Jammu & Kashmir High Court
State Of J&K vs Mohd. Taj on 24 November, 2021
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 24.11.2021
CRAA No. 81/2013
State of J&K .....Appellant..
Through :- Mr. Adarsh Bhagat, GA.
v/s
Mohd. Taj ......Respondent..
Through :- Mr. Navneet Dubey, Advocate.
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :
JUDGMENT
Per Gupta, J.
1. The appellant-State has filed the appeal against judgment dated
11.12.2012, passed by the court of learned Sessions Judge, Poonch,
whereby the respondent has been acquitted of the charges framed
under Sections 302/449 RPC read with Sections 7/25/26/27 Indian
Arms Act on the grounds: that the judgment is against law and facts
of the case; that the trial court has mis-appreciated the prosecution
evidence and misconstrued the law attracted to the facts of the case.
The appellant seeks reversal of the impugned judgment and
consequently conviction of the respondent.
2. The respondent has appeared in the appeal and is represented
through counsel.
3. Before proceeding further in the appeal, it is profitable to provide the
brief facts of the prosecution case projected before the trial court.
4. The Police Station, Surankote, received an information that Mushtaq
Ahmed SPO was deputed at village Khaitan Draba along with two
other SPOs. Mushtaq Ahmed along with two other SPOs was
present in his house at Khaitan Draba and at about 12.30 AM some
militants including Mohd. Taj entered his house. Mohd. Taj is the
LET commander of the said organization and was accompanied by
5/6 militants, armed with heavy arms and ammunition, started
indiscriminate firing and during the course of the same one bullet hit
the head of SPO Mushtaq Ahmed who died on the spot whereas the
other two SPOs ran away from the spot in order to save their lives.
FIR No. 84/2004 was registered under Sections 302/120-B/121/122
RPC read with Sections 7/25/26/27 Indian Arms Act. The
investigation followed in the case and Mohd. Taj was arrested during
the course of investigation. The other militants could not be traced.
The challan came to be presented on the completion of the
investigations for the aforesaid offences against the accused Mohd.
Taj and initially proceedings under Section 512 Cr.P.C were initiated
against them. The trial court framed charges against the accused
under Sections 302/449 RPC read with Sections 7/25/26/27 Arms
Act. The accused denied the charges and claimed trial. The
prosecution examined 14 witnesses in support of its case. The
resume of the witnesses is as under:
5. PW-3 Riaz Ahmed has stated that he, Latief and the deceased were
posted as SPO in village Salian. On 6th June, 2004 at about 9.30 PM,
5/7 militants came and one of them entered the house and
indiscriminately started firing as a result a bullet hit the victim
Mushtaq Ahmed who died on spot whereas the witness and the SPO
Mohd. Latief were able to escape from the spot. The accused Taj had
fired the bullets and is present in the court. The witness has also
deposed that he had gone to participate in the marriage ceremony of
SPO Mushtaq but the same is not mentioned in the statement under
Section 161 Cr.P.C. He and Latief were present in the house of the
deceased and were also patrolling the houses of Mohd. Shafi, Hassan
Din, Iqbal Hussain and Mohd. Sharief and these persons were not
present in the marriage function. Militants had started indiscriminate
firing outside the house and he came to know in the morning that the
victim had received bullet injury and had died. Only one militant had
made indiscriminate firing. He was in the village when he came to
know about the death of the victim though the information had been
received regarding the death of Mushtaq before he got knowledge of
the same. It is wrongly recorded in the statement under Section 161
Cr.P.C that the militants made indiscriminate firing inside the house.
His statement was recorded after 10 days of the occurrence. His
statement was not recorded on the day of occurrence. No one
informed him that the militant who had entered the house was Taj
Phalwan. He did not inform the police when he visited the police
station as who had carried firing during the course of occurrence but
revealed the same when his statement was recorded by the police.
He and PW-Latief were not possessed of guns at the time of
occurrence nor during the day time when they were patrolling the
area nor were they in uniform. He did not record in the statement
under Section 161 Cr.P.C that four militants had entered the house of
Mushtaq Ahmed and the mention of the same has been got wrongly
recorded through him by the police. He had only seen the
photograph of the accused before he recognized him in the Police
Station. 100/150 men and women were present in the marriage
ceremony.
6. PW-4 Mohd. Latief has deposed that on 6th of June, 2004 he had
visited the house of Mushtaq Ahmed, whose marriage was being
solemnized. Some unknown persons killed the deceased after the
doli came to the house of the deceased. He ran away from the spot.
