State Of J&K vs Manzoor Ahmed
2022 Latest Caselaw 1399 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                                Reserved on 27.09.2022
                                               Pronounced on 07.10.2022


                                                CRAA No. 118/2013(O&M)

      State of J&K                                      ...Appellant/Petitioner(s)


                   Through :-          Mr. Amit Gupta, AAG
                v/s    <




      Manzoor Ahmed                                            .....Respondent (s)
      't




                   Through :-          Mr. M. A. Bhat, Advocate


     Coram:         HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                    HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                          JUDGMENT

Per Oswal-J

1. This appeal has been preferred against the judgment dated 24.01.2013

passed by the court of 1st Additional Sessions Judge, Jammu (hereinafter to

be referred as the trial court) in file No. 140/Sessions, titled, State of J&K vs

Manzoor Ahmed, whereby the respondent has been acquitted of the charge

for commission of offences under sections 302, 343 and 201 RPC, arising

out of FIR No. 158/2007 of Police Station, Nowabad, Jammu.

2. The judgement has been impugned on the ground that the learned trial court

has failed to appreciate the prosecution evidence in its right perspective and

despite the fact that the prosecution had established the case against the

respondent by adducing documentary as well as oral evidence but still the

respondent was acquitted by the learned trial court.

3. Mr. Amit Gupta, learned AAG appearing for the appellant vehemently

argued that the prosecution has proved all the incriminating circumstances

against the respondent but the learned trial court has failed to appreciate the

evidence brought on record by the prosecution and has erroneously acquitted

the respondent.

4. On the contrary, Mr. M. A. Bhat learned counsel for the respondent-accused

vehemently argued that the material witnesses examined by the prosecution

had not at all supported the prosecution case, therefore, there is no infirmity

in the judgment of the acquittal recorded by the learned trial court.

5. Heard and perused the record.

6. Brief facts, which are necessary for disposal of the present appeal, are that

on 19.09.2007, complainant-Sanjay Kumar made an oral report at Police

Station, Nowabad that on 14.09.2007 at 10.30 PM, a person who disclosed

his name as Manzoor Ahmed, respondent herein along with one lady whom

he alleged to be his wife came to his hotel and booked room No. 21. The

respondent entered his name, parentage and telephone number in his own

handwriting in the visitors register and also recorded his age as 35 years and

that of his wife as 32 years. The respondent used to leave in the morning at

9/10 AM and return in the afternoon at 2 to 2.30 PM. The respondent while

leaving used to lock the room from outside and they thought that it was only

to protect the lady against any unwanted advances. On that day, the

respondent left early in the morning at about 4/5 AM after locking the room

from outside. At about 1.30 to 2 PM, the employees of the hotel knocked the

door to enquire from the lady but finding no response, they peeped in

through a hole in the door and found her lying on the bed without any

movement. On receipt of this information, then ASI, Kuldeep Khajuria

accompanied by other Police personnel rushed to the spot and found the door

of the room locked from outside. The photographs were taken and other

respectable inhabitants and owner of the hotel were also called on spot and

the door was knocked with force. However, when there was no response.

Then photograph of the lock was taken and the lock was cut. On opening the

room, the lady was found dead and on her search, nothing was recovered.

The photographs of the dead body were taken and dead body was shifted to

the hospital for post mortem. During enquiry, it came to fore that the mobile

No. 9419466127 entered in the register belonged to the accused-respondent.

