State Of J & K vs Wasim Ahmad @ Abu Mohamad & Anr.
2012 Latest Caselaw 3576 Del

4
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

 +      CRL.L.P. 153/2012, Crl.M.A.Nos.3503 & 3505/2012

%                                     Date of decision: 29th May, 2012

       STATE OF J & K                    ..... Petitioner
                           Through : Mr. Sunil Fernandes and
                                     Mr. Deepak Pathak, Advs.

                      versus

       WASIM AHMAD @ ABU MOHAMAD & ANR....Respondents
                   Through : Mr. N.D. Pancholi, Adv.

        CORAM:
        HON'BLE MS. JUSTICE GITA MITTAL
        HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

CRL.L.P. 153/2012

1. This petition has been filed by the State of Jammu and

Kashmir under Section 378(4) read with Section 482 of the

Code of Criminal Procedure, 1973 seeking leave to petition

against the judgment dated 10th August, 2011 passed by Ms.

Kaveri Baweja, Additional Sessions Judge - FTC (Central) in

Sessions Case No.42/2009.

2. The case arises out of an alleged incident of carnage on

the intervening night of 20th/21st March, 2000 at

Chatisinghpora in the State of Jammu and Kashmir. It was

alleged that police had recorded DD report no.20 of PP Mattan

on receipt of a telephonic call that about 8:00 pm on the night

intervening 20th/21st March, 2000 some persons of Sikh

community had been gathered and were indiscriminately fired

upon with the intention to kill with illegal weapons. While

some of the persons got killed on the spot and others were

reported to be injured. The gunmen had fled away from the

spot after committing such act. It was further reported that

while fleeing the assailants set ablaze the building of

Government Middle School, Chatisinghpora.

3. The record of the trial court notices that even during the

investigation, no person came forward to identify the persons

who had committed offence and such offenders could not be

apprehended.

4. It appears that Mohd. Suhail Malik and Wasim Ahmed, the

respondents before this court, were arrested by the police

station Shergadi in the State of Jammu and Kashmir in

connection with the case registered as FIR No.104/2000

whereupon they had disclosed their involvement also in the

incident at Chatisinghpora on the night intervening 20th/21st

March, 2000. These two persons were arrested as accused in

the present case as a result and on 2nd September, 2000, their

disclosure statements were recorded. As per prosecution, the

respondents had disclosed that they had destroyed the

weapons of offence by throwing them in the river Lidder.

5. The investigating agency recorded the statement of Ulfat

Jan and Bilal Ahmed who had stated about their involvement in

the incident at Chatisinghpora.

6. The efforts made by the investigating agencies to recover

the weapons of offence from the river Lidder were

unsuccessful.

7. The chargesheet against the respondents was presented

on the completion of the investigation before the concerned

court in the State of Jammu and Kashmir.

8. The accused respondents were charged with commission

of offence punishable under Section 2/3 Egress and Ingress,

Movement Control Order; Section 120B of the Ranbir Penal

Code read with Section 302, 307, 436, 201 and 427 of the

Ranbir Penal Code and Section 7/27 of the Arms Act.

9. It appears that while the trial was underway, a writ

petition being W.P.(C)No.310/2005, Bhim Singh v. Union of

India was filed before the Supreme Court. An order dated 10th

November, 2008 was passed by the Supreme Court of India

transferring the case for trial and adjudication to the District

Court at Delhi.

10. In this background, evidence of six witnesses stood

completed before the concerned court in Anantnag in the State

of Jammu and Kashmir while the remaining prosecution

evidence and proceedings were conducted before the District

Court, Delhi in terms of the directions of the Supreme Court of

India.

11. The matter was listed on 10th August, 2011 before the

learned Trial Judge for the purpose of recording the statement

of the accused persons under Section 313 of the Cr.P.C. which

requires the court to put the entire incriminating evidence

which has been brought on record to the accused persons

giving them an opportunity to explain the same.

12. On a consideration of the matter, the learned Trial Judge

found that the prosecution witnesses had not been able to

support the case placed before the court. No incriminating

evidence has been brought on record against the accused

persons/respondents.

13. In this background, the learned trial court considered the

evidence brought on record and recorded the judgment dated

10th August, 2011 holding that no incriminating evidence was

brought on record against the accused persons and

consequently recording of their statement under Section 313

of the Code of Criminal Procedure was required to be

dispensed with. The accused persons were thereafter

consequently acquitted and a direction was issued that they

may be released from the custody, if they are not required in

any other case. This judgment has been assailed by the State

of Jammu and Kashmir before this court.

14. Mr. Sunil Fernandes, learned Standing Counsel for the

State of Jammu and Kashmir has urged that the State had

proved the case against the accused persons and there was no

occasion dispensing with their recording of statement under

Section 313 of the Cr.P.C. It is urged that in fact the

prosecution had brought ample evidence in support of the case

for conviction of offence with which the accused persons have

been charged.

15. We have heard learned counsel appearing in the matter

and have carefully scrutinized the record. We may briefly

notice the evidence which was led by the prosecution in

support of the charge against the respondents.

16. The prosecution has examined Sardar Krishan Singh as

PW-1 on the 10th of October, 2006. This witness has stated

that he had heard the sound of gunfire at about 1715 hrs while

he was going to sleep after taking his meals. He has given

hearsay evidence of a cousin brother who had told the witness

that some people had gathered outside his house and that the

terrorists wearing army uniforms had killed some persons near

gurudwara. This witness proved the seizure memo of the dead

body, Ex.PWK-5/6. This narration would show that the witness

gives no testimony of either the occurrence or the persons

involved therein. He has certainly not given any deposition

against the respondents before the court.

