Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 529 (JK)

Farooq Ahmad v. State of Jammu & Kashmir

2022-09-26

ALI MOHAMMAD MAGREY, MD.AKRAM CHOWDHARY

body2022
JUDGMENT Chowdhary, J. - Appellant namely Farooq Ahmad was convicted for the commission of offence punishable under Section 302 RPC for committing murder of one Aijaz Ahmed S/O Fazal ullah Khan R/O Basti Bhaderwah and for the commission of attempt to murder punishable under Section 307 RPC for injuring Arshad Ahmed S/O Fazal ullah Khan R/O Basti Bhaderwah on 19.10.2000 at 9.30 PM, by the court of learned Sessions Judge Bhaderwah vide judgment dated 25.03.2015 and was sentenced to rigorous imprisonment for life and fine of Rs.50,000/-, and in case of default of payment of fine he was ordered for further simple imprisonment of one year, besides to undergo rigorous imprisonment for five years and a fine of Rs.5000/- under Section 307 RPC and in default of payment of fine he was ordered for further simple imprisonment for a period of six months. The sentences were ordered to run concurrently. 2. The First Information Report (FIR) was received at the Police Station Bhaderwah on 19.10.2000 from some source that at 9.30 PM, some unknown militants after hatching a conspiracy barged into the house of one Fazal ullah Khan at Basti Bhaderwah with arms and ammunition and in order to commit murder of his sons Aijaz Ahmed and Arshad Ahmed, fired indiscriminately, rendered both of them seriously injured due to which Aijaz Ahmed succumbed to his injuries on spot, whileas, Arshad Ahmed was rushed to the hospital for treatment. 3. On the basis of this report a case was registered vide FIR No.222/2000 for the commission of offences punishable under Sections 302/307/326/120-B RPC and 7/27 Arms Act and the investigation was commenced. During the course of investigation, the I.O visited the hospital where injury form of the injured Arshad Ahmed was filled and thereafter I.O proceeded to the place of occurrence and prepared a site place, custody of the body of the deceased Aijaz Ahmed was taken over for conducting post mortem which was later on handed over to his legal heirs. 4. After investigation of the case, the charge-sheet for the commission of offences punishable under Sections 302/307/326/120-B RPC and 7/27 Arms Act was laid in the court of law against Farooq Ahmad @ Fareed code Khalid S/O Abdul Rashid Sheikh R/O Basti Tehsil Bhaderwah and Tariq Usmani code Hamza S/O Gh. Qadir Sheikh R/O Dandi Tehsil Bhaderwah. 5. 4. After investigation of the case, the charge-sheet for the commission of offences punishable under Sections 302/307/326/120-B RPC and 7/27 Arms Act was laid in the court of law against Farooq Ahmad @ Fareed code Khalid S/O Abdul Rashid Sheikh R/O Basti Tehsil Bhaderwah and Tariq Usmani code Hamza S/O Gh. Qadir Sheikh R/O Dandi Tehsil Bhaderwah. 5. After committal of the case to the trial court the file was consigned to records on 23.05.2002 as the Public Prosecutor had chosen not to examine any prosecution witness in the absence of accused. The proceedings were, however, revived in the month of April 2009, when accused Farooq Ahmad @ Fareed code Khalid (appellant herein) was arrested and produced before the court, whereas, the other accused namely Tariq Usmani was reported to have been killed in an encounter with the security forces. 6. The appellant- accused was charge-sheeted for the commission of aforementioned offences vide order dated 16.05.2009, who pleading innocence, denied the charge and claimed to be tried. 7. Prosecution, in order to prove its case to bring home the charge against the appellant-accused, examined 14 witnesses. The incriminating evidence led by the prosecution against the appellantaccused was explained to him, who on being examined in terms of Section 342 of J&K Cr.PC, pleaded false implication and he was directed to enter upon his defence. Appellant-accused had examined four defence witnesses. 8. The trial court, after hearing arguments and appreciating the evidence led by the both sides, vide impugned JUDGMENT held that the accused was not found guilty for the commission of any other offence of which he was charged, except for the commission of offences punishable under Sections 302/307 RPC and sentenced him to imprisonment, besides fine. 9. The trial court made the Reference to this Court for confirmation of the sentence of life imprisonment awarded under Section 302 RPC and the appellant had also filed the Appeal against the impugned JUDGMENT dated 25.03.2015 passed by the Sessions Court Bhaderwah in File No.03-A/Sessions Challan. The instant Appeal was admitted to hearing on 11.09.2015. The Reference and Appeal had been entertained in Jammu Wing of this Court, however, on a motion laid by the appellant-accused, the Hon'ble Chief Justice vide order dated 20.05.2016 passed in Cr.TA No.41/2015 ordered transfer of this matter from Jammu wing to Srinagar wing of this Court. This is how the matter is before this Bench. The Reference and Appeal had been entertained in Jammu Wing of this Court, however, on a motion laid by the appellant-accused, the Hon'ble Chief Justice vide order dated 20.05.2016 passed in Cr.TA No.41/2015 ordered transfer of this matter from Jammu wing to Srinagar wing of this Court. This is how the matter is before this Bench. 