On 22.09.2007, PWs Hilal Ahmed Bhat, Abdul Rehman and Rukhsana Bhat

responded after seeing the photograph of lady published in the newspaper

and identified her as Nasima Akhtar. They further disclosed that the

respondent, who was Head Constable in Armed Police, came in contact with

the deceased about 3-4 years back. The accused enticed the lady and created

differences between the deceased and her husband. The respondent

developed physical contacts with the deceased and also contracted Nikah

with her secretly. The deceased left her husband and two sons and started

residing with the respondent along with her minor daughter Rukhsana at

Tankipora, Srinagar. It also transpired that on the instigation of the accused,

deceased sold her parental house for Rs. 3 lacs and accused retained that

amount. The deceased had been demanding the said money back for the last

four months for constructing house for her children but the accused did not

agree and their relations got strained. The accused extended threats to the

deceased from time to time to do away with her life and also used to beat

her. Four months back, the accused mixed something in the mango juice,

which he made the deceased to drink and then put her in Gypsy and took her

to Kakapora in a state of unconsciousness, where he threw her out and

attempted to kill her by running over under the Gypsy. The deceased wanted

to lodge report but the accused apologized and convinced her not to lodge

the report. On 14.09.2007, the accused with a criminal intention to kill the

deceased, brought her to Jammu on the plea that they were invited for party

at the residence of his friend at Kishtwar but the accused killed her at a hotel

in Jammu. FIR under sections 302,201 RPC was registered and after

conclusion of the investigation, the charge-sheet was filed against the

respondent for commission of offences under section 302, 343 and 201 RPC.

The charge was framed against the respondent on 15.01.2008. As the

accused did not plead guilty, the prosecution was directed to lead evidence.

The prosecution had cited as many as 24 witnesses out of which, the

prosecution has examined 22 witnesses.

7. In an appeal against the acquittal, it is to be examined as to whether the

opinion framed by the learned trial court while acquitting the respondent is

possible and if opinion is found to be possible one, then no interference is

required with the acquittal recorded by the learned trial court merely on the

basis that on same set of evidence, the other view is possible. In order to

examine as to whether the judgment of the learned trial court can be

sustained on the parameters as mentioned above, it is necessary to have brief

resume of the prosecution evidence as well as the defence evidence.

8. PW-1 Sanjay Kumar (Manager of Hotel Mahindra) stated that on 14.09.2007

at about 10 PM, he was working at the counter of the hotel when a person

who disclosed his name as Manzoor Ahmed, came along with a lady, whom

he stated to be his wife. He showed them room No. 21 and settled the

charges at Rs. 150/- per day. The customer made an entry in the register at

serial no. 487 and he obtained his signatures also in the relevant column and

the entries like, name, address, mobile number and age were made by that

person himself. However, the other columns were filled by him. The said

Manzoor Ahmed stayed in that room for 4/5 days. The said Manzoor Ahmed

used to leave at about 8/9 AM and return at about 1-2 PM and during that

period, Manzoor used to lock the room from outside. He further stated that

on being asked by the hotel employees, Manzoor told that who would be

responsible if somebody intruded upon the privacy of his wife as people

used to take liquor etc. in the hotel. Next day, the sweeper peeped inside, as

the door was broken from upper side and saw that the lady inside was lying

without any movement and so he was called. They knocked at the door,

however, did not get any response. So they called the contractor of the hotel

Mr. Romesh, who also strongly knocked the door but there was no response

and thereafter, they informed the Police. He went to the Police Station at

about 12 noon for lodging the report. The Police recorded the report in daily

diary and accompanied him to the hotel. However, SHO instructed him to

wait up to 2 PM till Manzoor Ahmed returned but he did not return and SHO

came to the hotel at about 2.00 PM. The Police knocked the door and finding

no response, the lock was broken. The lady was found lying dead and was

covered with a blanket. The Police searched the room and took the dead

body in their possession but before that a photographer was called to take the

photographs of the dead body. The Police also seized the entry register vide

seizure memo (ExPW-4). He further stated that the accused present in the

court was not the said Manzoor Ahmed, who stayed at the hotel and he could

not identify that person also. During cross-examination, he stated that he saw

the accused in the court on previous date only and not before that. He never

saw the accused in Police custody. During re-examination, he stated that he

was asked to identify Manzoor Ahmed when Police arrested him and

brought to Police Station and he identified him to be the same person, who

had murdered that lady. He stated that the person looked like the accused

whom he identified in Police custody but he could not say with certainty

whether the accused was the same person or not. He further stated that his

earlier statement that accused present in the court was not that person is

correct and that he had made false statement on that day that accused

resembled that person.

