Jammu & Kashmir High Court
Tariq Mattoo vs State Of J&K Through Station House ... on 23 May, 2022
Sr.No. 1
1 Cr. Appeal No.32/2014
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Cr. Appeal No.32/2014
Cr.MA 82/2014
Pronounced on: 23.05.2022
Tariq Mattoo S/O Ghulam Nabi Mattoo R/O Village Soti Gandoh Tehsil
Bhalessa District Doda (presently in Central Jail Kot Bhalwal Jammu)
....Appellant
Through:- Sh. Sudershan Sharma Advocate.
VERSUS
1. State of J&K Through Station House Officer Police Station Gandoh Tehsil
Bhalessa District Doda;
2. Superintendent Central Jail Kot Bhalwal Jammu Tehsil & District Jammu.
....Respondents
Through:-Sh. Suneel Malhotra Govt. Advocate.
Coram: HON‟BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE
J U D G M E N T
Per-Mohan Lal-J
1. Instant Criminal Appeal is directed by the appellant against the judgment and
order dated 04-06-2014 rendered by the court of Ld. Sessions Judge
Bhaderwah in file No. 25/Sessions titled State Vs Irfan Ali Code Babloo
and Ors, whereby, appellant has been convicted and sentenced to undergo
rigorous imprisonment for life and fine of Rs. 5000 in FIR No. 57/2020 for
commission of offences u/s 302/34 RPC. Be it noted, that in addition to the
aforesaid appellant/convict, two (2) more accused persons namely, (i) Irfan
Ali Code Babloo S/O Shafat Ali Butt R/O Kilhotran Gandoh & (ii) Jan
Mohamand Code Hamza S/O Hashim Din Gujjar R/O Poura Pain Gandoh
were named in the charge sheet presented in the court of Ld. JMIC Gandoh
on 08-02-2003 for commission of offences 302/34 RPC r/w 7/27 Arms Act &
3 PSS Act, who were accordingly proceeded u/s 512 Cr.pc due to their
abscondence. However, during the pendency of trial, appellant/convict Tariq
Mattoo was apprehended in execution of General Warrants of arrest issued
against him, was tried, held guilty, convicted and sentenced accordingly.
Aggrieved of, and dissatisfied with the impugned judgment and order, the
appellant/convict has questioned its legality, propriety and correctness on the
following grounds:-
(i) that the appellant has been falsely and wrongly booked in
FIR No. 57/2020 dtd. 04-07-2020 registered by respondent
No.1 SHO P/S Gandoh Bhalessa for commission of
offences u/ss 302 RPC/4/27 Arms Act r/w 3 PSS Act for
the allegations, that appellant alongwith two more
terrorists namely, Irfan Ali Code Babloo S/O Shafqat Ali
Bautt R/o Village Kalhotra & Jan Mohamad Code Hamza
S/O Hasham Din R/O Pura Pain armed with weapons
entered the house of Sher Mohd Rather Sapranch
Panchayat Halqa Pacharat Changa brought him out of the
house whereafter the aforesaid terrorists fired several
bullets from their weapons on said Sher Mohd killing him
on spot, after recording statements of prosecution
witnesses u/s 161 Cr.pc the investigation was concluded
against the aforesaid accused for commission of offences
punishable u/ss 302 RPC/4/27 Arms Act r/w 3 PSS Act
and accordingly the chargesheet was laid before the trial
court, wherein, during trial of appellant/convict he was
found guilty for commission of offence u/s 302/34 RPC
and was sentenced to rigorous imprisonment for life and
fine of Rs. 5000 and in default of fine appellant was
directed to undergo further simple imprisonment for two
months;
(ii) that the impugned judgment and order of sentence are
against law, facts and circumstances of the case, not
sustainable in the eyes of law and are liable to be set
aside/quashed;
(iii) that the court below has not properly and correctly
appreciated the evidence on record in its right perspective,
whereas, the prosecution has failed to establish the guilt
against appellant, the court below has failed to properly
appreciate and consider the grave and material
contradictions in the evidence, thereby, has committed
glaring illegality and irregularity;
(iv) that the prosecution has failed to prove beyond reasonable
doubt offences against the appellant and has passed the
judgment and order of sentence purely on assumption,
presumptions, whims and surmises and on the basis of
evidence of interested witnesses viz; sons and brothers of
deceased;
(v) that the trial court while passing the judgment and order of
conviction and sentence has lost track of the fact that the
evidence which has been produced by the prosecution does
not connect the appellant with alleged commission of
crime, two (2) independent witnesses have turned hostile
and have not supported the prosecution case, the trial court
has passed the judgment on conjectures and surmises
without any cogent evidence against the appellant, thereby,
has drawn wrong inferences from the facts proved on
record.
2. Respondents have opposed and contested the appeal by filing objections and
contending therein, that the Ld. Trial Court after appreciating the evidence
and material on record has rightly convicted appellant Tariq Mattoo Code
Babloo for commission of offences u/ss 302/34 RPC whereby appellant has
been sentenced to rigorous imprisonment for life and fine of Rs. 5000,
appellant has been convicted after full trial, evidence has been properly
weighed and appreciated by the trial court and only then the case has been
made out against the appellant after appreciating the prosecution evidence in
its right perspective, prayer has been made for the affirmation of the
impugned judgment and dismissal of the appeal.
3. Sh. Sudershan Sharma Ld. Counsel for appellant/convict has submitted
written arguments in addition to the oral arguments advanced by him, and has
sought the acquittal of appellant/convict on the following counts:-
(i) No evidence regarding role of appellant u/s 34 RPC in crime:-
It is argued, that appellant has been acquitted for charges
framed against him u/s 7/27 Arms Act and 3 PSS Act however the
appellant has been convicted for commission of offences u/s 302 r/w
34 of RPC, the impugned judgment is silent as with whom appellant
shared common intention, prosecution witnesses who claimed to
have witnessed the occurrence have not named the appellant or have
named the appellant with casual reference showing his non-presence
on the spot of occurrence as none of the prosecution witnesses have
attributed any act of commission or omission by the appellant or the
role played by him in the occurrence and no role whatsoever has
been attributed to the appellant, for sustaining the conviction of
appellant u/s 34 IPC it is necessary that there should be finding
recorded as to the common intention of the appellant with other
accused, the Ld. Trial court has not recorded any finding as how the
appellant shared common intention and with whom, neither any
conduct nor any circumstance nor any incriminating fact has been
pointed out by the trial court which could show that appellant has
shared common intention/pre-concert or existence of any pre-
arranged plan in the murder of the deceased, appellant has been
convicted for section 34 RPC without framing the said charge
against him thereby the trial court has committed glaring illegality,
whereby, the impugned judgment is unsustainable in the eyes of law.
Reliance has been placed on (i) 1999 (8) Supreme 6 [Ramashish
Yadav & Ors--Appellants Versus State of Bihar--Respondent] &
(ii) AIR 2015 Supreme (SC) 993 [BALU @ BALA
SUBRAMANIAM & ANR--Appellants Versus State (U.T. OF
PONDICHERRY)--Respondent];
(ii) Conduct of witnesses in not saving the deceased unnatural:-
It is argued, that at the time of occurrence as per the
prosecution story, deceased Sher Mohd has raised hue and cry
calling his brother Noor Mohd to save his life, but the conduct of
witnesses especially the close relatives of deceased in not playing
any role to save the life of deceased makes the prosecution case
doubtful and un-reliable being afterthought. Reliance has placed on,
AIR 2002 Supreme Court 2807;
(iii) Medical evidence contradictory to eyewitness‟s account:-
It is argued, that the medical evidence does not support or
corroborate the eyewitnesses account, the truth and falsehood are so
inextricably mixed together that it is difficult to separate them which
amounts to reconstructing a new case of prosecution;
(iv) Defence & prosecution evidence to be treated on equal footing:-
It is argued, that appellant has examined three (3) witnesses
in defence namely DW-1 Talab Hussain, DW-2 Qutab Din & DW-3
Abdul Rashid and all of them have led evidence before the trial
court to the effect, that on hearing the hue and cry they reached on
spot in the house of deceased after the firing incident, 20/25 people
including the legal heirs/family members of deceased were present
there and all of them did not nominate the appellant/assailants in the
firing incident; it is argued, that the defence witnesses are entitled to
equal treatment and respect as that of prosecution witnesses, the
defence witnesses have totally demolished the prosecution story that
appellant is responsible for murder of the deceased, which makes the
prosecution story highly tainted and doubtful, and once doubt is
created the benefit has to be attributed to the accused.
4. Sh. Suneel Malhotra Ld. GA has supported the impugned judgment and has
sought the confirmation of the conviction and sentence imposed upon the
appellant on the following counts:-
(i) It is argued, that in the FIR it is clearly mentioned that all the three (3)
accused including appellant Tariq Mattoo have entered in the house of
deceased Sher Mohd on 04-07-2002 at 9.30pm, brought him out of the
house, where other two more unknown terrorists were present, the
terrorists fired several bullets from their weapons on Sher Mohd
killing him on spot, appellant after full trial has been rightly convicted
and sentenced to rigorous imprisonment for life;
(ii) It is argued, that PWs 2,3,4&6 namely, Ashiq Hussain, Mohd
Ramzan, Muzaffar Ahmed and Noor Mohd in their depositions before
the trial court have categorically mentioned the name of appellant in
the commission of crime which proves the complicity of the appellant
in the crime;
(iii) It is argued, that although the eyewitnesses viz; PWs 2,3,4&6 are the
close relatives of the deceased, but they are the natural witnesses to
the occurrence and no doubt can be raised upon them, as it is common
feature that murders are not committed with previous notice to the
witnesses soliciting their presence and when murder is committed in
dwelling house the inmates of the house are natural witnesses, all the
prosecution eyewitnesses although sons and brother of the deceased
are the natural witnesses who had witnessed the crime during night
hours and are therefore the best witnesses to the occurrence. To
support his arguments, Ld. Counsel has relied upon the judgment of
Hon‟ble Supreme Court reported in, AIR 2005 Supreme Court 1142;
(iv) It is argued, that even if the investigation is faulty as projected by the
defence, the perpetrators of the ghastly crime cannot be allowed to go
scoot free; as the occurrence has been proved by the ocular evidence
of eyewitness, mere fault in investigation cannot absolve the
appellant/convict from the criminal liability. To support his
arguments, Ld. Counsel has relied upon the judgment of Hon‟ble
Supreme Court reported in AIR 2003 Supreme Court 660;
(v) It is argued, that as per section 535/537 of Cr.PC (J&K) the effect of
omission to prepare charge is no ground to invalidate the sentence or
finding pronounced by the court, the argument of counsel for accused
that charge was only framed u/s 302 RPC, 7/27 Arms Act & 3 PSS
Act and not 302 RPC r/w Sec. 34 IPC and therefore, the conviction
and sentence is invalid would not come into play.