10.Through the medium of the instant Appeal, the appellant has challenged the impugned JUDGMENT passed by the trial court on the grounds that the learned trial court has not appreciated the evidence on record and the impugned judgment is based on assumptions and guess work; that the witness namely Fazal-ullah Khan, father of the deceased, who has been cited as an eye witness at the time of occurrence was not in the town, which fact has been testified by I.O namely Mohd. Ramzan Naik in his crossexamination wherein he has clearly stated that this witness was not present in his house on the fateful day, who as per his own statement was at Jammu on that day where he received the information about the occurrence; that the eye witnesses are the family members of the deceased and being interested witnesses their evidence cannot be fully believed and relied upon; that the alleged weapon of offence used in the crime was not recovered and the appellant was falsely implicated in the case at the behest of some vested elements in the police department because the appellant was leading a peaceful life after he voluntarily surrendered before the police in the year 2004; that the statement of I.O in its entirety and the improvements made by the so-called witnesses in their statements shatter the whole edifice of the prosecution case; that the deceased who was also a former militant, there is every possibility of the deceased to have been killed by someone else. 11. Mr. Hussain, learned Senior counsel appearing for the appellantaccused, with all vehemence at his command, argued that the trial court judgment is against the facts and law, as it has utterly failed to appreciate the evidence on record and the judgment is based on conjectures and surmises, ignoring the contradictions in the statements of the prosecution witnesses particularly eye-witnesses. He has further argued that the appellant-accused accepts the evidence on record, however, on its basis the conviction under Section 302 RPC is not established. He has further argued that the appellant-accused accepts the evidence on record, however, on its basis the conviction under Section 302 RPC is not established. He has assailed the impugned judgment, firstly, on the point that the trial court on one hand has recorded that the offence under Section 7/27 Arms Act is not proved, whereas, on the other hand learned Judge has recorded that the appellant-accused has committed offences punishable under Sections 302/307 RPC by use of a fire arm. He has argued that neither the weapon of offence was recovered nor the seized cartridge/empties had been sent to any ballistic expert so as to formulate the opinion as to which weapon had been used. He has also argued that the medical expert cannot be the competent witnesses to say that the injury has been caused by a bullet. Secondly, he has argued that since there were two accused and without there being charge of criminal conspiracy or abetment how one of the accused can be convicted, when another is also alleged to have participated in the same commission of offence. Thirdly, he argued that in view of the indiscriminate firing by all the accused including the appellant herein, it cannot be said that the appellant -accused had intention to kill the deceased. The accused who were terrorists may have fired to terrorize but there is no evidence so as to bring home the charge that he had intention to kill or knowledge with regard to result of his act of firing to kill a person. He further argued that in case the court is of the opinion that there is sufficient evidence to constitute the offence, the maximum which can be held is that the appellant-accused was liable to be convicted under Section 304 RPC instead of Section 302 RPC. He has finally argued that the appeal filed by the appellant - accused be allowed and the impugned judgment and sentence, recorded by the trial court, be set aside, there being no clinching evidence to prove the offence punishable under Section 302 RPC. 12. Ms. Padroo, learned AAG, appearing on behalf of the respondent, however, supported the impugned JUDGMENT. She contended that the appellant-accused has been convicted for heinous offences of murder and murderous assault and that the trial court, after passing lucid judgment, has recorded conviction of the appellantaccused. 