9. PW-2 Hilal Ahmed Bhat stated that three years back, his mother had

approached Sh. Ali Mohd. Sagar for help and accused was the PSO with

him. The accused enticed his mother to sell her house. His mother sold the

house for Rs. 3 lacs and started living with the accused along with his

younger sister Rukhsana after contracting small Nikah. The accused assured

his mother that he would construct a new house for her and left to his native

village for bringing money. The accused sent divorce deed but his mother

did not accept the same. After some days accused retuned and apologized

and thereafter started living with his mother again. On Sunday, accused

brought a Government Gypsy and took his mother and sister to Pahalgam.

On the way, the accused made them drink mango juice in which he had

mixed something which made them unconscious. The accused dropped his

mother and sister on the way and then ran the gypsy over his mother as a

result of which, both of her legs and arm were fractured. His mother was

shifted to the Police Station by the inhabitants of Kakpora locality as the

accused fled away and Police shifted them to the hospital. Later, the accused

apologized and took them to his place and got her treated. Thereafter, the

accused shifted his mother to Tankipora as he did not remain at a particular

place for long time. A friend of the accused from Kishtwar visited him and

later invited him telephonically to his place. His sister insisted to join them

but accused threatened them that he would kill his mother in case she

insisted and thereafter his sister came to his place. After 1to 2 days, he had a

telephonic conversation with his mother, who told that she was brought to

Jammu instead of Kishtwar. After 2-3 days, the owner of service station,

where he worked, came and told that his mother had expired at Hotel

Mahindra Jammu and advised him to contact Police Station, Khanyar. He

along with his sister went to Police Station,Khanyar and were advised to

reach Police Station, Nowabad. The Police got the dead body of his mother

identified, which was kept in mortuary room and afterwards, they performed

her last rites. He handed over the photographs, copy of Nikah-nama to the

Police, which were seized vide seizure memo (ExPW-1). He proved the

contents of the seizure memo of clothes of the deceased, memo of

identification and memo of receipt of dead body.During cross-examination,

he stated that the earlier incident of taking the deceased to Pahalgam and

then running gypsy over his mother was narrated by the deceased and his

sister. He had lodged a report about the eloping of his mother with the

accused with Police Station, Nehru Market. He stated that at the time of sale

of the house, his mother was staying with his father and not with the

accused.

10. PW-3 Rukhsana (daughter of the deceased) stated that the deceased was her

mother and she knew the accused. The accused had contracted marriage with

her mother and after marriage they were putting up at Ram Bagh. She also

used to stay with them and was studying in UKG at that time. Her mother

sold a house at Nowpora at the instance of the accused. Earlier the accused

used to pay Rs.100 to her mother as daily expenses. Her mother used to

demand her Rs. 3 lacs for construction of house. However, the accused did

not return the said money and instead threatened to do away with her life in

case she demanded the money. Once the accused brought a white coloured

Gypsy and was taking them towards Pahalgam when he offered mango juice,

in which something was mixed and they became unconscious. The accused

took them to a village and dumped them there and then passed the vehicle

over her mother who was unconscious at that time. Her mother sustained

injuries on both of her legs and she was taken to the hospital. Thereafter, the

accused fled away. On the same day the accused came and persuaded her

mother not to lodge a report with Police and thereafter, they started residing

together. Her brother used to visit them and thereafter they shifted to a

rented accommodation at Tankipora. A friend of accused along with his wife

visited them and thereafter invited the accused and her mother to Kishtwar

telephonically. Her mother wanted to take her along but the accused did not

agree, so she went to the place of her father. The accused and her mother left

for Kishtwar. However, on Monday, when she had telephonic conversation

with her mother she was told that they were at Jammu. The Police from

Jammu through Police of Police Station, Khanyar informed telephonically

that the dead body of her mother was lying at Hotel Mahindra. During cross-

examination, she stated that she had come to Jammu along with accused and

her mother earlier. They stayed at the quarter of Mr. Sagar for about one

month at Shahidi Chowk. They were taken to the hospital where dead body

was lying. Her statement was not recorded on that day but she was examined

on Sunday after the burial of her mother. Her mother did not visit her

father's house after she started living with the accused but she used to visit

her for 2-3 days. The house sold was given to her mother by her

grandmother.