5. We have heard Sh. Sundershan Sharma Ld. Counsel for appellant and Sh.
Suneel Malhotra Ld. GA for the respondent. We have also perused the record
of the trial court. The case of prosecution has been tried to be proved by (i)
direct evidence of eyewitnesses viz; PWs 2,3,4&6 (ii) circumstantial
evidence of PWs 7&8 and (iii) Medical evidence of PW-9. The appellant in
the trial court has also led defence evidence to demolish the case of
prosecution and has examined three (3) DWs viz; DW-1 Talab Hussain, DW-
2 Qutab Din & DW-3 Abdul Rashid.
6. Appellant/convict has preferred this appeal from jail which has been
registered as Criminal First Appeal No. 32/2014 and the Ld. Sessions Judge
Bhaderwah has also made reference to this court for confirmation of the
conviction of the sentence u/s 374 Cr.pc vide his judgment dated 04-06-2014.
The appeal as well as the reference shall be disposed of by this judgment.
7. To prove the case against the appellant/convict the prosecution has led oral as
well as documentary evidence. The prosecution has examined as many as 8
witnesses out of listed 10. The prosecution examined oral witnesses as
under:-
PW Name Role
2 Aashiq Hussain S/O eyewitness
Sher Mohd Rather
3 Mohammad Ramzan eyewitness
4 Muzaffer Ahmed eyewitness
6 Noor Mohd eyewitness & witness to receipt of dead
body & hearing of sound of firing]
7 Nazeer Ahmed witness to circumstantial evidence &
seizure of dead body of deceased
8 Javed lqbal Circumstantial witness
9 Dr. Nizam-Ud-Din Dar Witness to postmortem of deceased
10 K.K Sharma SHO The then I/O of the case.
8. Before coming to the conclusion, whether prosecution has successfully
substantiated charges against appellant/convict beyond hilt, we have found it
pertinent to give a brief resume of the evidence tendered by the prosecution
witnesses before the trial court, as the trial court has not fully translated the
evidence of some of the prosecution witnesses from Urdu transcript into
English. Relevant portions of the testimonies of the prosecution witnesses
can be summarized as under:-
PW-2 Aashiq Hussain [S/O Sher Mohd, eyewitness] has stated, that he
knows the accused present in the court and other accused too. On 04/07/2002
at about 8.30/09 pm he was present in his house. His brothers namely, Mohd
Ramzan & Muzaffar Hussain Ss/o of Sher Mohd were present in the house
and had sat after taking the dinner. After this, suddenly two terrorists accused
namely Jan Mohammad & Irfan armed with guns entered in the house and
they made his father frightened and asked him that their boss has called him
out. They forcibly took out his father and they followed them. Outside the
door, accused Tariq Mattoo was standing. All of the three accused took his
father towards downward in the street where on an electric pole electric bulb
was in on mode. There, three more terrorists namely Jamat Ali S/O Ghulam
Rasool Rather R/O Changa , Ghulam Rasool Butt R/O Changa &
Mohammad Alyas Butt S/O Ahad Butt R/O Gawari were present. All these
three namely, Jamat Ali, Ghulam Rasool & Mohammad Alyas dragged his
father towards downward. Accused Tariq frightened them and asked them to
stay behind. Till that time, his father made hue and cry by saying that Noor
Mohd save his life. Then Noor Mohd and Mushtaq Ahmed came out of their
houses. Mohd Alyas, Jamat and Ghulam Rasool told accused Irfan and Jan
Mohamad that they should shoot his father who should not survive. Accused
Irfan & Jan Mohamad showered bullets upon his father and killed him.
Accused Tariq Hussain, Jan Mohamad and Irfan said that deceased has been
made to sleep for ever and it should be seen as how is the enjoyment of the
post of Sarpanch. Terrorists namely Alyas, Jamat Ali & Ghulam Rasool told
them that if they took their name at any place then they would be met with
the same fate as Sher Mohd has met. After this, the terrorists fled away from
there. In the meanwhile, army threw trace light bomb and started firing. After
this, they took the dead body of their deceased in the room of their house.
After 20 minutes army and villagers had reached on spot. In the morning
police came on spot alongwith doctor. Police took the dead body in their
possession and got conducted it‟s postmortem. Police had recorded his
statement. Police had seized the clothes of his father. Seizure memo
regarding the clothes is true and correct, it bears his signature and is exhibited
as EXPW-AH. At this stage PP stated that the seized clothes are not in his
custody and therefore, are to be produced with the assistance of SSP Doda,
therefore, the statement of the witness may be deferred. On the request of PP
the statement of witness was deferred. In cross-examination deposes, that
village Gawari is about l km from their village. Houses of Javed lqbal,
Basharat Hussain are adjacent to his house. On the backside of these houses
at about 10/15 feet distance there are 50/60 houses. A common pathway to
village Soti passes near their house. Police had come on the next morning. He
had told the police regarding the occurrence in detail in presence of large
number of people. He got recorded his statement regarding occurrence before
police and had not given the written or verbal report to police. His statement
which was recorded by police was signed by him. The deceased suffered two
bullet injuries, one on the chest and other on-the ribs. There were bullet
marks on one wall also. He showed the place of occurrence to the police on
the basis of which police prepared the site plan. The police seized blood from
the spot. The clothes of the deceased had marks of bullets. He has not seen
the seized clothes in the court today. The statement which he made before
police and mentioned names of three terrorists Tariq Mattoo, Jan Mohamad
and Irfan that they showered bullets upon his father is a wrong statement, and
the statement which he made in the court today that Jan Mohamad and Irfan
had pumped bullets upon his father is correct statement. Mohd Ramzan and
Muzaffar are his real brothers while PWs Mushtaq and Noor Mohd are not
real brothers of his father. Muzaffar Hussain and Mohd Ramzan were with
him at the time of occurrence, while Mushtaq and Noor Mohd PWs had come
on spot after the occurrence, but both of them had seen the terrorists,
however, they did not made any efforts to catch them.
PW-3 Mohammad Ramzan [S/O Sher Mohamad , eyewitness] has stated,
that he knows the accused present in the court and the other accused too. On
04/07/2002 he alongwith his brothers and parents was sitting in his house.
During this time, two terrorists namely Mohd Irfan and Jan Mohamad armed
with guns came inside the house and told his father that his Boss is calling
him out. His father told that who is their Boss and they replied that Tariq
Mattoo is standing outside. Then the two terrorists made his father to come
out. At this, he and his brother Ashiq Hussain alongwith their father came
out. Thereafter, the three terrorists made his father to come down in the street
where an electric bulb was lightning on electric pole. He and his brothers
went downwards the street where three other terrorists namely, Ghulam
Rasool S/O Ahmad Butt R/O Chinga, Mohd ALyas S/O Ahad Butt R/O
Gawari & Jamat Ali S/O Ghulam Rasool Rather R/O Changa were present.
These three persons Ghulam Rasool, Mohd Alyas and Jamat Ali dragged his
father from his legs upto a distance of 10/15 feets. These three terrorists
asked accused Tariq Mattoo, Jan Mohamad, Irfan to fire upon his father. In
the meantime, his father told that Noor Mohd save him, then Noor Mohd
came out of his house. Then Tariq Mattoo , Jan Mohamad & Irfan showered
bullets upon his father who succumbed to the injuries on spot. Tariq Mattoo ,
Jan Mohamad & Irfan said that they have made his father Sarpanch forever.
His father had received bullets on his chest. Ghulam Rasool Mohd Alyas and
Jamat Ali threatened them that if they told the incident to anyone, they will
met with the same fate. Army threw search light bomb and from the spot
terrorists fled away. They brought the dead body of their father in one room
of their house. After half an hour army came there and after that villagers
came there. Police came on spot on the next day. Police recorded his
statement. The postmortem of dead body was conducted. Clothes of his
father were seized and in this regard contents of seizure memo dated 05-07-
2007 is true and correct, it bears his signature and is already exhibited as
EXPW-AH. In cross-examination deposes, that where his house is located,
adjacent to it, there is a Mohalla. His mother has died. They three brothers
alongwith their father and accused had come out in the street where there was
electric pole where PW Noor Mohammad was present on spot when the
accused handed over his father to the other three terrorists who dragged his
father. This scene was witnessed by them, and during this time he and his
family members neither made any hue and cry nor told the incident to the
neighbourers. His father had not received injuries on the legs and the clothes
even were not torn. During firing 20/30 rounds were fired which struck on
the walls and on his father. Ghulam Rasool, Alyas and Jamat Ali were
identified by the light of the bulb which was at a distance of 10/15 feet. From
the bullet fires blood has oozed out from the body of his father. He, Noor
Mohd and Ashiq had taken his father inside the house and thereby blood had
struck on their hands and clothes. He, his brothers and Noor Mohd had not
enquired from the accused and the other three persons as why they were
taking their father. About 400/500 people came on spot after police came
there, however, he does not remember the names of any person. Next day,
police had come on spot and prepared the report which was signed by him.