12. Ms. Padroo, learned AAG, appearing on behalf of the respondent, however, supported the impugned JUDGMENT. She contended that the appellant-accused has been convicted for heinous offences of murder and murderous assault and that the trial court, after passing lucid judgment, has recorded conviction of the appellantaccused. She further contended that non-recovery of incriminating material from the accused cannot be a ground to exonerate the appellant of the charges when the eye-witnesses, examined by the prosecution, are found to be trustworthy. Learned AAG prayed that the impugned JUDGMENT be upheld, the sentence of life imprisonment be confirmed and appeal be dismissed. 13. Heard, perused and considered. 14.The precise charge against the appellant -accused is that on 19.10.2000 at 9.30 AM he along-with other militants barged into the house of the deceased and the injured at Basti Bhaderwah and fired at them with prohibited arms/ammunition as a result of which deceased Aijaz Ahmed died on spot, whileas Arshad Ahmed got injured and the accused along-with others escaped. While investigating the case, it has come to fore that the deceased Aijaz Ahmed @ Bita was a surrendered militant of banned militant outfit HM who was being pressurized by the active militants of the aforesaid outfit to again come back to their fold which was refused by the deceased. Having felt insulted by the refusal of the deceased, the accused persons struck into the house of the victims on the fateful day and killed the deceased Aijaz Ahmed by firing indiscriminately upon him and in the same incident caused serious injuries to his brother Arshad Ahmed. 15.The prosecution has cited Jana Begum, mother of the deceased, Fazal ullah Khan, father of the deceased, Arshad Ahmed (injured), Khursheed Ahmed and Riaz Ahmed, brothers of the deceased, as eye witnesses in the case, whereas, others were formal witnesses, besides, medical/ballistic experts and I.O. 16. PW-1 Jana Begum and PW-4 Faiz ullah Khan, parents of the deceased, who had been cited as eye witnesses to the occurrence, deposed that on 19.10.2000 at about 9.30 PM they were sitting at their home and heard sound of firing from outside their house due to which they went out and found their son Arshad lying in an injured condition, in the meanwhile appellant-accused entered inside their house and after catching hold of the deceased, forcibly took the deceased to the second floor of the house. They also followed the accused to the second floor of their house and saw accused killing their son after firing from a fire arm, on which they raised alarm, but they were threatened by the accused. 17. PW-2 Arshad Hussain, bother of the deceased, who survived in the said attack, deposed that the accused was known to him; that on the fateful night at about 9/9.30 PM he came out of his house for easing himself and when he came out from the bathroom, accused fired at him due to which he received bullet injuries on his abdomen, legs and knees and fell down and thereafter he saw accused going inside the house who took deceased to the second floor of the house, thereafter he heard sound of firing and came to know about the killing of the deceased. He had also seen the accused coming out of the house, who fled away from the spot. 18. PW-8 Riaz Ahmed and PW-11 Khurshid Ahmed stated that the accused is known to them and on 19.10.2000 at about 8-9 PM they were present in their house in the upper storey and heard sound of gun fire from outside the house due to which they came out of the room and saw accused forcibly taking their brother Aijaz Ahmed (deceased) towards the third floor of the house where the deceased was shot dead by the accused and he fled away. Thereafter, they went outside and saw their other brother PW-2 Arshad lying in an injured condition, who was rushed to the hospital. 19. Prosecution had also examined PW-Dr. Hamid Zargar, who had conducted post-mortem on the body of the deceased Aijaz Ahmed on 20.10.2000 stated to have found one wound of entry 1 1/2 cm x 1 1/2 cm in size on left pre-auricular region with blackening of wound and another lacerated wound of 1 1/2' x 1' in size with fractures under lying temporal and mandibular bones. He had deposed that death of the deceased was caused due to direct injury to vital vessels at base of skull leading to excessive bleeding with cardio respiratory arrest and admitted his post-mortem report ExPW-HZ, as correct. His further deposition is that the injuries received by the deceased were sufficient to cause death in the normal course; that the injuries were caused by a single bullet shot. 20. PW-Dr. His further deposition is that the injuries received by the deceased were sufficient to cause death in the normal course; that the injuries were caused by a single bullet shot. 20. PW-Dr. Javed Iqbal has issued the certificate exhibited as Ex.PW-JI regarding injuries received by Arshad Hussain (injured brother of deceased), who on investigation found the injuries on the body i.e., multiple rib fractures on left side; injury on the left and right shoulder joints and right scapular region; gleutal injury that is a wound of entry. 