The witness has categorically stated that he could not identify the
militant who was firing as there was complete darkness. He has
further deposed that due to firing the light was defused. He did not
record the name of any person in the statement recorded before the
police and in case the name of the accused has been mentioned then
the same has been wrongly recorded in the statement.
7. PW-5 Nazir Hussain is father of the deceased Mushtaq Ahmed. As
per the witness the barat of his son had returned at about 7.30 PM
from the village and at about 9.30 the militants cracked down his
house and the accused Mohd. Taj was also one of them and had
enquired about deceased Mushtaq and when the accused was
informed that his son is not there the militants kicked him and
started the search of the deceased in the light of torches and the
deceased was found by them and taken to another room where his
son was asked as how many persons have been killed by him
belonging to the organization of the accused to which the deceased
replied that he had not killed anybody. The militants also stated that
the deceased had killed four persons and despite sending a message
the victim had not left the job. Latief and Riaz SPOs were also
present in the marriage ceremony. The wife of the witness pleaded
before the militants to spare the life of her son but the accused
Mohd. Taj fired a bullet upon the deceased who died on the spot and
the militants ran away. The people present in the house also ran
away from the spot. The witness has then deposed of the
investigation carried by the police on spot. In cross-examination the
witness has deposed that he visited the Police Station after nine days
of the occurrence and filed the application upon which the police
registered a case. The witness has further stated that the persons who
killed the deceased were not wearing masks on their faces and had
revealed this fact to the police. The militants fired five/six bullets but
no other person was injured and the bullets had hit the walls. The
police recorded his statement when the police visited the spot. He
had mentioned in the statement under Section 161 Cr.P.C that the
militants had kicked the deceased and the girls (daughters) had lifted
him but the same is not mentioned in the statement. He had seen the
incident from the other room when the deceased was fired upon.
Two chimneys were lighted in each of the two rooms. He only knew
the accused and no other militant. He had seen the accused only once
prior to the occurrence in the forest. He had told the police that
accused Taj had killed the deceased with a bullet but there is no
mention of the same in the statement under Section 161 Cr.P.C.
PWs-Riaz Ahmed and Latief along with others present had run away
from the spot after the firing took place. He was also informed by
the father of the accused that his son had committed the crime. He
was informed by people about the name of the accused on the next
day of occurrence.
8. PW-6 Khurshid Begum has stated that the marriage of her son was
solemnized on 24th of Jeth. SPOs Mohd. Riaz and Latief also
accompanied the deceased in the barat. Two militants, one of them
was accused Taj whereas the other could not be identified and had
come on spot when some of the persons had already taken the meals
and some were in the process of taking the meals. She asked the
accused Taj to spare the life of the deceased who pushed her son
back and fired a bullet upon the deceased and thereafter ran away.
All the persons present there ran away and she and her husband
remained alone in the house. Her statement was recorded after
ten/twenty days of the occurrence. In cross-examination she has
deposed that police came in the morning but did not record her
statement as she was unconscious. There is no mention in her
statement under Section 161 Cr.P.C of two militants firing and her
folding of hands before the militants and that the militants had fired
and the people also ran away from the spot. Only „Sirf Minnat
Samajet‟ is mentioned in the statement. It is wrongly stated in the
statement recorded before the police that at about 9 O‟clock four
militants had entered the house. There was no light in the house and
only lamps were burning and as soon as the militants started firing
the light went off. The men were sitting in one of the rooms and the
females in the other room and the victim was serving the females
and from there he had gone to the room where the men were sitting.
She was sitting in the room where the ladies were present. Firing
took place in both the rooms. She does not know how many bullets
were fired during the occurrence. She had recognized one of the two
militants. She had not seen the four militants but only two who had
come inside the house. She cannot say how many armed men were
present outside the house as there was darkness. She had no
knowledge as to how many militants were outside the house due to
the darkness in the night. The militants were wearing masks on their
faces.
9. PW-7 Lal Hussain has deposed that the deceased was his nephew.
He came back to his house after taking the meal and thereafter he
heard a noise of fire and hue and cry whereupon he visited the house
of Nazir who is his brother and saw the dead body of the Mushtaq.
He was informed that the militants had killed the deceased. Nazir did
not reveal him the name of any militant.
10. PW-8 Mohd. Iqbal is not eye witness to the occurrence and had
visited the spot on the morning after he was informed of the incident.