He had told the police in detail. At that time, when he gave written report to
police, his brothers were not present there. Police had remained on spot for
about 1 hour and during this time he had given detailed report to the police.
They handed over the clothes to police which were blood stained and clothes
of his brothers which were stained with blood were not given to police.
Police had recorded his statement once and had obtained his signature, but
the said statement was not within his knowledge. His enquiry was made by
police in presence of all the villagers. In his statement u/s 161 Cr.pc written
to the effect, that three accused came inside the house is not correct. In his
statement u/s 161 Cr.pc it is also incorrect, that three terrorists took his father
in the street and started firing. It is also incorrectly written in his statement
u/s 161 Cr.pc that he on hearing the sound of firing came on spot. Police had
incorrectly written in his statement that the others were identified by the trace
bomb light. Police had itself written his statement as he has not given such a
statement to police. His brothers had not told Numberdar and Chowkidar
regarding the occurrence
PW-4 Muzaffer Ahmed [S/O Sher Mohamad , eyewitness] has deposed,
that he knows the accused present in the court and the other accused too. On
04/07/2002 he was in his house. Ashiq and Ramzan were also present in the
house. During night time at 8/9pm, two terrorists came inside the house and
asked his father that their Boss is calling him out. The terrorists which came
inside the house were Jan Mohamad and Irfan. He also saw three civilians
namely Mohammad Alyas S/O Ahmadoo resident of Gawari, Ghulam Rasool
S/O Ahmadoo resident of Changa and Jamat Ali S/O Ghulam Rasool outside.
These three civilians dragged his father down and asked the terrorists to kill
his father. The accused persons fired upon their father. On hearing the cries
of his father, his uncle Noor Mohammad came out. The aforesaid three
civilians threatened that in case anyone narrates this incident he too will face
the same music. The army switched on the search lights and the accused
alongwith aforesaid three civilians fled away. The body of the deceased was
brought inside the house. The army reached on spot after about half an hour.
Next morning police and doctor came. The dead body was subjected to
postmortem. In cross-examination deposes, that there are more than
hundred houses in village Changa. Village Gawari is about 1 kilometer from
the place of occurrence. In those days one Ghulam Rasool was chowkidar of
the village and the numberdar also is of the same name.There was chatting
between his father and the civilians accompanying the accused for 15-20
minutes before the occurrence. Neither he nor his brothers told about the
incident to the numberdar or chowkidar or the people of locality who came
on spot. However, he told about the incident to the police on next day when
the police alongwith doctor came on spot Empty cartridges were not lying on
spot. The people of locality heard in Sound of firing but nobody came on
spot. He used to meet the accused and the civilians accompanying the
accused prior to the occurrence.
PW-6 Noor Mohammad [S/O Abdul Rehman, eyewitness& witness to
receipt of dead body & hearing of sound of firing] has deposed, that he
knows the accused present in the court and also accused Irfan Ali and Jan
Mohamad. Deceased Sher Mohammad was his brother who was killed by the
accused alongwith accused Tariq. He was shot dead. On July 2002 he
alongwith his brother Mushtaq Ahmed was in his house. It was 9.00 pm
when they were taking dinner and heard a sound of fire whereby he came out
and alongwith him his brother Mushtaq also came out. As soon as, they came
out they saw that deceased Sher Mohammad had received bullet injury.
When they came out, during that time accused fired second bullet shot upon
the deceased who died. They came out and took the deceased inside the
house. In addition to deceased they saw the accused outside who were armed
with guns. During this time, army threw search light and accused fled away.
After this, on the next morning police came on spot and conducted the
postmortem of the deceased and handed over the dead body to them. In this
regard papers were prepared. He has heard the contents of identification of
the dead body which is true and correct, he identifies his signature on it and it
is exhibited as EXPW-NM. Contents of seizure memo of dead body of the
deceased are true and correct, he identifies his signature on it and it is
exhibited as EXPW-NM/1. When they come out from their house accused
had told him that they have slept the deceased forever. His deceased brother
had suffered two bullet injuries. In cross examination has stated, that all his
brothers were living separately since 1994. Deceased used to stay on the first
floor of the building, the ground floor of which is in his possession. Their
house is located in a dense locality. Houses of one Gul Mohammad S/O Buta
Shaikh and that of Javed and Ghulam Hussain are adjacent to their house.
The picket of army is about 1 kilometer from their house. His statement and
the statement of his brother Mushtaq were recorded by the police on
04/07/2002. The house of Mushtaq is about one Jareeb from his house. Army
also opened firing after the incident and the bullets hit the walls of the
houses. The police photographed the walls hit by the bullets and prepared
some papers. In those days Ghulam Rasool was numberdar of the village and
Ahmed Rashed was chowkidar. Numberdar and chowkidar were called on
spot and he told them that the terrorists killed the deceased. He told the same
thing to the police also in the morning. Those terrorists were the accused
persons only. The accused are inhabitants of his village. His clothes and the
clothes of his brother Mushtaq were stained with blood while shifting the
deceased to the house. Police did not seize their clothes. Postmortem was
conducted on next day at about 12.00 noon/1.00 pm.
PW-7 Nazeer Ahmed [S/O Abudalla Butt, witness to circumstantial
evidence & seizure of dead body of deceased] has deposed, that he knows the
accused present in the court and also knew the deceased. On 04/07/2002,
while he was in his house firing started in the evening. After about half an
hour of the firing he heard some cries from the house of the deceased. He
reached the house of the deceased where some army personnel were also
present. The dead body of the deceased was lying in a room and the army
personnel told him that the terrorists have killed the deceased. Family
members of the deceased were saying that three terrorists including Babloo
and Hamza came to their house. Afterwards police also came on spot and the
dead body was handed over to the heirs of the deceased. Receipt EXPW-JI
and identification memo EXPW-NM with respect to dead body on the file
bear his signatures, contents whereof are correct. In cross-examination
deposes, that in those days cross-firing between the militants and security
forces was a common feature. Number of people of locality were present in
the house of deceased when he reached there, and all the family members of
deceased and army people present there were saying that the
occurrence/incident has been committed by Hamza and Babloo terrorists.
Sons of the deceased, other relatives of deceased and the army personnel who
was present there had not named accused present in the court.
PW-8 Javed lqbal [circumstantial witness] has stated, that he knows the
accused. On 04/07/2007 in the evening he was told by Sajad Ahmed and
Wahid that terrorists have killed Sarpanch Sher Mohammad. He alongwith
Rahat Hussain reached the house of deceased. People assembled on spot were
saying that the terrorists Babloo and Hamza have killed the deceased. Army
also reached on spot after about one hour. Police came next morning. The
receipt with respect to dead body on the file bears his signatures, contents
whereof are correct and is exhibited as EXPW-JI. Deceased had suffered one
bullet injury. In cross-examination deposes, that the heirs of deceased and
other people did not nominate the accused Tariq during investigation.
PW-9 Dr. Nizam-Ud-Din Dar on 29-03-2010 has deposed as under:-
"In his examination-in-chief conducted by PP the witness has deposed that on
05-07-2002 he was posted at Sub District Hospital Gandoh. On this day he
has conducted the postmortem of deceased Sher Mohd Rather S/O Mohd
Sultan Rather R/O Changa Balesa Tehsil Gandho Balesa District Doda. After
conducting postmortem he had found that the death of deceased has been
caused by haemorraghic shock by bullet injuries. He had found that there was
the bullet injury on the chest. There was also the bullet injury on the right
iliac Fossa. The weapon of offence has not been shown to him. He cannot say
as to what type of weapon was used in the commission of this murder. The
postmortem report is in his hand bears is signature and its contents are true. It
has exhibited as EX.PW-ND. No other question has been put in examination-
in-chief. In his cross-examination conducted by the counsel for the accused
the witness has deposed that he does not know who had brought the deceased
for conduction of postmortem and no mention has been made about this fact
in the postmortem report. At 10 am deceased had been brought in the
hospital. The deceased had been brought for the conduction of postmortem
by SHO concerned. He has conducted postmortem on the authority given by
BMO Gandoh. The stomach of deceased had not been opened because the
cause of death was the maemorraghic shock caused by bullet injury. When
deceased was brought in the hospital it was not ant mortem".
