State vs Abdul Hamid And Another
2021 Latest Caselaw 263 j&K

        IN THE HIGH COURT OF JAMMU AND KASHMIR
                       AT JAMMU


                                           CRAA 52/2007

                                           Reserved on: 24.02.2021
                                           Pronounced on: 09.03.2021


State                                        ... Appellant(s)
                           Through: -Mr.Adarsh Bhagat, G.A.

                    Vs.

Abdul Hamid and another

                                                Respondent(s)
                           Through: - Mr. K.M.Bhatti Advocate
CORAM:        HON'BLE MR. JUSTICE SANJEEV KUMAR JUDGE
              HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE



                             JUDGMENT

Sanjeev Kumar-J 1 This Criminal Acquittal Appeal by the State is directed against

the judgment dated 31.05.2005 passed by the learned Sessions Judge,

Poonch (hereinafter referred to as the 'trial Court') in file

No. 51/Sessions titled 'State vs Abdul Hameed' whereby the

respondent-accused has been acquitted of the charges under Sections

302/120-B/364/121/392/123/456/109 RPC and 4/27, 7/25 Arms Act.

2 Before we advert to the grounds of challenge urged by the

appellant in support of the appeal, it is necessary to notice brief

resume of prosecution case.

3 On the basis of a written report lodged by the Commandant, 1st

Bn. Draba, Poonch on 10.10.2000 alleging therein that three security

personnel, namely Abdul Majid, Ghulam Mohd Shah and Abdul 2 CRAA 52/2007

Rashid Dar, who were on guard duty at the residence of one Babu

Khan, Block President, National Conference at Drogian, had been

kidnapped by some unknown militants on the intervening night of

9/10th October, 2000 along with their arms and ammunitions, an FIR

was registered in the Police Station Surankote. On the next day i.e

11.10.2000, the dead bodies of all the three security personnel,

kidnapped from the house of Babu Khan, were found near Chamrare

Forest. The dead bodies were taken into possession by the police and

their post mortem got conducted.

4 During the course of investigation, it was found that on 9th

October, 2000, at 10 pm, the accused Abdul Hamid accompanying

the militants of LeT under the leadership of Mohd Azam, a local

militant, knocked at the door of the house of Babu Khan. On enquiry

by the security personnel on duty, the accused disclosed his identity

as Abdul Hamid and informed the security personnel that he had to

deliver an important message. The door was opened by the security

personnel and the accused along with other militants intruded in the

house of Babu Khan. They kidnapped the aforesaid security

personnel and also took away 12 bore gun and cash of Rs.150,000/-

from the house of Babu Khan.

5 Upon completion of the investigation, the police found the

allegations substantiated and presented the challan in the Court of

Judicial Magistrate 1st Class (Sub-Judge), Surankote on 6th October,

2001 against the accused Abdul Hamid while Mohd Azam was 3 CRAA 52/2007

proceeded under Section 512 CrPC. The learned Magistrate on the

same day committed the case to trial Court.

6 With a view to prove the charges, the prosecution examined

PWs Nisar Ahmed, Mohd Bashir, Mohd Din, Babu Khan, Parvez

Ahmed, Kulwant Singh, Fazal Ahmed, Bahsir Ahmed Dar, Khaliq

Hussain and Dr Mumtaz Hussain Shah. The incriminating

circumstances, that had emerged in the prosecution evidence, were

put to the accused and his statement under Section 342 Cr.P.C was

recorded. The accused Abdul Hamid denied all the charges and took

the plea of false implication in the case. In his defence, he examined

two witnesses, namely Feroz Khan and Lal Khan.

7 The trial Court, after hearing the prosecution and the defence

and evaluating the evidence that had come on record, came to the

conclusion that the prosecution had failed to prove the charge against

the respondent/accused Abdul Hamid beyond all reasonable shadow

of doubt and, as a result, acquitted him giving him the benefit of

doubt. Feeling aggrieved, the State is in appeal against the impugned

judgment of acquittal passed in favour of respondent/accused No.1.