11. PW-4 Abdul Rahman Bhat stated that the accused used to call his wife to his

office and during that period accused proposed to marry her and also

suggested to sell her house on the plea that he would buy a new house for

her. The accused sold the house for about 2.5 lacs but his wife was having

only fifty-sixty thousand Rupees, which were also taken by the accused. The

accused enticed his wife and they started living together and his son Hilal

Ahmed and daughter Rukhsana were also staying with them initially but his

son returned afterwards. The accused brought the deceased to Jammu on the

pretext of attending a party at Kishtwar and his daughter Rukhsana was left

with him. He was informed by Police of Police Station, Khanyar that the

dead body of his wife was lying at Jammu. He along with his son Hilal

Ahmed and daughter Rukhsana came to Jammu and went to Police Station,

at Gumat. They were taken to the hospital mortuary room where they

identified the deceased and thereafter, they buried the dead body at Gujjar

Nagar burial ground. He admitted the contents of memo of seizure of

photographs and copy of Nikah Nama (ExPW-1), memo of seizure of

clothes of deceased (ExPW-2), memo of identification (ExPW-3) and memo

of receipt (ExPW-4). During cross-examination, he stated that he was told

by his daughter that her mother had gone to Jammu. He was told by his

children that the deceased had contracted Nikah with the accused secretly

but he did not initiate any proceedings.

12. PW-5 ASI, Onkar Nath Sharma proved the seizure memo (ExPW-5).

13. PW-6 Kuldeep Raj, ASI stated that he initiated the proceedings under

section 174 Cr.P.C. He further stated that PW Sanjay lodged report at the

Police Station and the dead body was taken into custody, the blanket and the

lock and the entries register was also seized. On 22.09.2007, Abdul Rahman,

the husband of the deceased along with her son and daughter came to the

Police Station after seeing a poster of deceased in the newspaper. He

recorded the statements of witnesses under section 175 Cr.P.C.During cross-

examination, he stated that SHO handed over inquest proceedings to him

orally and the Magistrate was not informed. He neither sent any report nor

the statements of witnesses recorded under section 175 Cr.P.C. to the

Magistrate.

14. PW-7 Suresh Kumar turned hostile and during cross examination by the

prosecution, no incriminating material could be extracted from him against

the respondent.

15. PW-8 Sampuran Chand proved the seizure memo of the dead body (ExPW-

8) and seizure memo of blanket (ExPW-7). He denied the seizure memo of

lock and entry register but he admitted his signatures upon the same.

16. PW-9 Sohan Lal stated that he and PW Mohan Lal used to bring the

customer from the bus stand. Sanjay told him that Room No. 21 was booked

by one Manzoor Ahmed and a lady was also accompanying him. He further

stated that Manzoor Ahmed was not seen by him.

17. PW-10 Mohan Lal has stated that the room was locked from outside and

lady was lying on the bed. He further stated that Police did not bring the

accused in the hotel for identification. During cross examination, he stated

that he did not see the couple, who stayed in room No. 21 but only heard

about them from PW Sanjay.

18. PW-11 Romesh Singh stated that he had taken hotel Mahindra on lease and

Sanjay Kumar, Mohan Lal and Sohan Lal were employed by him in that

hotel. PW Sanjay Kumar was the manager of the hotel. Entries of all the

visitors were made in the register kept at the hotel. About a year back, a

Kashmiri couple stayed at room No. 21, as he was told by his Manager.

When he was told by Sanjay that the room was locked and a lady was inside,

he sent Sanjay to the Police Station and police came on spot. When the

person did not turn up for two hours the police broke open the lock and SHO

was also on spot at that time. In cross examination, he stated that the lock

was not sealed.

19. PW-12 Mushtaq Ahmed turned hostile and during cross examination, no

incriminating material could be extracted against the respondent.