PW-10 KK. Sharma has deposed, that in 2002 he was posted as SHO Police
Station Gandoh. On 04/07/2002 information was received from reliable
sources in Police Station Gandoh that at about 8.30 pm two terrorists Irfan
and Jan Mohammad entered the house of Sher Mohammad Sarpanch in
village Changa and dragged him out. Three more terrorists including Tariq
Mattoo were standing outside. Sher Mohammad Sarpanch called Noor
Mohammad and in the meanwhile the militants fired at Sher Mohammad. On
the basis of this report Crime No. 57/2002 for the commission of offences
under sections 302 RPC, 7/27 Arms Act & 3 PSS Act was registered and he
started the investigation. He left for the spot next morning. He seized the
dead body and got postmortem conducted. After postmortem he handed over
the dead body of the deceased to it legal heirs. He seized the clothes of the
deceased and recorded the statements of witnesses. The site plan on the file
was prepared by his reader on his instructions, which bear his signatures and
it is true as per spot position and is exhibited as EXPW-KK. FIR 57/2002 on
the file also bear his signatures, contents whereof are correct and is exhibited
as EXPW-KK/1. Memos EXPW-NM, EXPW-NM/1, EXPW-JI & EXPW-
AH on the file bear his signatures, contents whereof are correct. As per his
investigation, accused are proved to have committed offences punishable
under sections 302 RPC, 7/27 Arms act & 3 PSS Act. In cross-examination
has stated, that village Changa is 8/9 kms from Police Station Gandoh and the
Court at Gandoh is 150 meters from Police Station. He had received
information from reliable source regarding occurrence on 04-07-2002 at
about 8pm. During summer season, the sun usually sets at 7/7.30pm. On 04-
07-2002 he had not gone on spot for investigation because IED was laid in
the way. Then on next day on 05-07-2002 he went on spot during morning at
8/9am. Large number of people including Numberdar & Chowkidar had
assembled on spot. Place of occurrence is hugely crowded area having houses
located nearby and at far of place. He had enquired about the occurrence
from Numberdar, Chowkidar and the house owners. Regarding occurrence,
the family members of deceased neither give any written report to him, nor
he made any enquiry from them nor did he receive any written report from
them. As per his investigation, out of the three terrorists standing outside the
house before the occurrence, only one could be identified. In the statement of
PW Ashiq Hussain recorded u/s 161 Cr.pc it is not mentioned that by whose
bullet deceased had died. Prosecution witnesses 2,3,4 are sons of deceased
while pws 5,6 are real brothers of deceased and remaining witnesses are
people of the area but are not their relatives. It has come in his investigation
that five (5) terrorists were involved in the occurrence. He remained on spot
for 3/4 hours and during this period he completed the investigation. Nothing
was done after 5/7/2002. He reached Police Station Gandoh at about 2/3pm
afternoon. FIR was dispatched to the Court on 06/07/2002 because he had
completed the investigation on 05-07-2002. He does not remember the name
of the then reader who has not even been cited as witness. Whole of the
written proceedings have been done by the reader who had taken dictation
from him and he has only signed on the papers. The scene of occurrence was
identified to him by the family members of deceased and none of the
witnesses had told him regarding the place of occurrence. In the site plan it is
not mentioned that from which room upto which place the deceased was
dragged. Around the place of occurrence, houses of Asghar, Javed Bhat, Gul
Mohammad and Ghulam Hussain are located whose mention is made in the
site plan, but these people have not been cited as witnesses and he has not
even recorded their statements. Regarding the place of occurrence or the
body of the deceased he has not lifted any photographs. He does not
remember whether there were marks of the bullets on the walls or not. He
had not seized the empty cartridges from the scene of crime. He had not
made mention of this fact in the site plan that empty cartridges were not
found on spot. On spot, dead body was lying on its back side, but the legs of
the dead body were lying in which direction, he had not mentioned it in the
site plan. He cannot say anything about the involvement of Mohammad Ilyas,
Ghulam Rasool and Jamat Ali in the occurrence as stated by pws Muzaffar,
Ashiq Hussain & Mohamad Ramzan in their statements in the Court. He had
not seen Tariq Mattoo by his face nor had identified him. None of the
witnesses had told him that accused Tariq is associated with HM
organization. He had not seized the blood stained or simple soil from the
scene of crime. He neither sealed the seized clothes of the deceased nor made
the Magistrate as witness. The custodian of the clothes is the I.O who use to
handover the clothes to the Malkhana Incharge. He had not sealed the clothes
of the deceased but had handed over them in loose condition to the Munshi.
In those days, there were other terrorists of the name of Tariq in the area of
Gandoh Chinga.
9. Appellant/convict to demolish the prosecution case, has examined three (3)
witnesses in defence namely DW-1 Talab Hussain, DW-2 Qutab Din & DW-
3 Abdul Rashid. The testimonies of defence witnesses recorded before the
trial court are summarized as under:-
D E F E N C E E V I D E N C E:-
DW-1 Talib Hussain has stated, that he knows the accused and knew the
deceased also. In July 2002, one day at about 9/10pm there
was cross-firing in village Changa in which the deceased Sher
Mohammad sustained bullet injury and died. He reached in the house of
the deceased after the firing had stopped. There were 20/25 people
present including heirs of deceased. No one nominated the assailants
who fired upon the deceased. There was no light in the village at that
time. Police came on spot and inquired about the occurrence. No one
nominated the accused to have been involved in the firing in which the
deceased died. The accused has never remained involved in militancy.
His house is near the house of deceased. He does not know personally as to
how the deceased died.
DW-2 Qutub Din has stated, that he knows the accused and knew
the deceased also. About 10 years back at about 8/9 pm on the day of
occurrence he reached the house of the deceased on hearing hue and cry. He
saw the deceased has been hit by a bullet. After few minutes other people of
the locality also reached on spot. On enquiry the family
members of the deceased told that the deceased had gone out to urinate
when he was hit by a bullet in the cross-firing. After sometime, army
personnel also reached on spot. Next day police also came on spot and
they were also told that the deceased has been hit by a bullet in the cross-
firing. Nobody said on spot that the deceased has been killed by the militants
neither the accused persons were nominated to have carried out the attack.
During those days militancy was at its peak and the cross- firing between the
forces and the militants was a common feature. The accused was involved in
the militancy. In cross-examination by PP stated that the deceased died
during summer. In 2002 the accused use to run a hotel/tea stall near Police
Station Gandoh. House of Talib Hussain is 3/4 minutes walking distance
from the house of the deceased.
DW-3 Abdul Rashid has stated that he knows the accused and knew
the deceased also. In July 2002 at about 8/9 pm he reached the house of
the deceased after 2/3 minutes of firing. He saw the deceased has been
hit by a bullet. Qutub Din, Talib Hussain and Ghulam Mustfa also reached
the house of the deceased when he reached there. The deceased was alive at
the time when he reached there. The deceased told him by
Signs that fire came from this direction where the forces have laid
cordon. The police came on spot in the morning and he told the police
what the deceased told him by signs. The deceased was his relative.
During those days militancy was at its peak and the cross-firing between the
forces and the militants was a common feature. Some boys of the locality had
joined militancy in those days and there were 5/6 persons of the name of
Tariq involved in militancy but he has no personal knowledge about this. In
cross examination by PP stated that the accused is known to him since
childhood. He does not know whether the accused remained associated in
militancy for 10/12 years. He reached on spot after the occurrence and does
not know how the occurrence took place.
10. The 1st limb of argument canvassed by Ld. Counsel for appellant/convict is,
"that the impugned judgment is silent as with whom appellant/convict shared
common intention because the prosecution eyewitnesses who claimed to have
witnessed the occurrence have not named appellant in the commission of
crime, thereby, have not shown his presence on the spot of occurrence, as
none of them have attributed any act of commission or omission or role
played by the appellant in the occurrence, as for sustaining conviction against
appellant u/s 302/34 IPC it is necessary that there should be specific finding
that appellant has shared common intention with other accused, appellant has
been convicted for section 34 RPC without framing the said charge against
him, the impugned judgment of the trial court suffers from glaring illegality
which is unsustainable in the eyes of law". To support his arguments, Ld.
Counsel for appellant/convict has relied upon the judgments reported in, (i)
1999 (8) Supreme 6 [Ramashish Yadav & Ors--Appellant Versus State of
Bihar--Respondent] & (ii) 2015 Supreme (SC) 993 [BALU @ BALA
SUBRAMANIAM & ANR--Appellants Versus State (U.T. OF
PONDICHERRY)--Respondent].
Per Contra, Sh. Suneel Malhotra Ld. GA for respondents has
vehemently articulated arguments, that as per section 535/537 of Cr.PC
(J&K) the effect of omission to prepare/frame charge is no ground to
invalidate the sentence or finding pronounced by the court, and the arguments
of Ld. Counsel for appellant that charge against accused was only framed u/s
302 RPC r/w Sec. 7/27 Arms Act r/w 3 PSS Act and not as joint and criminal
liability in terms of section 34 IPC and the conviction therefore is invalid,
does not hold water.
The prosecution story as unfolded in FIR 57/2002
reveals, that on 04-07-2002 at 2130 pm from reliable source an information
was received in Police Station Gandoh Bhalessa that at Changa terrorists
namely (i) Irfan Ali @ Babloo S/O Shafqat Ali Butt R/O Khilotran, (ii) Jan
Mohammad Code Hamza S/O Hasham Din Gujjar R/O Malikpura Pain (iii)
Tariq Mattoo Code Gorkha S/O Ghulam Nabi Mattoo R/O Soti armed with
deadly weapons entered in the house of Sher Mohd Rather S/O Mohd
Ramzan Rather and called him out from his house, where two terrorists of
unknown names were standing, three (3) terrorists namely Irfan Ali @
Babloo S/O Shafqat Ali Butt R/O Khilotran, (ii) Jan Mohammad Code
Hamza S/O Hasham Din Gujjar R/O Malikpura Pain & (iii) Tariq Mattoo
Code Gorkha S/O Ghulam Nabi Mattoo R/O Soti fired several bullets from
their weapons at Sher Mohd killing him on spot. After completion of
investigation, charge sheet against accused persons for commission of
offences punishable u/ss 302 RPC, 7/27 Arms Act & 3 PSS Act came to be
presented by P/S Gandoh on 08-02-2003 before the court of Ld. JMIC
Gandoh, who on the same date committed the challan to the court of Ld.
Sessions Judge Bhaderwah. During the pendency of challan, A-3 Tariq
Mattoo was apprehended in execution of General Warrants of Arrest issued
against him under the provision of Sec. 512 Cr.pc and was made to stand
trial, while the identity of other two more terrorists allegedly involved in
commission of crime could not be ascertained. Charges against
appellant/convict/accused were formally framed on 31-10-2006 for
commission of offences u/ss 302 RPC, 7/27 Arms Act & 3 PSS Act. Charges
were read over and explained to appellant/accused who pleaded not guilty
and claimed trial. To substantiate the charges against appellant/accused,
prosecution has examined as many as 8 witnesses out of listed 10, out of
which 4 witnesses viz; PW-2 Ashiq Hussain, PW-3 Mohd Ramzan, PW-4
Muzaffar Hussain (sons of deceased Sher Mohd Rather) & PW-6 Noor
Mohd (b/o deceased Sher Mohd Rather) are eyewitnesses to the occurrence.