21. The scientific expert PW- Mool Raj, who had received four sealed packets from SDPO Bhaderwah for chemical, microscopic and serological examination for the presence, origin and groups of blood, in his deposition stated that the blood sample of the deceased was not forwarded to him for testing. He admitted the contents of opinion given by him exhibited as EXPW-MR, as correct. 22. PW Mohd. Ramzan Naik, I.O, deposed that he was entrusted the investigation of the case and on the basis of the statements of eyewitnesses recorded under Section 161 Cr.PC and other evidence collected, found the appellant-accused Farooq Ahmed involved in the murder of the deceased. 23.The trial court has relied upon the statements of eye-witnesses and rightly so, as the evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased, as in a normal course close relatives of the deceased are not likely to implicate a person falsely in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism. The eye-witnesses, in the case on hand, were the father, mother and brothers of the deceased and it is not acceptable that such a close relation would falsely implicate an innocent person to cover-up the real culprit. Relationship is not a factor to affect the credibility of the witnesses as the relative would not conceal the actual culprit and make the allegations against an innocent person. Foundation has to be laid if the plea of false implication is made. In those cases, the court has to adopt careful approach and analyze the evidence to find out whether it is cogent and credible. However, no such foundation was laid at any stage of the trial by the appellantaccused. Foundation has to be laid if the plea of false implication is made. In those cases, the court has to adopt careful approach and analyze the evidence to find out whether it is cogent and credible. However, no such foundation was laid at any stage of the trial by the appellantaccused. The trial court has, thus, rightly rejected the plea that the witnesses being the close relatives and consequently are partisan witnesses and should not be relied upon. 24.The appellant, through his counsel, has admitted the evidence led by the prosecution and the learned senior counsel has argued that on the basis of the evidence which has been accepted by the trial court, the offence under Section 302 RPC cannot be made out for the reason that the appellant, though being charged for having committed offence punishable under Section 7/27 Arms Act, was acquitted of the same and once the trial court reaches to the conclusion that the prohibited fire arm was not used, the charge of murder cannot be proved, which is alleged to have been committed. 25. The Apex Court in a case titled Gurcharan Singh Vs. State of Punjab reported as (1963) 3 SCR 585 held that it is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by postmortem notes are so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. The evidence of the ballistic expert is of corroborative nature when there is no satisfactory direct evidence. The examination of ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. The same view has been taken by the Apex Court in a case titled State of Punjab Vs. Jugraj Singh & Ors. reported as 2002 (1) Supreme 629 holding that the creditworthiness of the case is not demolished in absence of sending weapon of offence, guns, to ballistic expert for examination, for his expert opinion. In the present case, the weapon used in the commission of offence had not been recovered till the charge-sheet was made, as the accused including appellant were members of a terrorist organization and the appellant could not be apprehended till 2009 and by that time the other accused had been killed in some encounter with the security forces. In the present case, the weapon used in the commission of offence had not been recovered till the charge-sheet was made, as the accused including appellant were members of a terrorist organization and the appellant could not be apprehended till 2009 and by that time the other accused had been killed in some encounter with the security forces. 