20. PW-13 Mohinder Singh stated that he was the owner of the hotel and had

given the hotel to one Baldev Singh. In September, 2007, he received a

telephonic message from PW Sanjay that room No. 21 was not opening as it

was locked and also narrated the name of the person who was staying there.

The Manager and Romesh Singh reported the matter to the Police and he

also came on spot. The room No. 21 was locked from outside and Police

broke open the lock and dead body of a lady was found inside. The Police

seized the dead body.

21. PW-14 Daleep Singh proved the site plan of the room (P-14).

22. PW-15 Gurmeet Singh stated that he lifted nine photographs on the spot,

those were marked as A to I.

23. Dr. Sangeeta Choudhary stated that she conducted the post-mortem and

proved the post mortem report (ExTP-16) and as per FSL report, the death of

the deceased was due to asphyxia as a result of smothering.

24. PW-17 Rakesh Hangloo has proved his report (ExTP-17) with regard to the

comparison of the specimen hand writing and the questioned handwriting.

25. PW-18 S. K. Razdan proved the certificate (ExPW SK). He stated that on

various chemical and chromatographic examinations, it was found that none

of the exhibits revealed the presence of any poison.

26. PW-19 Abdul Majeed Bakshi stated that the accused was posted as Munshi,

Security Wing Srinagar. On 11.09.2007, accused went on one day's leave

and he made an entry to that effect in the daily diary, but the accused did not

return thereafter.

27. PW-20 Nazma stated that the accused was known to her as he had remained

as tenant and he was in Police as she was told. The accused was staying

alone. However, a lady and a gentleman visited him once or twice and

accused told that they were his relations. The accused remained as a tenant

for one month and then left the room after locking it. Thereafter, the accused

did not return and instead the brother of accused opened the lock and took

away the articles and vacated the room.

28. PW-22 Raja Ji has proved the report that was given pursuant to the letter in

the name of General Manager from SP City North concerning the

information about mobile Nos. 9419466127 and 9906515779. During cross

examination, he stated that he does not know who issued the call details of

the aforesaid mobile numbers on record. It was true that call details were

correct as per the original record.

29. PW-24 Kulbir Handa stated that he investigated the FIR bearing No.

158/2007 for commission of offences under sections 302, 343 RPC. He has

narrated about the investigation in his deposition and after conclusion of the

investigation he found accused liable for the commission of offences under

section 302, 343 and 201 RPC and he filed the charge-sheet for judicial

determination. During cross examination, he stated that Sanjay Kumar

lodged the report at the Police Station at about 1.30 PM. The inquest

proceedings were entrusted to ASI, Kuldeep Khajuria by him but no report

was given in that regard. He further stated that he did not obtain any order

from the Magistrate for initiating the inquest proceedings. It was wrong that

the accused was detained and kept at Police Station with effect from

19.09.2007. PW Sanjay Kumar identified the accused. PWs Hilal Ahmed,

Abdul Rahman and Rukhsana were not the eye witnesses. However, they

had disclosed that the accused had attempted on the life of deceased earlier

also at Srinagar. He did not get any test identification parade conducted. It

was wrong that the accused was not the person who stayed with the deceased

at the hotel as was suggested. It is true that he had not prepared any memo of

personal search of accused at the time of his arrest. He got the accused

identified from the employees of the hotel, namely, Sanjay Kumar, Sohan

Lal and Meshu whom he called at the Police Station. It is wrong that he had

kept the witnesses Sanjay Kumar and Sohan Lal at Police Station for eight

days.

30. The respondent has also led evidence in defence. DW-1 Inayat Gowhar

stated that in September, 2007, he saw the accused visiting his paddy crop

from 12th to 19th Sept. 2007. He stated that the accused was married and the

name of his wife was Nazia, who was still residing with the accused and

they had three children. The accused was a gentleman and he had not seen

him with the company of any other lady. During cross examination, he stated

that the deceased Nasima Akhtar was not known to him.