In 1999 (8) Supreme 6 [Ramashish Yadav & Ors--Appellant
Versus State of Bihar--Respondent], relied by Ld. Counsel for
appellant/convict, Hon‟ble Supreme Court while partly upholding the
judgment of conviction of some of the accused indicted for commission of
murder u/s 302 r/w 34 IPC and observing that the common
intention/existence of pre-arranged plan or prior concert or meeting of minds
of accused/offenders can be determined from the conduct and the declaration
made by the offenders just before mounting the attack, in para 3 of the
judgment held as under:-
(3) Coming to the question of applicability of Section
34 for the murder of Tapeshwar, we find from the
evidence of the three eye witnesses that while Ram
Pravesh Yadav and Ramanand Yadav caught hold
of Tapesh-war, accused Samundar Yadav and Sheo
Layak Yadav came with gandasa and gave blows on
the head of Tapeshwar, as a result of which
Tapeshwar died. Section 34 lays down a principle of
joint liability in the doing of a criminal act. The
essence of that liability is to be found in the existence
of common intention animating the accused leading to
the doing of a criminal act in furtherance of such
intention. The distinct feature of Section 34 is the
element of participation in action. The common
intention implies acting in concert, existence of a
pre-arranged plan which is to be proved either
from conduct or from cir-cumstances or from any
incriminating facts. It requires a pre-arranged plan
and it pre-supposes prior concert. Therefore, there
must be prior meeting of minds. The prior concert or
meeting of minds may be determined from the
conduct of the offenders unfolding itself during the
course of action and the declaration made by them just
before mounting the attack. It can also be developed
at the spur of the moment but there must be pre-
arrangement or premeditated concert. This being the
requirement of law for applicability of Section 34
IPC, from the mere fact that accused Ram Pravesh
Yadav and Ramanand Yadav came and caught hold of
Tapeshwar, whereafter Samundar Yadav and Sheo
Layak Yadav came with gandasa in their hands and
gave blows by means of gandasa, it cannot be said
that the accused Ram Pravesh Yadav and
Ramanand Yadav shared the common intention
with accused Samundar Yadav and Sheo Layak
Yadav. Consequently, accused Ram Pravesh Yadav
and Ramanand Yadav cannot be held guilty of the
charge under Section 302/34 IPC but accused
Samundar Yadav and Sheo Layak Yadav did commit
the offence under Section 302/34, having assaulted
deceased Tapeshwar on his head by means of gandasa
on account of which Tapeshwar died. The accused
Ram Pravesh Yadav and Ramanand Yadav are,
therefore, acquitted of the charges levelled against
them and they be set at liberty forthwith. So far as
the two other appellants are concerned, namely,
Ramashish Yadav and Sukhdeo Yadav, they have
merely caused injury to the informant by means of a
knife and for causing such injury they can only be
convicted under Section 324/34 IPC and are sentenced
to imprisonment for two years. But they have already
been in custody for more than seven years by now,
they should also be set at liberty forthwith. In the net
result, therefore, the conviction of appellant Ram Das
Yadav under Section 302 IPC and sentence of
impris-onment for life is upheld and his appeal stands
dismissed. Conviction of all other appellants under
Section 302/149 is set aside. Conviction of appellants
Samundar Yadav and Sheo Layak Yadav under
Section 302/34 IPC and sentence of imprisonment for
life is upheld. Appeal by them, therefore, stands
dismissed. Accused Ram Parvesh and Ramanand are
acquitted of the charges and be set at liberty forthwith.
Accused Ramashish Yadav and Sukhdeo Yadav are
convicted under Section 324/34 IPC and sentenced to
two years‟ R.I. and since they have already been in
custody for more than seven years, they are directed
to be set at liberty forthwith.
Facts of the case law (Supra) are, that as many as 13 accused persons were
ploughing a land, while victim went to the land objecting to the ploughing,
whereby, fight ensued, accused persons caught hold of the victim and 2 other
accused inflicted injuries on the victim, the trial court convicted the accused
persons who had also caught hold the victim u/s 302 r/w 34 IPC. Hon‟ble
Supreme Court acquitted two (2) accused persons namely Ram Parvesh
Yadav and Ramanana Yadav who had only caught hold of victim Tapeshwar,
while other accused Samundar Yadav & Sheo Layak Yadav who came with
gandasa in their hands and gave blows by means of the said gandasa and
killed the victim were convicted u/s 302/34 IPC by observing that accused
Ram Parvesh Yadav and Ramanand Yadav did not share common intention
with the other accused as there was no prior arranged plan or meeting of
minds to commit the offence.
In another case law reported in, 2015 Supreme (SC) 993 [BALU
@ BALA SUBRAMANIAM & ANR--Appellants Versus State (U.T. OF
PONDICHERRY)--Respondent], relied by Ld. Counsel for
appellant/convict, Hon‟ble Supreme Court while appreciating the scope of
Section 34 IPC regarding the joint liability of criminal act done by more than
one person, and while setting aside and modifying the judgment of conviction
and sentence u/s 302 IPC rendered by the trial court and upheld by the High
Court of Madras, and while observing that when the individual acts of
accused are random and done without meeting of minds, accused can be held
guilty for their individual acts, and if no specific overt act is attributed to
the accused in attacking the victim/prosecution witness, it cannot be
inferred that accused have shared/acted in furtherance of common
intention, in paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18 & 19 of the
judgment held as under:-
10. To invoke Section 34 IPC, it must be established
that the criminal act was done by more than one
person in furtherance of common intention of all. It
must, therefore, be proved that:- (i) there was
common intention on the part of several persons to
commit a particular crime and (ii) the crime was
actually committed by them in furtherance of that
common intention. The essence of liability under
Section 34 IPC is simultaneous conscious mind of
persons participating in the criminal action to
bring about a particular result. Minds regarding
the sharing of common intention gets satisfied when
an overt act is established qua each of the accused.
Common intention implies pre-arranged plan and
acting in concert pursuant to the pre-arranged plan.
Common intention is an intention to commit the
crime actually committed and each accused person
can be convicted of that crime, only if he has
participated in that common intention.
11. The classic case on the subject is the judgment of
the Privy Council in Mahbub Shah v. Emperor, AIR
1945 PC 118, wherein it was held as under:-
"...Section 34 lays down a principle of joint
liability in the doing of a criminal act. The section
does not say "the common intentions of all" nor does
it say "an intention common to all". Under the
section, the essence of that liability is to be found in
the existence of a common intention animating the
accused leading to the doing of a criminal act in
furtherance of such intention. To invoke the aid of
Section 34 successfully, it must be shown that the
criminal act complained against was done by one of
the accused persons in the furtherance of the
common intention of all; if this is shown, then
liability for the crime may be imposed on any one of
the persons in the same manner as if the act were
done by him alone. This being the principle, it is
clear to their Lordships that common intention within
the meaning of the section implies a pre-arranged
plan, and to convict the accused of an offence
applying the section it should be proved that the
criminal act was done in concert pursuant to the pre-
arranged plan. As has been often observed, it is
difficult if not impossible to procure direct evidence
to prove the intention of an individual; in most cases
it has to be inferred from his act or conduct or other
relevant circumstances of the case."(Underlining
added)
Reiterating the above principles laid down by the
Privy Council in Mahbub Shah‟s case, in Shankerlal
Kacharabhai and Others vs. State of Gujarat, AIR
1965 SC 1260, this Court held that the criminal act
mentioned in Section 34 IPC is the result of the
concerted action of more than one person and if the
said result was reached in furtherance of the common
intention, each person is liable for the result as if he
had done it himself.
12. In Ramesh Singh alias photti v. State of A.P.,
(2004) 11 SCC 305, this Court held as under:-
"12. ... As a general principle in a case of
criminal liability it is the primary responsibility of
the person who actually commits the offence and
only that person who has committed the crime can be
held guilty. By introducing Section 34 in the Penal
Code the legislature laid down the principle of joint
liability in doing a criminal act. The essence of that
liability is to be found in the existence of a common
intention connecting the accused leading to the doing
of a criminal act in furtherance of such intention.
Thus, if the act is the result of a common intention
then every person who did the criminal act with that
common intention would be responsible for the
offence committed irrespective of the share which he
had in its perpetration. Section 34 IPC embodies the
principle of joint liability in doing the criminal act
based on a common intention. Common intention
essentially being a state of mind it is very difficult to
procure direct evidence to prove such intention.
Therefore, in most cases it has to be inferred from the
act like, the conduct of the accused or other relevant
circumstances of the case. The inference can be
gathered from the manner in which the accused
arrived at the scene and mounted the attack, the
determination and concert with which the attack was
made, and from the nature of injury caused by one or
some of them. The contributory acts of the persons
who are not responsible for the injury can further be
inferred from the subsequent conduct after the attack.
In this regard even an illegal omission on the part of
such accused can indicate the sharing of common
intention. In other words, the totality of
circumstances must be taken into consideration in
arriving at the conclusion whether the accused had
the common intention to commit an offence of which
they could be convicted. (See Noor Mohammad
Mohd. Yusuf Momin v. State of Maharashtra, (1970)
1 SCC 696)" (Underlining added)
13. Common intention is seldom capable of direct
proof, it is almost invariably to be inferred from
proved circumstances relating to the entire conduct of
all the persons and not only from the individual act
actually performed. The inference to be drawn from
the manner of the origin of the occurrence, the
manner in which the accused arrived at the scene and
the concert with which attack was made and from the
injuries caused by one or some of them. The criminal
act actually committed would certainly be one of the
important factor to be taken into consideration but
should not be taken to be the sole factor.
14. Under Section 34 IPC, a pre-concert in the sense
of a distinct previous plan is not necessary to be
proved. The common intention to bring about a
particular result may well develop on the spot as
between a number of persons, with reference to the
facts of the case and circumstances of the situation.
