fired upon the inmates of the house, which resulted in death of 15 persons, namely, Mohd. Azam, Mushtaq Khan, Mohd. Nisar, Yasir Azam, Shaheen Akhter, Naheeda Akhter, Hameeda Parveen, Mohd. Liaqat Khan, Rukhsana Begum, Rashid Khan, Waheed Khan, Mohd. Bashir Khan, Javed Iqbal, Motian Bi and Firdous Kouser and injuries to PW-Zahida Akhter. It is also alleged that the assailants sprinkled petrol on the dead bodies and set them on fire, as a result of which, besides the dead bodies, one buffalo, an ox and the joint house of the deceased Mohd. Azam and Mohd. Akram were charred. As per the prosecution case, besides the injured-PW-Zahida Akhtar, PW-Changez Khan, PW-Showket Khan, PW-Khalida Parveen and PW-Khalid Mehmood are eye witnesses to the occurrence. 11. PW- Zahida Akhtar-the injured, is the star witness whose presence on spot at the time of occurrence cannot be disputed. Her statement, therefore, is very crucial to the case of prosecution. The relevant portions of statement of PW-Zahida Akhtar reveal that in her examination in chief, she has stated that at the time of occurrence at about 12 midnight, when they were sleeping in the last room of the house, which comprises six rooms on the first floor and the rooms for cattle on the ground floor, she heard somebody talking on a wireless set, informing someone that they had reached the spot. The person carrying the set, knocked the door and he came inside. He demanded identity cards from Nisar and Liaqat and then went out. Thereafter, three persons came inside the room, out of whom two were masked. They demanded keys of almirahs and boxes and they took away the jewellery and cash from her box. One of the three persons was without mask. Thereafter, the inmates of the house, who were sleeping in other room were brought to her room and they were asked not to leave the room. The inmates of the third room were also brought to the same room, whereas PWs-Changez Khan, Mohd. Shouket Khan, Khalid Mehmood and Khalida Akhtar, who were sleeping in another room was lying locked from outside. Thereafter, the accused came into the room and opened firing and killed all of them. She also received a bullet injury. The inmates of the third room were also brought to the same room, whereas PWs-Changez Khan, Mohd. Shouket Khan, Khalid Mehmood and Khalida Akhtar, who were sleeping in another room was lying locked from outside. Thereafter, the accused came into the room and opened firing and killed all of them. She also received a bullet injury. The three accused went away and thereafter, came back and she kept on watching them. They again opened fire on dead bodies and thereafter, sprinkled petrol over them and set the house on fire. She identified one of the persons as Chauhan, a resident of Mohra Bachai, who was a surrendered militant. She also heard some people, asking accused-Javed Iqbal to run away from there. However, the injured in her cross-examination has categorically stated that she could not identify the masked assailants because of darkness. She has further clarified that she could not even recognise their voice. 12. From the aforesaid statements of the injured-Zahida Akhtar, it is clear that though the lady in her examination-in-chief, has named accused-Javed Iqbal as one of the assailants, yet in her cross-examination, she has categorically stated that she could not identify the assailants in the darkness and she could not even recognize their voice. In the face of this situation, the involvement of respondent No. 1-Javed Iqbal in the occurrence does not get established from her statement. The learned Trial Court has, thus, rightly refused to rely upon her statement made in the examination-in-chief, wherein she has pointed out that respondent-Javed Iqbal was one of the assailants. 13. That takes us to the statements of other eye witnesses to the occurrence, namely, PWs-Changez Khan, Mohd. Shouket Khan and Khalida Parveen. PW-Changez Khan has categorically stated that he along with three more persons was sleeping in the same house, in which the occurrence took place, but they were sleeping in a different room. According to him, at about 12 midnight, the accused-Javed Iqbal, Muzaffer Hussain and Mohd. Yassir brought all the inmates of the house to a single room, conducted search of the house and thereafter, sprayed bullets upon the inmates, killing 15 of them. He further stated that the accused sprinkled petrol on the dead bodies and set them on fire. According to him, PWs-Mohd. Shouket Khan, Khalid Mehmood and Khalida Parveen were also present in his room. He further stated that the accused sprinkled petrol on the dead bodies and set them on fire. According to him, PWs-Mohd. Shouket Khan, Khalid Mehmood and Khalida Parveen were also present in his room. In his cross-examination, he has reiterated that he identified the three accused. 