31. DW-2 Mushtaq Ahmed Sofi stated that the accused remained working in the

fields and on 20thSeptember 2007, he received telephonic message that

accused was taken into custody by Police. After 2/3 days, he was informed

that the accused was taken into custody by the Police of Police Station,

Nowabad in connection with murder of a lady. The accused was married and

thename of his wife was Nazia and they had three children. The accused had

not contracted second marriage but was seen with his wife. He had neither

seen the deceased nor did she ever reside with the accused. During cross

examination, he stated that the accused was relieved from duty with Ali

Mohd Sagar about a month earlier and was transferred to security line

Zewan, Srinagar. The accused told him on 11.09.2007 that he had taken

leave and was at home. It is wrong that the accused was seen with the

deceased at Tankipora along with her daughter. He was not aware whether

the accused had sold the house of deceased at Tankipora for Rs. 3 lacs. He

told SHO, Police Station, Nowabad that his brother was at home during

those days but latter directed him to depose before the Court. On being

questioned by Court, he stated that he did not visit his house from 11 th to

19thSeptember, 2007 as he did not get any leave.

32. The whole case of the prosecution is based upon the circumstantial evidence

as there is no direct evidence with regard to the occurrence. In cases of

circumstantial evidence, it is the bounden duty of the prosecution to establish

complete chain of circumstances so as to establish all the incriminating

circumstances against the accused beyond any reasonable doubt that it was

the accused only who committed the offence and further to negate all other

hypothesis consistent with the innocence of the accused.

33. The prosecution has examined PWs Sanjay Kumar, Mohan Lal, Sohan Lal,

Ramesh Singh, Mushtaq Ahmed and Sardar Mohinder Singh to prove the

factum of the deceased last seen with the respondent. PW Sanjay Kumar

stated that he does not know the accused present in the court and later on

stated that the accused resembles with the person who was identified by him

during investigation. Later PW Sanjay Kumar stated that accused was not

that person as was deposed by him in his earlier statement and his earlier

statement was wrong. Thus this witness cannot be relied upon as he was

making different statements at different stages during his examination before

the Court. Other PWs Mohan Lal, Sohan Lal, Ramesh Singh and Mushtaq

Ahmed have also not identified the accused. In view of above statements, the

incriminating circumstance of deceased's last seen with respondent remains

unproved.

34. The prosecution also relied upon the statement of handwriting expert Sh

Rakesh Hangloo. Though he has proved that the specimen handwritings tally

with questioned handwritings but the prosecution has not examined the

Naib-Tehsildar to establish the specimen handwritings to be those of

accused. As such, the report with regard to the handwritings of the deceased

is also of no help to the prosecution.

35. The prosecution no doubt has examined PWs Rukhsana, Hilal Ahmed Bhat

to prove the past conduct of the respondent and their statements may raise

suspicion about the involvement of the respondent in the commission of

offence but as already noted above there is no evidence on record so as to

warrant a conviction of the respondent. It is settled law that the suspicion

however strong may be, cannot take the place of proof. It is advantageous to

take note of the observations made by Apex court in Ram Niwas v. State of

Haryana, 2022 SCC OnLine SC 1007, which reads as under:

"26. This Court has held that there has to be a chain of evidence so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. It has been held that the circumstances should be of a conclusive nature and tendency. This Court has held that the circumstances should exclude every possible hypothesis except the one to be proved. It has been held that the accused 'must be' and not merely 'may be' guilty before a Court can convict.

27.It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."

36. This Court has examined the judgement passed by the learned trial Court and

the learned trial Court has rightly come to the conclusion that the

prosecution has miserably failed to prove the incriminating circumstances

against the respondent. The conclusion drawn by the trial court cannot be

said to be inconsistent to the evidence led by the prosecution. We do not find

any infirmity in the prosecution case and as such, the judgement of the trial

court is upheld. The appeal is dismissed being devoid of merits.

37. Record of the trial could be sent back forthwith.

                                            (RAJESH SEKHRI) (RAJNESH OSWAL)
                                                 JUDGE            JUDGE
JAMMU
07.10.2022
Rakesh
                                   Whether the order is speaking:     Yes/No
                                   Whether the order is reportable:   Yes/No