The question whether there was any common
intention or not depends upon the inference to be
drawn from the proving facts and circumstances of
each case. The totality of the circumstances must be
taken into consideration in arriving at the conclusion
whether the accused had a common intention to
commit an offence with which they could be
convicted.
15. In the light of the above principles, considering
the present case, in our view, the facts and
circumstances do not indicate that there was common
intention to commit murder of Ramesh. On
18.05.1997 in the forenoon, there were settlement
talks which did not materialise and therefore they left
the place stating that they could resume settlement
talks in the evening. On the evening at about 6.30
P.M., PW2-Kannan, PW3-Saravanan, PW5-Suresh,
Arumugam and Nagarajan went to Sakthi Nagar and
resumed settlement talks. At that time, one person
belonging to the accused party came and informed
that at the corner of lane, Anand-friend of the
accused party was cut by the person who came for
the settlement talks. On hearing the same, Giri-
Accused No.1 and Seenu-Accused No.2 questioned
the complainant party as to how they could attack
their man even when settlement talks were going on
and so saying accused No.1 and 2 took their knives
which they were hiding behind their back and
accused No. 3 to 5 took sticks from a cart standing
nearby attacked PWs 2, 3 and 5. At that time Ramesh
and his uncle PW-1 Murgan were coming in the
opposite direction and on seeing them accused No.1-
Giri pointing out to Ramesh, exhorted others saying
that Ramesh belonged to Kannan party and that he be
cut and by so saying accused No.1-Giri cut Ramesh
on his head with knife and Seenu-Accused No.2 also
attacked Ramesh with knife. The appellants and
Partheeban-Accused No.3 have also attacked Ramesh
with sticks on his face.
16. Facts and circumstances of the case show that the
attack was not a premeditated one nor was there a
prior concert. Initially settlement talks were on and
fight started only when the accused party was
informed by their person that Anand was cut by
complainant party and thus the incident arose
suddenly. No doubt, common intention could
develop even at the spur of the moment; but in the
present case, the way the occurrence took place as
depicted by the prosecution, there could not have
been common intention between the accused. The
totality of the circumstances must be taken into
consideration in order to arrive at a conclusion that
the appellants had a common intention to commit the
offence under which they were convicted. The
appellants were not armed and admittedly they are
said to have removed sticks from the bullock cart
standing nearby and on the exhortation by accused
No.1-Giri, the appellants have attacked Ramesh.
There may be similar intention in the minds of the
assailants to attack; but it cannot be said that the
appellants have acted in furtherance of common
intention to attract constructive liability under
Section 34 IPC. The facts and circumstances, in our
view, do not give rise to an inference of pre-concert.
17. For conviction of an offence read with Section 34
IPC, it is necessary that there should be a finding as
to the common intention of the participants. Though
the High Court has modified the conviction from
Section 302 read with Section 149 IPC as Section
302 read with Section 34 IPC, the High Court has not
recorded any finding as to how the appellants shared
the common intention to establish their constructive
liability to sustain the conviction under Section 302
read with Section 34 IPC. The appellants are said to
have attacked Ramesh with sticks on his face.
Ramesh sustained nasal bone fracture probably due
to the attack on the face. But this cannot be said to be
an act in furtherance of common intention to commit
the murder of Ramesh along with accused No.1 and
2. They are random individual acts done without
meeting of minds and in our view, the appellants can
be held liable only for their individual acts.
Considering the totality of the circumstances,
conviction of the appellants under Section 302 read
with Section 34 IPC cannot be sustained and the
same is modified as the conviction under Section 325
IPC and the sentence is modified to the period of
imprisonment already undergone.
18. For attacking the witnesses PW2-Kannan, PW4-
Muruganathan and PW5-Suresh, the appellants were
convicted by the trial court under Section 326 read
with Section 149 IPC and under Section 324 read
with Section 149 IPC which was modified by the
High Court. No specific overt act is attributed to
the appellants in attacking the prosecution
witnesses 2, 4 and 5. As the appellants have not
shared or acted in furtherance of common
intention in the attack of the witnesses and
therefore the conviction of the appellants as
modified by the High Court under Section 326
read with Section 34 IPC and under Section 324
read with Section 34 IPC cannot be sustained and
the same is liable to be set aside.
19. Conviction of the appellants Balu (A-4) and Raja
(A-5) under Section 302 read with Section 34 IPC is
modified as conviction under Section 325 IPC and
they are sentenced to undergo imprisonment to the
period already undergone. Their conviction under
Section 326 read with Section 34 IPC and under
Section 324 read with Section 34 IPC is set aside and
the appellants are acquitted of those charges. The
appeal is partly allowed to the extent indicated above.
The appellants are on bail. Their bail bonds shall
stand discharged.
Ratio of the judgment (Supra) makes the legal proposition abundantly clear,
that for bringing the criminal activity of accused within the meaning of
section 34 IPC, there must be specific overt act attributed to the accused in
attacking the victim. Applying the ratios of judgments of "Ramashish
Yadav" & "BALU @ BALA SUBRAMANIAM" (Supra) to the facts of the
case in hand, it is apt to reiterate here, that there are four (4) eyewitnesses in
the case who as per the prosecution story have seen the occurrence of
commission of murder of deceased Sher Mohd Rather by appellant/convict
and other co-accused. All the four (4) eyewitnesses to the occurrence viz;
PWs 2,3,4&6 namely Ashiq Hussain, Mohd Ramzan, Muzaffar Ahmed &
Noor Mohd have putforth highly contradictory and distorted versions before
the trial court while narrating the sequence of events leading to the murder of
deceased Sher Mohd. PW-2 Ashiq Hussain is the son of deceased Sher Mohd
Rather and is eyewitness to the occurrence. He has putforth evidence before
the trial court in examination-in-chief to the effect, that on 04-07-2002 at
8.30/9pm he alongwith his brothers PW-3 Mohd Ramzan & PW-4 Muzaffar
Ahmed were present in the house and had sat after taking dinner, suddenly,
two terrorists accused namely Jan Mohammad and Irfan Ali armed with guns
entered in the house and took out his father forcibly saying that their boss has
called him out, and outside the door accused Tariq Mattoo was standing, all
of the three (3) accused took his father towards downward in the street where
an electric bulb was burning, there (3) more terrorists namely Jamat Ali,
Ghulam Rasool and Mohd Alyas Butt were present and all of the accused
dragged their father towards downside, accused Tariq Mattoo frightened
them and asked them to stay, accused Mohd Alyas, Jamat & Ghulam Rasool
told accused Irfan & Jan Mohd to shoot his father, whereby accused Irfan and
Jan Mohd showered bullets upon his father and killed him. In cross-
examination, PW-2 Ashiq Hussain has undergone a complete summersault by
deposing, that he has made a wrong statement before police in which he had
mentioned that three (3) terrorists Tariq Mattoo, Jan Mohd and Irfan
showered bullets upon his father, and the statement which he made in the
court is true & correct statement that accused Jan Mohd and Irfan has
pumped bullets upon his father. PW-3 Mohd Ramzan is also son of deceased
Sher Mohd Rather and is also eyewitness to the occurrence but has given a
highly contradictory statement to that of PW-2 Ashiq Hussain by deposing
that accused Tariq Mattoo, Jan Mohd & Irfan pumped bullets upon his father
who died on spot. In cross-examination, he has categorically stated that
police recorded his statement once and obtained his signatures, but the said
statement was not within his knowledge, his statement u/s 161 Cr.pc is
incorrect that three (3) accused came inside the house took his father in the
street and started firing. PW-4 Muzaffar Ahmed is son of deceased Sher
Mohd Rather and eyewitnesses to the occurrence. He has further dented the
prosecution version by deposing before the trial court that only terrorists Jan
Mohd and Irfan came inside the house and he only saw three (3) civilians
namely Mohd Alyas, Ghulam Rasool & Jamat Ali outside his house who
dragged his father and asked the terrorists to kill him. PW-6 Noor Mohd is
brother of deceased Sher Mohd Rather and is also one of the eyewitness to
the occurrence. His testimony is to the effect, that on 02-07-2002 he
alongwith his brother Mushtaq Ahmed was inside his house, and at 9pm
when they were taking dinner they heard sound of fire, whereby, he came out
alongwith his brother Mushtaq and they saw that deceased Sher Mohd Rather
had received the bullet injury.
All the four (4) eyewitnesses aforesaid have putforth highly
contradictory evidence to that of the prosecution version. As per the contents
of FIR and prosecution version, three (3) terrorists namely Irfan Ali Code
Babloo, Jan Mohamad Code Hamza & Tariq Mattoo Code Gorkha with
deadly weapons entered in the house of deceased Sher Mohd Rather during
the night of 04-07-2002 at about 9.30pm, called deceased Sher Mohd Rather
out from his house where two (2) more unnamed terrorists were standing, the
aforesaid three (3) terrorists namely Irfan Ali, Jan Mohamad & Tariq Mattoo
fired several bullets from their weapons upon deceased Sher Mohd Rather
killing him on spot. None of the aforesaid PWs 2,3,4&6 namely Ashiq
Hussain, Mohd Ramzan, Muzaffar Ahmed & Noor Mohd have uttered any
word regarding the specific overt act of appellant/convict in attacking
victim/deceased Sher Mohd Rather. PW-2 Ashiq Hussain has only named
that accused Irfan and Jan Mohd fired upon his father, but has not uttered a
word regarding the overt and specific act attributed to the appellant in the
commission of murder of his deceased father Sher Mohd Rather. PW-3 Mohd
Ramzan has introduced a contradictory version that accused Mohd Alyas,
Jamat Ali & Ghulam Rasool asked accused Irfan, Jan Mohd & Tariq Mattoo
to fire upon his father. PW-4 Muzaffar Ahmed has not named
appellant/accused in the firing incident, as from his testimony no specific
overt act is attributed to appellant/convict in attacking the deceased/victim by
firing bullets upon him. PW-6 Noor Mohd „s deposition reveal that only he
heard sound of bullets, came out of the house and saw that deceased Sher
Mohd had received bullet injuries. PW-7 Nazeer Ahmed & PW-8 Javed Iqbal
are circumstantial witnesses as they have assembled in the house of deceased
after hearing about the firing incident. Their evidence depict that people
assembled in the house of deceased and the family members of deceased
were saying that terrorists namely, Babloo & Hamza came in the house of
deceased and killed the deceased. The depositions of aforesaid four (4)
eyewitnesses to the occurrence lead us to irresistible conclusion that
appellant/convict‟s presence on scene of crime is doubtful, nothing is
depicted from the evidence on record that appellant/convict has shared
common intention with other co-accused or acted in furtherance of common
intention, and no specific overt act is attributed to the appellant/convict in
attacking/showering the bullets from his weapon upon deceased Sher Mohd
Rather and committing his murder. In light of the above principles,
considering the present case, in our view, the facts and circumstances do not
indicate that there was common intention of appellant/convict with co-
accused to commit murder of deceased Sher Mohd Rather. The argument of
Ld. GA for respondent that eyewitnesses 2,3,4&6 namely, Ashiq Hussain,
Mohd Ramzan, Muzaffar Ahmed & Noor Mohd have categorically
mentioned the name of appellant/convict in the commission of crime, is
legally unsustainable, repelled, rejected and discarded.