14. PW-Khalida Begum has also given her statement on the same lines as that of PW-Changez Khan. However, PW-Mohd. Showket Khan, the third person, who was present in the same room along with PWs-Changez Khan and Khalida Parveen has stated that when the occurrence took place, all of them fled away and he could not identify the assailants. The fourth eye witness-PW-Khalid Mehmood, who also happens to be the complainant, has not been examined by the prosecution. 15. Before analyzing the statements of PWs-Changez Khan and Khalida Begum, who have supported the prosecution case and placing reliance upon the same, it is to be ascertained as to whether they were in a position to watch the actual occurrence. For this, we have to read their statements in conjunction with the site map of the place of occurrence, EXPW-VS/33. According to the aforesaid two eye witnesses, at the time of occurrence, they were staying in a room away from the room, in which the actual occurrence took place. According to the site map EXPW-VS/33, the aforesaid witnesses were sleeping in the room-Mark-I in the site plan, whereas the occurrence is stated to have taken place in the room Mark-A. There are rooms Mark B, C, G and H in between the rooms Mark-I and Mark-A. PW-Changez Khan has stated that the door of none of the other rooms opens towards the room, in which he was sleeping. However, there was a glass window pane in the said room. 16. Having regard to the location of the room, in which the occurrence is stated to have taken place vis-à-vis the location of the room, in which PWs-Changez Khan and Khalida Begum were sleeping, it is improbable that they would have been able to see the actual occurrence from there, as there were as many as four rooms in between these two rooms and these rooms did not have any opening leading to one another. It has also come in the statements of both PWs-Changez Khan and Khalida Begum that it was dark at night at the time of occurrence and there was no light. It has also come in the statements of both PWs-Changez Khan and Khalida Begum that it was dark at night at the time of occurrence and there was no light. Although PW-Khalida Begum has tried to make improvements during her cross-examination by stating that there was a lamp in her room, with the help of which she could see the occurrence, yet the same does not find mention in her statement recorded by police under Section 161 Cr.P.C. The existence of a lamp in the room has not been deposed to by no other witness present in the said room at the relevant time. In addition to this, the third inmate of the room-PW-Shouket Khan has clearly stated that though he was present in the room along with the other witnesses, i.e., PWs-Changez Khan and Khalida Begum, yet neither he could see the occurrence from the said room nor could he identify the assailants. Thus, keeping in view the fact that the occurrence is stated to have taken place at about 12 midnight when it was pitch dark and having regard to the location of eye witnesses, PWs-Changez Khan and Khalida Begum vis-à-vis the site of occurrence, it can safely be stated that it would have been impossible for them to identify the assailants. 17. In addition to the above, the statements of PWs-Changez Khan and Khalida Begum under Section 161 Cr.P.C have been recorded after three months of the occurrence and there is no explanation coming forth from the prosecution as to why their statements were recorded belatedly. The prosecution has not placed on record the statements recorded by the first Investigating Officer of Police Station, Surankote, although he has clearly stated that he did record the statements of witnesses under Section 161 Cr.P.C. Had those statements been placed on record, this Court would have been in a better position to ascertain as to whether implication of accused by the aforesaid prosecution witnesses was an afterthought or the same was genuine and reliable. The prosecution unfortunately has not placed on record the statements of the witnesses recorded by the first Investigating Officer and the fact that the prosecution has withheld the said material compels this Court to draw an adverse inference against the prosecution. 18. There is yet another aspect of the matter, which is required to be taken note of while drawing an adverse inference against the prosecution. 