He is brother of Nazir who did not disclose the name of any militant
who had killed Mushtaq.
11. PW-9 Sudershan Kumar visited the place after the occurrence took
place and was informed by the father of the deceased that accused
Taj Phalwan had killed his son. He was not invited in the function.
12. PW-10 Zaffar Ali visited the spot on the next morning of the
occurrence. He was disclosed that four militants had visited the place
and killed the deceased in firing. The people could not identify the
accused persons. The parents of the deceased had not disclosed the
name of any militant in his presence when the police came on spot
and enquired the parents of the occurrence.
13. PW-11 Mohd. Sharief is stated to be the witness to the seizure
memos of dead body, clothes, blood stained clay etc. Though in
cross-examination he has denied his signatures on EXPW-3 and
EXPW-4.
14. PW-12 Nek Mohd. was declared hostile as he denied the knowledge
of the person who had killed the deceased. The prosecution could
not elicit any credible information during cross-examination of the
witness.
15. PW-13 Dr. Mohd. Hussain has conducted post-mortem of the
deceased and issued certificate EXPW-MH31.
16. PW-14 Muzaffar Ahmad Khan has investigated the FIR in question
and has deposed of the proceedings conducted by him during the
course of investigation. As per the witness, he had recorded the
statement of Mohd. Sharief on the spot and of the rest of the
witnesses in the Police Station. On spot people were referring to the
presence of accused with the militants and this fact is also mentioned
in the case diary. There is no mention in the case diary as to who had
identified the accused. No other witness was produced by the
prosecution.
17. The statement of the accused was recorded under Section 342 Cr.P.C
and incriminating material was explained to the accused who denied
the same. The accused has produced Mohd. Ikhlaq and Haji Kabir
Hussain as defense witnesses.
18. DW-Mohd. Ikhlaq has stated that he is ex-naib sarpanch of village
Khaitan Draba and resides half kilometer of the house of Nazir
Hussain. He had participated in the marriage function in the evening
and thereafter returned from the house. On hearing the sound of a
fire he and Haji Kabir went to the house of Nazir Hussain where he
was told by Nazir Hussain and his wife that deceased along with his
two friends was taking meal inside the room and ran towards the
room on hearing the sound of the fire where they saw the dead body
of Mushtaq but could not identify any one due to darkness. The
witness has denied that he knows the accused Taj Phalwan or had
seen him before the occurrence.
19. DW-Haji Kabir Hussain has also deposed on the lines of DW-Mohd.
Ikhlaq.
20. Mr. Adarsh Bhagat, learned Government Advocate appearing on
behalf of the State has argued that the learned trial court has not
appreciated the prosecution evidence in its right perspective and has
omitted the relevant material brought on record by the prosecution
while passing the judgment. The evidence on record has clearly
established the complexity of the respondent in the occurrence. The
case against the respondent was proved beyond shadow of doubt yet
the trial court has faulted in acquitting the accused.
21. Mr. Navneet Dubey, learned Advocate appearing on behalf of the
respondent, has supported the judgment of the trial court. It is urged
that the prosecution failed to elicit positive evidence during the
course of trial from the prosecution witnesses against the respondent
and that is why the trial court has rightly concluded that the
prosecution failed to establish the guilt of the accused beyond
shadow of doubt.
22. The incidence of 6th June, 2004 which occurred in the house of the
victim-Mushtaq Ahmed, SPO in the police department, resulted into
the killing of said Mushtaq Ahmed by some militants and allegedly
included the respondent herein also. The victim was killed due to the
firing unleashed by the militants. The prosecution is required to
prove its case beyond shadow of doubt before it can earn conviction
for the accused. The burden to prove the case against the accused
squarely rests upon the prosecution and in the case in hand the trial
court has held that the prosecution failed to discharge its burden.
This Court is called upon to reverse the judgment passed by the trial
court on the ground that the same is grossly erroneous and perverse.