11. The 2nd limb of arguments of Ld. Counsel for appellant is, "that the conduct
of witnesses in not saving the deceased is highly unnatural, at the time of
occurrence deceased Sher Mohd Rather raised hue and cry calling his brother
Noor Mohd to save his life, but the conduct of the eyewitness who are the
close relatives of deceased in not playing any role to save life of deceased
makes the prosecution story doubtful and unsustainable". To support his
arguments, Ld. Counsel has relied upon the decision of Hon‟ble Supreme
Court reported in, 2002 (5) Supreme 219 [Toran Singh--Appellant Versus
State of Madhya Pradesh--Respondent].
In the case of Toran Singh (Supra) Hon‟ble Supreme Court
while acquitting the accused and setting aside the impugned judgment of trial
court confirmed by High Court, while observing that the conduct of
eyewitnesses to the occurrence who was son of the deceased while seeing his
father being assaulted with axe on the neck and other parts of the body and
doing nothing to rescue him, the conduct of the said witness being highly un-
natural and improbable, in paragraphs 5,6,7,8&9 of the judgment held as
under:-
5. We have carefully considered the submissions made by the learned
counsel for the parties. Ordinarily this Court does not disturb or upset the
concurrent findings recorded by the trial court as affirmed by the High
Court, entering into the domain of appreciation of evidence. But in a case
like this where there was no proper and objective appreciation of evidence
by the trial court and the High Court, as a first court of appeal, fails in its
duty of re-appreciating the evidence and reviewing the evidence objectively
and simply endorses the conclusion arrived at by the trial court resulting in
patent miscarriage of justice, not only this Court interferes but it becomes
the duty of this Court to do so to prevent miscarriage of justice. In this case
we have no hesitation to upset the order of conviction and sentence passed
against the appellant for the reasons more than one given herein below.
(i) The motive for the alleged offence is that the deceased had
eloped with the wife of the appellant. If that be so, it was improbable
that the appellant would have gone from his village Haider to other
village Miyan Khedi of the deceased and PW-1 to call them for
properly setting the roof of his house as if no one else could do the
job in his village itself. In the background of ill-will and enmity, he
could not have chosen to call the deceased and his son to his house
and the deceased and his son could not have gone to the house of the
appellant and that too to stay there overnight. There is no evidence
on record to speak about the deceased and his son reaching the house
of the appellant or their stay in that house.
(ii) PW-1 was the only eye-witness according to the prosecution. He
being the son of the deceased is obviously an interested witness. His
evidence ought to have been scrutinized with greater care and
caution. Even otherwise, his evidence is not corroborated on material
aspects by the evidence of other witnesses. According to the
prosecution, PW--1 had gone to the house of Gyarasa (PW-3) on the
date of incident and returned to the house of the appellant at 11.00
p.m. but PW-3 in his evidence has stated that PW-1 left his house at
the time of sunset in the evening. It may also be noted here that PW-
3 did not support the prosecution case and he was treated hostile.
(iii) PW-2, Kamla, Chowkidar of the village, stated that when PW-1
and his brothers were coming to village Haider, he met them on the
way and told them that the appellant had killed the deceased and
they need not go further and should return and go to police station to
lodge the complaint. PW-2 has stated that he was told by PW-9
Ghuman Singh about the appellant killing the deceased but PW-9
Ghuman Singh does not support the case of the prosecution and the
statement of PW-2. He too was treated as hostile.
(iv) The axe alleged to have been used in the commission of offence,
said to have been recovered at the instance of the appellant, was not
produced before the Court and there was no occasion for the doctor
to confirm whether injuries of the nature found on the deceased
could be caused by such an axe.
(v) The conduct of PW-1, the only eye-witness, that too to the
part of the incident is highly unnatural and improbable. When
his father was being assaulted with axe on the neck and other
parts of the body, he does not make hue and cry; he does not try
to rescue; the appellant has only one hand; the PW-1 and his father
in the ordinary course would have over-powered him and it appears
doubtful whether the appellant could assault with his one hand
causing so many injuries on the body of the deceased in the manner
stated; PW-1 does not try to take the help of the people in village
Haider around the house of appellant; he ran to his village Miyan
Khedi and thereafter goes back with his brothers to Haider and
returns to his village again after PW-2, Kamla, told them about the
murder of their father. There was delay in lodging the complaint
also. These factors would render the very presence claimed of PW-1
at the place and time of occurrence itself doubtful and incredible.
6. Apart from material contradictions and omissions in the statements of
witnesses, these factors clearly indicate the serious infirmities and
improbabilities of the prosecution case giving rise to grave doubts as to the
involvement of the appellant in the commission of the offence.
7. The substantial portion of the judgment of the trial court is contained in
the narration of prosecution story and referring to the prosecution
witnesses. We hardly find evaluation, analysis or scrutiny of evidence in a
proper perspective objectively. With regard to serious infirmities pointed
out by the defence raising doubt of the prosecution case, the learned
Sessions Judge has simply stated that he did not agree with such
contentions. The trial court, in our view, was not right and justified in
lightly brushing aside the infirmities and improbabilities brought out from
the prosecution case, that too when the entire prosecution case rested on
sole eye-witness, who was interested being the son of the deceased; more
so in the absence of any corroboration of his evidence by other independent
evidence on material aspects of the prosecution case. It is unfortunate that
the High Court has simply endorsed the conviction and sentence passed by
the trial court without objectively and satisfactorily scrutinizing and
examining the evidence as a first court of appeal except narrating the
prosecution case and referring briefly to the evidence of few prosecution
witness. The reason recorded by the High Court is to be seen in para 10 of
the judgment which reads:-
"Thus in the absence of plausible defence by the appellant and the fact that
the deceased had stayed in the house of appellant and in the absence of the
explanation as to the cause of death, the appellant is liable to be convicted.
Deposition of PW-1 Puran inspires confidence and finds support from the
medical evidence.
8. In the light of what we have stated above, we find it difficult to agree
with the High Court as to how deposition of PW-1 Puran Singh
inspires confidence. As is evident from the above para, the High Court
instead of giving benefit of doubt to the appellant, placed the burden on the
defence and found that there was absence of plausible defence and
explanation by the appellant. The case of the prosecution should rest on
its strength not on the absence of explanation or plausible defence by
the accused.
9. Thus, we find it difficult to sustain the impugned judgment. In the
result, the impugned judgment affirming the judgment of the trial
court is set aside. The appellant is acquitted giving benefit of doubt. He
be set at liberty forthwith if he is not required in any other case. The
appeal is allowed accordingly.
Ratio of the judgment (Supra) makes it manifestly clear, that if apart from
material contradictions & omissions in the statements of witnesses which
factors clearly indicate the serious infirmities and improbabilities of the
prosecution case, the conduct of eyewitness in not saving their close relative
becomes highly un-natural, the prosecution story/case is unbelievable and the
conviction is unsustainable under law. Applying the ratio of judgment
(Supra) to the facts of the case in hand, it is clearly discernible from the
depositions of prosecution eyewitnesses viz; PWs 2,3,4&6 namely, Ashiq
Hussain, Mohd Ramzan, Muzaffar Ahmed & Noor Mohd that their evidence
suffers from material contradictions as none of them have supported the
prosecution version that appellant/convict alongwith other co-accused A-1,
A-2 is responsible for the murder of deceased Sher Mohd Rather within the
meaning of section 34 of IPC. None of the aforesaid eyewitnesses have
rendered cogent, trustworthy, reliable and credible evidence that A-3 Tariq
Mattoo appellant/convict participated in the commission of crime, as no
specific overt act has been attributed by the aforesaid eyewitnesses to the
appellant/convict in attacking/showering bullets upon deceased Sher Mohd
Rather killing him on spot. PWs 2,3,4&6 are the sons and brother of deceased
Sher Mohd Rather, and their depositions before the trial court depict, that
they have not raised any hue and cry, not tried or made any efforts to rescue
the deceased when he was being taken out from his house and was being
dragged in the street, have not tried to take help of the people in the village as
the place of occurrence was surrounded by the houses of the
villagers/neighbourers, the conduct of PWs 2,3,4&6 who are eyewitnesses to
the occurrence is highly un-natural and improbable, their depositions do not
inspire confidence rendering the impugned judgment unsustainable in the
eyes of law. In our view, the trial court was not right and justified in lightly
brushing aside the infirmities and improbabilities brought out from the
prosecution case that too when prosecution case rested on the eyewitnesses
account, and moreso, in absence of any corroboration of the evidence by
other independent evidence on material aspects of prosecution case. We find
it difficult to agree as to how the depositions of PWs 2,3,4&6 namely Ashiq
Hussain, Mohd Ramzan, Muzaffar Ahmed & Noor Mohd have inspired
confidence in the mind of the trial court.