17. The other public witness by the prosecution was Rauf

Ahmed Sufi as PW-2 who gave his evidence on 28th March,

2007. This witness testified that he was a driver of the bus

bearing No.JKC-5698 in which his brother Reish Ahmed Sufi

was working as a conductor which had been driven by him

from Anantnag towards Chatisinghpora. All passengers had

got down from the bus at Chatisinghpora and the bus was

parked in the village for the night. This witness also deposes

about hearing gunfire outside the bus in the night without

giving any evidence about the incident or about the identity of

the gunmen.

18. The prosecution also examined Reish Ahmed Sufi as

PW-7 (brother of PW-2) who was working as a conductor on the

said bus. His testimony was similar to that of PW-2. He stated

that he could not see the persons who were firing due to

darkness. The witness categorically testified that he could not

even state as to the number of persons who were engaged in

the firing. The witness was cross-examined by the Special

Public Prosecutor of the State of Jammu and Kashmir

whereupon other than vaguely mentioning that out of those

persons (the assailants) some persons had long beard whereas

others had small beard, he said nothing more. There is

nothing in the testimony which could enable the court to

identify the accused persons or to pinpoint the involvement of

the respondents before this court as the persons involved in

the incident.

19. The prosecution has examined Dr. Reyaz Ahmed as PW-8

(wrongly typed as PW-11) who proved the MLC of the deceased

persons as Ex.PW7/2 to Ex.PW7/36. PW-9, Gurmukh Singh was

also a public witness examined by the prosecution. However,

he has also stated that he was not in a position to identify the

accused persons. In fact, Gurmukh Singh had stated that he

went to the place of occurrence after the firing. PW-10, Nanak

Singh was one of those who were injured in the incident. In his

testimony, he states that he became unconscious after the

incident so he did not see the assailants. He therefore,

deposed that he could not say as to whether the respondents

were part of the group which was involved in the firing.

20. It appears that the prosecution had examined PW-11,

Karamjit Singh for the reason that he was an eye-witness to

the incident. He however turned hostile in the witness box.

He states that a total number of 35 persons were killed in the

incident. This witness stated that on 20th March, 2000 around

7:00 - 7:15 pm, he was returning to his house after purchasing

milk for his child when some unknown gunmen in ready

position in army uniform met him and told him to go to

gurudwara as they wanted to search the village. This person

had stated that they told him that some militants had entered

in the village and they had to conduct a search for which

reason he should go to the gurudwara. Though he had gone to

the gurudwara where already villagers were sitting in a line but

as his infant child was ill and he was tense because he has to

take the milk for him, he had requested the commanding

officer of the group to let him go. PW-11 had escaped from the

group as he was worried about his child. He further stated that

it was dark as there was no electricity. After he reached his

house, he heard the noise of firing and when he came out of

the house after half an hour, he had seen dead bodies

scattered on the ground. This witness had however, also

stated that he could not identify the persons who he had met

or who had told him to go to the gurudwara in the evening. He

was cross-examined as hostile witness, he had denied that the

accused persons in the court (respondents before this court)

were also amongst the persons who had met him on that day.

21. The prosecution examined other official witnesses in

support of the investigation which was undertaken which

included recovery of empty shells from the spot; recording of

the statement, etc.

22. PW-12, S.I. Mohd. Ishaq had proved the recording of DD

No.20A by the police station, Anantnag resulting in

commencement of investigation.

23. Two public witnesses, namely, Ulfat Jan and Bilal Ahmed

could not be traced by the prosecution during trial and brought

into the witness box despite best efforts. SSP, Anantnag made

a report to the court that these PWs were not traceable.

Subsequently, an application filed by the prosecution under

Section 311 of the Cr.P.C. for recalling these witnesses were

withdrawn by the prosecution and so dismissed vide an order

recorded on 12th August, 2011.

24. It is therefore, clearly evident that there was no legal

evidence at all, placed on record to support the case of the

prosecution or to bring home the charges levelled against the

accused respondents. No witness has identified them as

persons involved in the incident. There was certainly no

incriminating material against the respondents before the

learned Trial Judge who had no option at all but to dispense

with the recording of the statement under Section 313 of the

Cr.P.C. In the above background, there was no evidence

against the respondents before the learned Trial Judge and the

learned Trial Judge had rightly directed their release from

custody in case they were not required in any other case.

25. Mr. Fernandes, learned Standing Counsel for the State of

Jammu and Kashmir has not been able to point out any

evidence before us from the record which has been produced

before us as well to challenge the findings returned by the

learned Trial Judge. The present petition in this background is

hopelessly misconceived and deserves to be rejected.

We accordingly dismiss the present petition and direct

the respondents to be released from the custody if they are

not required in any other case.

Learned counsel for the respondents submits that the

respondents are the Pakistani nationals. In this background,

the petitioner shall proceed in the matter in accordance with

law and take all steps for their deportation which may be

required by law.

Crl.M.A.No.3503/2012 and Crl.M.A.No.3505/2012

We have heard the state on the merits of the petition and

have dismissed the same. In this background, no orders are

required to be passed in these applications.

GITA MITTAL, J

J.R. MIDHA, J MAY 29, 2012 mk