23. From the challan it is made out that the prosecution has cited number
of eye witnesses to prove its case. The FIR mentions the names of
PWS-Riaz Ahmed and Mohd. Latief who were present along with
the victim in the house of the victim when the alleged occurrence
took place. The statements of both cited as eye witnesses stand
recorded before the trial court. Obviously, their statements assume
utmost importance in the present case. Unfortunately the witnesses
who belong to police department and were fellow police personnel
of the victim failed to depose favorably for the prosecution during
trial. PW-3 Riaz Ahmed has definitely recorded his presence along
with PW-4 Mohd. Latief in the house of the victim and also states
indiscriminate firing by 5/7 militants which resulted into death of the
victim on spot. The accused fired the bullets is also stated in the
deposition. He and PW-Mohd. Latief were, however, able to escape
from the spot during the course of firing. The witness then belies his
own statement as during cross-examination he specifically states that
militants had started indiscriminate firing outside the house and he
came to know in the morning that the victim had received injury and
had died. As per the witness only one militant had participated in
indiscriminate firing. He even goes to the extent of stating that he
was not even informed that the militant who had entered the house
was Taj Pahalwan, accused in the case. He resiled from the
statement given to the police wherein the name of the accused had
been mentioned. PW-Mohd. Latief, SPO in the police department,
has deposed that some unknown persons had killed the deceased and
could not identify the militant who was firing as there was complete
darkness. He also backs out from the statement given before the
police as far as mention of the accused in the said statement is
concerned. Surprisingly, the police personnel who should have
supported the prosecution case failed to depose against the accused
during the course of trial. It is also surprising to note that these two
witnesses from the police department have been examined by the
investigating officer on 16th of June, 2004 meaning thereby that their
statements were recorded after ten days of the alleged occurrence.
What prevented the investigating officer to record the statements of
their own policeman, reportedly present at the time of occurrence,
after ten days is not made known to the court.
24. The counsel for the appellant has argued that the statements of the
parents of the victim are without blemish and there was no reason to
believe that they would falsely name the accused in the crime. The
trial court has grossly erred in disbelieving the version of these
witnesses. The statements recorded of these two witnesses are
indeed relevant and are required to be analyzed.
25. PW-5 Nazir Hussain and PW-6 Khurshid Begum are parents of the
deceased. PW-5 Nazir Hussain has deposed of the accused having
fired the bullet upon his son and that he had recognized the accused
whom he had seen once before the occurrence and that two
chimneys were burning in each of the rooms. The witness has stated
that he had seen the occurrence from the other room. PW-6 Khurshid
Begum has also deposed that her son was killed by the accused as
the accused had fired the bullet upon her son. The witness has also
mentioned that the when the militants started firing the lights went
off and only lamps were burning. The witness also states that the
firing took place in both the rooms and further that the victim had
moved from the room where the ladies were sitting to the other room
and that the witness was in the room where the females were sitting.
It means that the firing in which the victim was killed, in all
probability, did not occur in the room where the females were sitting
but in the other room and the mother of the victim also did not
witness the firing upon the victim as she has not stated that she
followed the victim when he shifted himself from one room to
another. The mother of the victim having also witnessed the killing
of her son is doubtful in the circumstances of the case. PW-4 Mohd.
Latief even states that there was complete darkness when the
militants started firing and the lights also went off at that time.
Another important contradiction between the statements of the
parents of the victim is regarding the wearing of the masks by the
militants. The father has deposed that the militants were not wearing
the masks, on the other hand, the mother has on one point deposed
that one of the militants entering the house had mask and in other
place she has deposed that the militants were wearing the masks.
The parents of the deceased recognizing the accused during the
course of the occurrence is somewhat doubtful when the only source
of some light was the flame from chimneys in the rooms and the two
SPOs who are eye witnesses in the case have failed to make mention
of the participation of the accused in the occurrence. The father
vaguely states that he had seen the accused once prior to the
occurrence and the mother of the victim also not knowing the
accused prior to the occurrence and seeing him only after more than
three years of occurrence in the court only makes it improbable for
the court to believe the version of the parents recognizing the victim
during the course of occurrence.
26. The counsel for the respondent has also invited the attention of the
court to the fact that in the site plan exhibited as EXPW-14MA
prepared of the alleged place of occurrence the positioning of the
witnesses from where they witnessed the actual occurrence is not
mentioned nor is apparent from the site plan that the person sitting in
one room could witness the occurrence taking place in the other
room. The other side has contended that this aspect of the matter is
not that relevant when the occurrence is vividly stated by the
witnesses. In any case, the site plan clearly mentions the place of
occurrence. The site plan EXPW-14MA except for depicting the
room where the alleged killing took place is otherwise absolutely
sketchy and fails to show entry point of the house or the place from
where the witnesses had seen the occurrence. The site plan and more
particularly the positioning of the eyewitnesses assume importance
in the present case as the court has held above that it is not made out
from the statements of the parents of the victim if they had infact
seen the accused firing upon the victim.