The state in its appeal has also arrayed the accused Mohd Azam

against whom the trial Court had proceeded under Section 512

Cr.PC, though he is yet to face the trial and get the verdict on the

charge levelled against him. Respondent No.2 Mohd Azam,

however, is stated to have died during the pendency of this appeal

and, therefore, his being in the array of respondents in this appeal is 4 CRAA 52/2007

of no significance. The impugned judgment has been assailed by the

State, inter alia, on the following grounds:

(i) that the learned trial Court has misdirected itself in appreciating the evidence on record and has, without any reason or justification, given the benefit of doubt to respondent No.1 when there was sufficient evidence to connect him with the offence committed by him;

(ii) that the learned trial Court has not given weightage to the statements of PW Babu Khan and Parvez Ahmed as their statements deserved; and,

(iii) that the statements of PW Babu Khan and Parvez Ahmed, who had witnessed the occurrence, were categoric and consistent and, therefore, there was no reason or justification to ignore their versions and let off respondent No.1 of the commission of heinous crime of killing three security personnel;

8 Mr. Adarsh Bhagat, learned Government Advocate, while

reiterating the grounds pleaded in the memo of appeal took us

through the statements of prosecution witnesses, particularly the

statements of Babu Khan and Parvez Ahmed to hammer his point

that there was consistency in the statements of both the witnesses

who had seen the occurrence from close range. He, therefore,

submits that there was no reason or justification for the trial Court to

ignore their testimony and give benefit of doubt to respondent/

accused Abdul Hamid. Similar plea by the prosecution taken before

the trial Court was considered and rejected on the reasoning that the

statements of aforesaid two witnesses, who claimed to have seen the

occurrence, were full of contradictions and, therefore, not reliable.

                                          5     CRAA 52/2007


9     Since learned Government Advocate, appearing for the State,

has laid great emphasis on the testimony of PWs Babu Khan and

Parvez Ahmed, as such, we deem it appropriate to give brief resume

of their statements recorded before the trial Court.

"PW Babu Khan has stated that he was Block President of National Conference. Security personnel, namely Abdul Hamid, Ghulam Mohd Shah and Abdul Rashid were deployed at his residence. On the intervening night of 9/10 October, 2000 at about 10 pm, door of his house was knocked and Abdul Hamid, Head Constable enquired as to who was knocking the door. Accused Abdul Hamid disclosed his identity and stated that he had to deliver a message. Head Constable Abdul Hamid opened the door. Three militants and accused Abdul Hamid entered his house. They overpowered the security personnel and snatched the arms and ammunition from their possession. They also took away Rs.1,50,000/-.

In his cross-examination, the witness stated that his statement was recorded by the police. He never saw the accused with the militants. He witnessed the occurrence from the hole of the wall. He stated that he entered the gazeen i.e store room of grains before the militants entered the house. He was sleeping in the same room with his son where security personnel were also sleeping. He further stated that militants snatched away the gun from his wife who witnessed the whole occurrence.

PW Parvez Ahmed has stated that on 9/10th October, 2000 at 10 pm, accused knocked at the door of his house. He and his father entered the gazeen (store room of grains) through the door of Almirah. 3-4 militants along with Abdul Hamid entered his house. They snatched away the arms of security personnel. Accused person took away 12 bore gun which was hanging on the wall and handed over the same to accused Abdul Hamid. In his cross-examination, he stated that he and his father entered the gazeen when the accused knocked the door second time. They witnessed the occurrence from the door of gazeen. He denied that militants had snatched the gun from his mother. He stated that the gun was lying on the wall.

                                          6     CRAA 52/2007


10    The trial Court has pointed out that it is in the testimony of

PW Babu Khan that he knew the accused Abdul Hamid very well

and as a matter of fact, it was only after he disclosed his identity, the

door of the house was opened by the security personnel. It was on the

basis of information given by PW babu Khan to the complainant

Bashir Ahmed Dar at 6 am on the same night, the complainant

lodged a written complaint with the police indicating therein that the

security personnel deployed at the house of Babu Khan had been

kidnapped by the unknown militants. The learned trial Court has

further pointed out that PW Babu Khan, if he was aware that accused

Abdul Hamid was accompanying the militants, would have certainly

named him before the complainant and the complainant would have

accordingly informed the police. The trial Court has also expressed

surprise that with regard to such gruesome incident in which three

security personnel were killed, FIR was to be lodged by sending a

letter through messenger. The omission to name the accused Abdul

Hamid and pin point his role in the whole episode is significant and

makes the testimony of PW Babu Khan highly doubtful.