18. There is yet another aspect of the matter, which is required to be taken note of while drawing an adverse inference against the prosecution. The same is with regard to non-examination of the fourth eye witness and the complainant-PW-Khalid Mehmood. No explanation has come forth from the prosecution as to why PW-Khalid Mehmood has not been examined in the case. He is the person, who lodged the complaint with the police, on the basis of which an FIR came to be registered and he also happens to be the father of the injured-PW-Khalida Begum. According to PWs-Changez Khan and Khalida Akhter, PW-Khalid Mehmood was also present in the room, in which they were sleeping and naturally, he would have also perceived the same happenings, as was perceived by the aforesaid two witnesses. If the inmates of the room, in which these four witnesses were sleeping would have been able to identify the assailants, then certainly PW-Khalid Mehmood would have mentioned their names in the FIR. Though it is a beaten law that FIR is not an encyclopedia of the crime, yet in the facts and circumstances of the instant case, when as per the prosecution case, the inmates of room-Mark-I had been able to identify the assailants coupled with the fact that one of the injured happened to be the daughter of the informant, it is improbable that the informant would have missed or omitted to name the assailants in his complaint despite recognizing them, if not all, but some of them. 19. Apart from the above, the PW-Changez Khan has stated that he also accompanied PW-Khalid Mehmood at the time of lodging the FIR and they had named the assailants before the police. To the same effect is the statement of PW-Khalida Begum. In the face of these statements, we fail to understand as to why names of the accused did not figure in the FIR. The mystery could have been unravelled by the complainant-PW-Khalid Mehmood, but he has not been examined by the prosecution and no reason for the same is assigned. Thus, an adverse inference is drawn against the prosecution. 20. So far as the motive for the crime, i.e., previous enmity between the complainant party and the accused is concerned, the same is also not borne out from the record. PW-Mohd. Thus, an adverse inference is drawn against the prosecution. 20. So far as the motive for the crime, i.e., previous enmity between the complainant party and the accused is concerned, the same is also not borne out from the record. PW-Mohd. Akram has stated that the accused had planned to finish off his family by executing this plan at the time of marriage of his nephew when all the family members would be together. However, he did not attend the said marriage. In his cross-examination, he has stated that neither he himself overheard about this plan nor did he make any complaint before the police after hearing about the same. He has further stated that one-Sardar Khan had told him about this plan, who has since died. He has stated that he narrated this to Crime Branch, but the same does not find mention in his statement recorded under Section 161 Cr.P.C. 21. From the aforesaid statement of PW-Mohd. Akram, it becomes clear that the motive for crime, i.e., previous enmity between the parties is not established. The witness has categorically stated that he himself did not overhear about the plan and that he did not make any complaint to the police about it. The witness did not even mention this fact to the police during investigation of the case. His statement as regards previous enmity between the complainant party and the accused, therefore, becomes unreliable. In these circumstances, it cannot be stated that the prosecution has succeeded in establishing the motive for the crime. 22. There is yet another aspect of the case. It has come in the defence evidence as well as in the cross-examination of the prosecution witnesses that the complainant party has obtained certain benefits under SRO 43, which is applicable to cases of victims of militancy related incidents. This shows that the complainant party had projected their case as a militancy related incident before the government authorities and not as a case of personal enmity between the accused and them. Thus, the stand of the complainant party in the instant case is at variance with their case projected before the government authorities for obtaining the benefits under the aforesaid SRO. This throws doubt about the very genesis of the whole prosecution case. 23. Thus, the stand of the complainant party in the instant case is at variance with their case projected before the government authorities for obtaining the benefits under the aforesaid SRO. This throws doubt about the very genesis of the whole prosecution case. 23. In view of the foregoing analysis of the prosecution evidence on record, we do not find any ground to interfere with the findings and conclusions arrived at by the learned Trial Court. It is a settled law that in the case of judgment of acquittal passed by the Trial Court, the High Court in exercise of its appellate jurisdiction would be reluctant to interfere with such findings unless there are grave illegalities and perversities committed by the learned Trial Court. In the instant case, we do not find any illegality much less a grave illegality in the findings recorded by the learned Trial Court. 24. For the foregoing reasons, there is no merit in this appeal. The same is dismissed and the judgment of acquittal recorded by the learned Trial Court is upheld.