27. The prosecution has also cited five other witnesses as eye witnesses
in the challan and their statements are also recorded before the trial
court. PW-7 Lal Hussain, PW-8 Mohd. Iqbal, PW-9 Sudershan Lal,
PW-10 Muzaffar Ali and PW-12 Nek Mohd. are cited as eye
witnesses in the challan. None of the said witnesses disclosed their
presence at the time of occurrence but recorded their visit to the
house of the victim only after the occurrence had taken place. Except
for PW-Sudershan Lal none of the aforesaid four witnesses even
disclosed that they were informed by the parents of the victim that
the accused was one of the persons who had participated in the crime
or fired the bullets upon the victim. PW-Nek Mohd. recorded before
the police about the participation of some militants in the crime
though he had not mentioned the name of accused in the said
statement. The witness had been declared hostile in the court while
recording the statement and on being examined by the prosecution
no credible information regarding the occurrence could be elicited
from the witness. He has even denied his signatures on the seizure
memo pertaining to gun. It appears that the prosecution had in a
casual manner cited these witnesses as eye witnesses as the perusal
of the statements recorded before the police of these witnesses do
not reveal that they were witnesses to the occurrence except PW-
Nek Mohd. who too, as stated above, did not support the prosecution
version in the court. In any case the statements of these witnesses do
not in any manner advance the prosecution case.
28. As far as the statement of PW-13 Dr. Mohd. Mushtaq is concerned,
he has of course given his opinion regarding the death of the victim
and has stated that the deceased died due to gunshot injury and the
certificate EXPW-MH 13 also proves the same. The statement of the
doctor by itself cannot prove the prosecution case unless the other
evidence brought on record support the prosecution case which is
lacking in the present case. Mere death of the victim cannot point
finger towards the accused unless the prosecution is able to
otherwise prove his involvement in the case beyond shadow of
doubt. The other evidence in the case is formal in nature as it is with
regard to the seizure memos.
29. The defense has produced two witnesses, namely, Mohd. Ikhlaq and
Haji Kabir Hussain. The perusal of their statements only reveals that
witnesses visited the place only after the occurrence had taken place.
They also state that the identity of the accused was not revealed by
the parents of the deceased when they visited their house. The
statement of the defense witnesses is not of much relevance in the
present case as they are not witnesses to the occurrence as they
admit in their statements that they had visited the house of deceased
after the occurrence had taken place.
30. The perusal of the judgment of the trial court when analyzed in the
light of the evidence brought on record during the course of trial is
not found to be perverse which may call for interference by this
Court in the appeal. It is trite proposition of law that the acquittal
recorded by the trial court should not be normally upset and reversed
unless the appellate court finds the judgment mis-appreciating the
evidence grossly. Where the appellate court finds that the view taken
by the trial court is possible one, the judgment of the trial court need
not be disturbed.
31. In Rajendra and others v. State of Karnataka, Criminal Appeal No.
1438 of 2011 decided on 26.03.2021, the Hon‟ble Apex Court has
held that "further it is also settled proposition that unless the view
taken by the trial court is not a possible view, normally the High
Court should not interfere with the acquittal recorded by the trial
court. There cannot be any straight-jacket formula to apply readily
for the cases in appeals arising out of acquittal recorded by the trial
court. Whether the view taken by the trial court is a possible view or
not; whether the findings recorded by the trial court are in
conformity with the evidence or not; are the matters which depend
upon facts and circumstances of each case and the evidence on
record...."
32. The prosecution has to stand on its own legs in a criminal trial and
has to discharge the burden of proving the case against the accused
beyond shadow of doubt and it cannot rely upon the evidence
produced by the defense. In the present case the statement of the
defense witnesses as stated above is not of much relevance as they
are not witness to the occurrence and only record that the parents of
the victim did not disclose the name of the accused. This court is of
the view that the appellant has not been able to make out a case
against the respondent beyond shadow of doubt and thus the
judgment of the trial court does not require interference.
33. In view of the discussion made above, this Court finds no merit in
the appeal which is, accordingly, dismissed.
34. The record of the trial court be sent back.
(Puneet Gupta) (Dhiraj Singh Thakur)
Judge Judge
Jammu:
24.11.2021
Pawan Chopra
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
PAWAN CHOPRA
2021.11.24 16:04
I attest to the accuracy and
integrity of this document