26. Learned counsel for the appellant has relied upon the judgment of the Hon'ble Apex Court in a case titled Daya Nand Vs. State of Haryana reported as AIR 2008 SC 1823 , whereby it has been held that the solitary injury with a gun shot fired by the accused hitting the deceased on waist would not constitute the offence of murder and the accused is liable to be convicted under Section 304 Part-II. 27. This case is distinguishable, having regard to the fact situation of the present case in view of the fact that the injury in that case was on waist of the deceased whereas, in the case on hand, it was on the vital body part, which could be sufficient to cause death of the deceased. The medical expert deposed that the cause of death was direct injury to vital vessels at base of skull. The contention of learned counsel for the appellant that the accused being the member of the terrorist group would have fired shots to terrorize the victim and the prosecution has failed to prove his intention to kill the deceased, seems to be misplaced in view of the fact that the appellant had fired with a prohibited weapon 'AK-47' and that too on the vital body part of the deceased and from this it can rightly be inferred that the appellant-accused had intention to eliminate the deceased and PW Arshad (injured). 28. For the sake of arguments, even if, the contention of the learned counsel for the appellant is accepted that the intention was not proved by the prosecution, however, the appellant-accused was in knowledge that such injury, which he was going to cause to the deceased, could be sufficient for his death. It is not only the intention but also the knowledge which can constitute the offence of murder. It is not only the intention but also the knowledge which can constitute the offence of murder. To constitute the offence of murder, the prosecution is under obligation to establish quite objectively that a bodily injury is present; that the nature of such injury must be proved and it must be proved that there was an intention to inflict that particular bodily injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. Lastly, it has to be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature and this part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 29. The contention, on behalf of the appellant that the offence of murder is not constituted, in absence of the intention of the appellant to kill the deceased and at the most offence punishable under Section 304 RPC (culpable homicide not amounting to murder) may be constituted, is not tenable. The intention of an accused has to be inferred from the attending circumstances, such as, how and in what manner offence was committed. Shooting with an 'AK rifle' having target of the face/head of the deceased and the bullet hitting the deceased on the vital vessels at base of skull leading to excessive bleeding with cardio respiratory arrest, with no stretch of imagination can be said to be without intention to kill or without having knowledge that the bullet injuries caused on vital parts of the body may cause death of the deceased. 30. The other contention of learned senior counsel for the appellant that the Test Identification Parade of the accused was not conducted and in this regard relied upon the case titled Rajesh @ Sarkari & Anr. Vs. State of Haryana reported as 2021 Cri. L.J. 206, whereby the Supreme Court had held that the Test Identification Parade assumes importance and in such case the accused person is entitled to benefit of doubt. Vs. State of Haryana reported as 2021 Cri. L.J. 206, whereby the Supreme Court had held that the Test Identification Parade assumes importance and in such case the accused person is entitled to benefit of doubt. This case is also distinguishable in view of the fact that the accused, who had committed offence, was known to all the eyewitnesses and they had identified him at the very outset, and it was not the case of unknown identity that the Test Identification Parade was required to be conducted. 31. The main argument of learned senior counsel for the appellant is that the weapon of offence was not recovered, as such, the offence under Section 7/27 Arms Act was not proved. Therefore, this plea is required to be analyzed as to whether on the basis of the prosecution evidence, offence of murder can be said to be proved. The Hon'ble Supreme Court in a case titled Umar Mohammad & Ors. Vs. State of Rajasthan reported as (2007) 14 SCC 711 , held in an identical case, where the weapon of offence was not recovered, that in any event non-recovery of incriminating material from the accused cannot be a ground to exonerate him of the charges when the eyewitnesses examined by the prosecution are found to be trustworthy. The Hon'ble Apex Court in another case titled Krishna Mochi & Ors. Vs. State of Bihar reported as 2002 Cri .L.J 2645, also held that recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more-so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found to be unimpeachable. 