12. The 3rd argument articulated by Ld. Counsel for appellant/convict is, "that the
medical evidence does not support or corroborate the eyewitness account, the
truth and falsehood are so inextricably mixed together that it is difficult to
separate them, which amounts to reconstructing a new case of prosecution".
PW-2 Ashiq Hussain (eyewitness) in his deposition before trial
court has only named accused Irfan and Jan Mohammad in the firing incident
upon his father and has exonerated/ruled out the presence of appellant Tariq
Mattoo on the scene of crime. PW-3 Mohd Ramzan (eyewitness) has led
contradictory evidence to that of PW-2 Ashiq Hussain by deposing that
Mohd Alyas, Jamat Ali & Ghulam Rasool asked Irfan Ali Jan Mohammad &
Tariq Mattoo to fire upon his father. PW-4 Muzaffar Ahmed (eyewitness) in
his evidence has not even named appellant Tariq Mattoo in firing incident.
PW-6 Noor Mohd is another eyewitness but has ruled out the firing by
appellant on the deceased. The eyewitness aforesaid have not led any cogent,
trustworthy and reliable evidence to the effect that appellant/convict fired
upon deceased Sher Mohd Rather and committed his murder. PW-9 Dr.
Nizam-ud-din Dar has conducted the postmortem of deceased Sher Mohd
Rather and has opined that death of deceased has been caused by
hemorrhagic shock by bullet injuries on chest and right iliac fossa, but has led
evidence that weapon of offence was not shown to him and he cannot say
what type of weapon was used in commission of offence. The medical
evidence is contradictory to the eyewitnesses‟s account as none of the
eyewitnesses have led trustworthy and cogent evidence that appellant fired
upon the deceased. PW-10 K.K. Sharma (the then SHO P/S Gandoh) in his
cross-examination has categorically stated, that houses of Asgar, Javed Butt,
Gul Mohd & Ghulam Hussain are located around the house of deceased, but
it is highly strange that the I.O has not recorded the statement of these
independent eyewitnesses, which casts doubt upon the creditworthiness and
trustworthiness of the prosecution story. Moreso, I.O has enquired about the
occurrence from Numberdar and Chowkidar, but has not cited them as
witnesses in the case which further casts serious doubt upon the prosecution
story. I.O has not seized the empty cartridges from the scene of crime and has
not even mentioned this fact in the site plan that the empty cartridges were
found on spot. It is apt to reiterate here, that the defect in the investigation by
itself cannot be ground for acquittal of the accused, however, it has to be seen
whether there are any lapses by the investigating officer and due to such
lapses any benefit should go to the accused. As per the prosecution story, it is
uncertain that which type of weapon has been used in the commission of
crime, although in the FIR it is specifically mentioned that accused were
armed with the deadly weapons but the type of weapon used for commission
of offence is a mystery. The weapon of assault has not been recovered by the
I.O at the time when appellant/accused was arrested and no explanation has
been offered by the I.O in his deposition before the court for non-recovery of
weapon of offence. Even the challan does not depict as to what type of
weapon was used by the assailants in killing the deceased. Law is well settled
that when prosecution has led direct, cogent, reliable and trustworthy
evidence to prove the prosecution case, non-recovery of weapon of offence is
not fatal to the prosecution [Chintakayala Kurmaiah Vs State of A.P, 2016(2)
ALD (Crl) 777]. However, in the case in hand, as the prosecution has not led
cogent, reliable and trustworthy evidence to substantiate the charges against
the accused, the non-recovery of weapon of offence is fatal for prosecution
and is a huge defect in the investigation which has caused a serious dent in
the prosecution case. The arguments urged by Ld. GA for the respondents
that even if investigation is faulty the perpetrators of ghastly crime cannot be
allowed to go scoot free, are meritless, as the prosecution in the case in hand
has failed to prove the guilt of accused and even the investigation has been
conducted in shoddy manner.
13. The 4th argument canvassed by Ld. Counsel for appellant/convict is, "that the
defence & prosecution evidence is to be treated on equal footing, in as much
as, DWs 1,2&3 Talab Hussain, Qutab Din and Abdul Rashid in their
depositions before the trial court have categorically adduced evidence that the
people assembled in the house of deceased and the family members of
deceased did not nominate appellant or other assailants in the firing incident
upon the deceased, the defence witnesses are entitled to equal treatment and
respect as that of prosecution witnesses, the defence witnesses have totally
demolished the prosecution story that appellant is responsible for murder of
the deceased, which makes the prosecution story highly tainted and doubtful,
and once doubt is created the benefit has to be attributed to the accused".
Hon‟ble Supreme Court in the case titled State of Haryan Vs.
Ram Singh [2002(1) R.C.R. (Criminal) 443] while acquitting the accused
held, "that the defence witnesses are entitled to equal treatment and equal
respect as that of prosecution witnesses, the issue of credibility and the
trustworthiness ought also to be attributed to the defence witnesses at par
with that of prosecution". Applying the ratio of judgment (Supra) to the facts
of the case in hand, it is unambiguously reiterated here, that three (3) defence
witnesses have been examined by the appellant/convict before the trial court
while leading his defence evidence. DW-1 Talab Hussain has led evidence to
the effect, that in July 2002 one day at 9/10pm firing incident occurred in
village Changa in which deceased Sher Mohd sustained bullet injury and
died, he reached in the house of deceased after the firing incident had
stopped, there were 20/25 people present in the house including the family
members of deceased and none nominated the assailants/appellant who fired
upon the deceased to have been involved in the firing in which deceased died.
DW-2 Qutab Din has putforth evidence before the trial court that about 10
years back at about 8/9pm he reached in the house of deceased on hearing
hue and cry on the day of occurrence and saw that the deceased was hit by
the bullet, on enquiry from family members of deceased he was told that
deceased had gone out to urinate and was hit by a bullet in the cross-firing.
DW-3 Abdul Rashid is relative of the deceased and has led evidence before
the trial court that the deceased told him by signs that fire came from the
direction where forces had laid a cordon.
It is apt to reiterate here, that the cumulative effect of the
evidence led by the defence witnesses lead us to irresistible conclusion that
appellant/convict has not been nominated by the people of the area including
the eyewitnesses viz; the family members of deceased involved in the firing
incident upon deceased Sher Mohd Rather. Be it noted, that the evidence
tendered by defence witnesses cannot always be termed as tainted one. In
light of the ratio of the judgment of "Ram Singh‟s Case" (Supra) the defence
witnesses viz; DW-1 Talab Hussain DW-2 Qutab Din & DW-3 Abdul
Rashid are entitled to equal treatment and respect to that of prosecution
witnesses. The issue of credibility and trustworthiness ought also to be
attributed to the defence witnesses aforesaid at par with that of prosecution.
We hold, that the defence witnesses aforesaid, have categorically ruled out
the involvement of appellant/convict in the commission of murder of
deceased Sher Mohd Rather.
14. We, on the basis of the aforesaid evidence, hold that there is no legal
evidence on record to prove that appellant/convict is the mastermind of
murder of deceased Sher Mohd Rather. The direct evidence/the
circumstances as relied upon by the prosecution are not strong enough
indicating the involvement of appellant/convict in the commission of crime
and all the circumstances are not compatible with the possibility of guilt of
the accused. The witnesses examined by the prosecution, have not been able
to putforth in their evidence a ring of truth, so as to inspire confidence in this
court. Evidence of prosecution witnesses, is therefore, qualitatively and
quantitatively, insufficient to bring nexus between appellant/convict and
commission of the offences indicted against him. This renders the entire story
of prosecution as incredible and unbelievable in the manner projected by the
prosecution. On proper assessment, evaluation and estimation of the evidence
adduced by the prosecution, the evidence appears to be weak, fragile, lacking
in credibility, does not prove connecting link between the accused and
commission of offences. It would be highly dangerous and hazardous to hold
the appellant/convict guilty of offences alleged against him on the basis of
weak, shaky and unacceptable evidence. The whole case of the prosecution,
therefore, becomes doubtful. For the foregoing reasons and discussion, we
are of the considered view, that prosecution has miserably failed to prove the
guilt of the appellant/convict beyond reasonable doubt for commission of
offences U/Ss 302/34 RPC r/w 7/27 Arms Act & 3 PSS Act. The criminal
conviction appeal, therefore, deserves to be allowed and the same is allowed.
Resultantly, the impugned judgment and order of conviction dated 04-06-
2014 rendered by the court of Ld. Sessions Judge Bhaderwah in file No.
25/Sessions titled State Vs Irfan Ali Code Babloo & Ors based on surmises,
assumptions and presumptions is unsustainable in the eyes of law and the
same is set aside/quashed. Appellant/convict Tariq Mattoo S/O Ghulam Nabi
Mattoo R/O Village Soti Gandoh Tehsil Bhalessa District Doda, who is lying
in Judicial custody in Central Jail Kot Bhalwal Jammu, is therefore, cleanly
acquitted of the charges leveled against him for commission of offences U/Ss
302/34 RPC r/w 7/27 Arms Act & 3 PSS Act, and shall forthwith be released
from the custody if not required in any other case. He shall stand discharged
from his bail and personal bonds. Seized case property shall be destroyed
after the period of appeal is over. Criminal conviction appeal is disposed of,
and after due compilation under rules, shall be consigned to record.
Confirmation Cr. Ref. dated 04.06.2014 stands answered. Record of the trial
court be sent back forthwith alongwith copy of the judgment for information
of the trial court.
(Mohan Lal) (Dhiraj Singh Thakur)
Jammu Judge Judge
23.05.2022
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