11 It is true that FIR is not always an encyclopaedia of all facts

but is the first information of the incident given to the police to set

the investigative machinery in motion. However, it is trite that where

the complainant knows the accused and yet does not name him while

lodging FIR, the subsequent arraignment of the accused in the case

becomes highly doubtful. This is exactly what has weighed heavily

with the trial Court in discarding the testimony of PW Babu Khan.

                                         7     CRAA 52/2007


12    To the similar effect is the testimony of eye witness PW

Parvez Ahmed. PW Parvez Ahmed is the son of Babu Khan who has

claimed that they have seen the occurrence through the slit of door

of the room, whereas PW Babu Khan in his testimony has stated that

he saw the occurrence from the hole of the wall. Both claimed to be

present in the gazeen i.e store room for grains when they witnessed

the occurrence. There is a contradictory version with regard to

snatching of gun lying in the house of Babu Khan by respondent

No1. While PW Babu Khan says that it was his wife who handed

over the gun to the militants, whereas it is the testimony of PW

Parvez Ahmed that it was taken from the wall of the guard room of

the house. PW Babu Ram in his testimony also testifies the presence

of PW Nissar Ahmed who has not supported the prosecution case

and has been declared hostile by the prosecution. It is also not

forthcoming as to why the wife of Babu Khan from whom the gun

was allegedly snatched by the militants was not cited as a

prosecution witness. PW Parvez Ahmed has even stated the presence

of his grandfather in the house, but his statement too has not been

recorded by the prosecution, nor has he been cited as a prosecution

witness. There are other contradictions pointed out by the trial Court

in the evidence of the prosecution which, as per the trial Court, has

put the prosecution case in the realm of doubt.

13 We have carefully gone through the impugned judgment and

the evidence recorded during the trial. We do not find any illegality

or infirmity with the conclusions arrived at by the trial Court on the 8 CRAA 52/2007

basis of evaluation of evidence on record. We, therefore, concur with

the conclusion of the trial Court that the prosecution has not been

able to prove the guilt of respondent No.1 beyond shadow of

reasonable doubt and, therefore, respondent No.1 is entitled to be

acquitted by giving him the benefit of doubt. Otherwise also, the

scope of interference with the judgment of acquittal recorded by the

trial Court is very limited. Even if the appellate Court, on analysing

the evidence on record, is of the opinion that two views are possible,

yet the appellate Court would prefer the view which goes to the

benefit of the accused. In this regard, reference can be made to a

judgment of the Hon'ble Supreme Court in the case of Sambhaji

Hindurao Deshmukh vs. State of Maharashtra, (2008) 11 SCC

186 wherein the Hon'ble Supreme Court held as under:

"The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on evidence which can dislodge the findings arrived by the trial court, which were the basis for the acquittal. The High Court has to give due importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond 9 CRAA 52/2007

reasonable doubt and consequently the accused is entitled to benefit of doubt (vide G. B. Patel vs. State of Maharashtra, 1978 (4) SCC 371: Babu v. State of U.P,- 1988 (2) SCC 21: Awadhesh v. State of M.P, 1988 (2) SCC 557: Thanedar Singh v. State of M.P, 2002 (1) SCC 487: and State of Rajasthan vs. Rajaram, 2003 (8) SCC

180. Keeping the said principles in view, we will examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High Court to interfere with the decision of the trial court".

14 In view of the circumscribed scope of interference with the

judgment of acquittal, we are not inclined to interfere with the

impugned judgment. We, accordingly, dismiss this appeal and

uphold the judgment of acquittal passed by the learned trial Court.

Registry to return back the record of trial Court.

                     (PUNEET GUPTA)            (SANJEEV KUMAR)
                             JUDGE                       JUDGE
Jammu
09.03.2021
Sanjeev

                   Whether the order is speaking: Yes
                   Whether the order is reportable: Yes