32. Non-recovery of the use of prohibited weapon, in the case on hand, can be explained in a way that the offence was committed by the appellant-Farooq Ahmed on 19.10.2000 when he was an active militant and it was only in the year 2009, after filing of the chargesheet, that the prosecution succeeded to apprehend him and produce him in the court of law. 33. 33. In our considered opinion, there is unimpeachable ocular prosecution evidence about the culpability of the appellant/accused and the medical expert proved the nature of injuries, non-recovery of weapon cannot be a deciding factor to disbelieve the substratum with regard to main offence of murder in the prosecution case. In the case on hand, as there is clear eye-witnesses' account of the incident and deposition of none of the eye-witnesses could be shaken during their cross-examination who stuck to their recollection of the facts relating to the incident. Mere fact that the weapon of assault or a bullet was not recovered, cannot demolish the prosecution case. We are fortified with a judgment of Hon'ble Apex Court titled Prabhash Kumar Singh Vs. The State of Bihar reported as (2019) 9 SCC 262 , to take this view, wherein it was held that mere fact that non-recovery of the weapon of assault and a bullet could not demolish the prosecution case. Moreover, the offence punishable under Section 7/27 Arms Act, being an independent substantive offence, for want of cogent evidence in that behalf has been found not proved by the trial court, but that does not mean that the charge of murder, despite there being sterling and unimpeachable direct ocular evidence, cannot be proved. Therefore, this plea taken by learned senior counsel for the appellant is not tenable and is liable to be rejected. 34. Another plea of learned senior counsel for the appellant that the medial expert was not competent witness to say that the injury was caused by a bullet, is also not tenable, as it is the medical expert, who being an expert in his field can describe the injury and its possible cause. 35. Another limb of the argument of learned senior counsel for the appellant that there being no charge of criminal conspiracy or abetment when admittedly there were more than one accused at the time of commission of offence, the appellant-accused cannot be convicted in absence of such a charge. Though prosecution case is that accused was accompanied by co-accused when the appellantaccused committed the murder of the deceased but he had not entered the house where the offence was committed and it was only the appellant-accused who had committed the offence. Though prosecution case is that accused was accompanied by co-accused when the appellantaccused committed the murder of the deceased but he had not entered the house where the offence was committed and it was only the appellant-accused who had committed the offence. Moreover, one more person, who had been arrayed as accused in the case by the prosecution, had died before the appellant was produced before the court of law to face trial. Appellant was the main offender, who was charged to have committed the murder and the other accused person who was stated to have accompanied him at the time of commission of the murder, had died before framing of charge. In-fact the charge of abetment could be against the other accused and not the appellant. Therefore, there was no need to charge the appellant-accused, a main perpetrator of the crime, for the offence of abetment. This plea of the appellant is also found without any merit and substance. 36. Having regard to the afore-stated reasons, we are of the considered opinion that the trial court has rightly connected the appellantaccused with the commission of offences, of which he was charged under Section 302 RPC/307 RPC and acquitted him of other charges particularly the offence under Section 7/27 Arms Act, in view of the fact that the weapon of offence was not recovered. The trial court, after scanning and marshalling the evidence brought on record minutely and apt appreciation, has passed a very reasoned judgment and the appellant-accused has failed to point out anything that could be fatal to the prosecution case. In our opinion the impugned JUDGMENT do not call for any interference while exercising appellate jurisdiction. 37. For the discussion made hereinabove and foregoing reasons, the appeal on hand is found without any merit and substance, and is liable to be rejected. Accordingly, appeal is dismissed along-with connection application(s), if any. Impugned JUDGMENT passed by the trial court is upheld. Crl Ref(L) No. 04/2022 38. For the reasons assigned for disposal of the appeal, the Reference made by the trial court is accepted and the punishment of life imprisonment awarded to the appellant-convict under Section 302 RPC, is confirmed. 39. Reference is, answered, accordingly. 40. Trial court record along-with a copy of this judgment be sent down, for follow up, in execution of sentence.