State Th. Police Station Kokernag vs Parvaiz Ahmad Bhat And Others
2024 Latest Caselaw 247 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

State Th. Police Station Kokernag vs Parvaiz Ahmad Bhat And Others on 14 March, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                                              Sr. No. 09
                                                              Regular List
   IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR
                            CrlA (AD) No. 7/2019

State Th. Police Station Kokernag                                 ... Appellant(s)

Through:      Mr. Ab. Rashid Malik, Sr. AAG with
              Mr. Mohd Younis, Assisting Counsel
              Mr. Mubeen Wani, Dy. AG
                                      Vs.
Parvaiz Ahmad Bhat and others                                    ...Respondent(s)

Through:      Mr. Molvi Aijaz, Advocate with
              Mr. Mohd Yahaya, Advocate
CORAM:

HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
                                   ORDER

14.03.2024

1. The present appeal has been filed by the State which is aggrieved by the

judgment of acquittal recorded by the learned Trial Court in case FIR No.

84/1996 of Police Station Kokernag for an offence under Section 302 RPC,

whereby respondents were acquitted by the judgment dated 05.09.2018.

The State has preferred the appeal thus aggrieved.

2. In brief, the prosecution's case is that on 04.11.1996 Police Station

Kokernag, received a source of information that a dead body of one

Mansoor Ahmad Ganie S/o Ghulam Qadir Ganie R/o Kokernag, is lying in

the Fisheries Lodge, Kokernag murdered by unknown persons. Upon

receipt of information, the aforementioned FIR was registered for an

offence under Section 302 RPC and investigation was set in motion. During

the course of investigation, the usual steps were taken like preparation of

site map, taking custody of the dead body, seizure memo etc were prepared

and the body was handed over to the hospital for the conduct of autopsy.

      The wearing apparels of the deceased were seized against which    a seizure


           CrlA (AD) No. 07/2019                             Page 1 ofauthenticity

memo was prepared in this regard, thereafter, the dead boy was handed over

to the next of kin.

3. The learned Trial Court after recording the evidence of the prosecution

witnesses comes to the finding that there were four sets of evidence. The

first set of evidence relates to the theory of last seen and the relevant

witnesses of PW1, PW2 & PW3. Second is the eye witness testimony of

PW4. Third is the medical evidence of PW14, and lastly the police

witnesses who investigated the case.

4. At the outset, the learned Judge dealt with the purported eye witness

testimony. PW20 was the policeman who recorded the 161 statement of eye

witness who was PW4. The Court consider the Section 161 Cr.P.C.

statement of PW4 and observes that it was not recorded at the time of

occurrence in the year 1996 but that the PW4's 161 statement was recorded

in the year 2002 after the passage of six years. It refers to the statement of

PW4 and says that PW4 and another employee of Fisheries Department by

the name of Abdul Rehman Dar saw the deceased entering the camp at

Kokernag in the night. He further says that he and Abdul Rehman Dar

heard cries coming from the hut in which the Ikhwanies were residing and

the next morning he saw the dead body of the deceased. He further states in

the 161 statement that the Ikhwanies killed the deceased. The learned Trial

Court has then gone through the court testimony of PW4. PW4 was

declared hostile as he did not support the case of the prosecution. The Trial

Court, thereafter assuming that 161 statement was also true, records its

appreciation of the statement by stating that even in the 161 statement, PW4

does not state that it was any of the respondents herein who had committed

the murder or that the deceased was last seen in the company of the

respondents herein. Thus, learned the Trial Court comes to conclusion that

the PW4 is not an eye witness to the incident. We do not find any fault of

perversity in this finding by the learned Trial Court. Arif Hameed

5. On the last seen theory, the learned Trial Court records the witnesses of

PW1, PW2 and PW3 who are the Father, Brother and Mother respectively

of the deceased. The father in his court testimony says that the accused No.

1 came in the evening to the house of the deceased and insisted on the

deceased accompanying him to the CRPF Camp, the deceased who was

initially reluctant succumbed to the alleged pressure brought to bear upon

him by the accused No. 1. PW1 further says that the accused No. 1 had a

gun over a shoulder and that he had given his identity card to the deceased

and then taken the deceased with him. The learned Trial Court has taken

into consideration two documents prepared and given by PW1 to the SHO

of Police Station Kokernag and another to the MLA of Kokernag. In the

representation given to the SHO Kokernag, PW1 takes the names of the

respondents as the persons who have come to his house in the evening and

who had taken away his son forcibly. However, in the representation to the

MLA, PW1 does not give details of anyone who had come to his house and

says that his son has gone missing. The representation to the MLA is

forwarded to the SSP Kokernag. The learned Trial Court has dealt with the

discrepancy between the representation given to the SHO, Kokernag and

the one given to the MLA, Kokernag. The exhibits clearly show that in one

(representation to SHO, Kokernag) the names of the respondents are

discharged however, the representation to the MLA does not disclose the

names of any of the accused persons.

6. Under the circumstances, if the representation given to the SHO, Kokernag

was first in point of time between the two documents and the names of the

respondents were mentioned in that, logic suggests that the names were

given only because it was known to the scribe of that document which is

PW1. If that be the case, then the absence of those names in the

representation given to the MLA subsequently is conspicuous by the

absence of the names of the respondents herein. Conversely, if the Arif Hameed

CrlA (AD) No. 07/2019 Page 3 ofauthenticity 6 of this document

representation given to the MLA, Kokernag was first in point of time which

did not disclose the names of the respondents herein then the question

arises that between the making of that representation and the second one to

the SHO, Kokernag who gave the information to PW1 with regard to the

respondents being the perpetrators of the crime? The prosecution has failed

to clarify this discrepancy before the learned Trial Court, therefore, the

learned Trial Court has rightly disbelieved the statements given by the

PW1.

7. The learned counsel for the Union Territory has argued that the recovery of

the identity card of accused No.1 from the apparel worn by the deceased, is

a corroborative piece of evidence which gives credence to the statement of

PW1 that he had seen the accused No. 1 giving his identity card to the

deceased. He further refers to the statements of PW1, PW2 & PW3 and

submits that they corroborate each other as all the three witnesses being the

Father, Brother and Mother of the deceased mention that the respondents

were the persons who came and took away their son/brother from the house

in the evening. As regards this contention put forthwith by the learned

counsel for the Union Territory, it is relevant to mention here that in their

cross examination, the witnesses have disowned that part of their 161

statement when confronted by it, in which the police had recorded that the

accused No. 1 had handed over his identity card given to the deceased. This

has been done as their statement before the police was that accused No. 1

gave the identity card to the deceased and then went away and the deceased

went separately to the CRPF Camp at Kokernag.

8. Before the learned Trial Court, in order to corroborate the statement of

PW1 that the deceased was forcibly taken from their home by the

respondents, they have disowned that part of their 161 statement, wherein

they had stated before the police that the identity card was given by the

accused No. 1 to the deceased telling him that while entering theArifCamp,

the

CrlA (AD) No. 07/2019 Page 4 ofauthenticity 6 of this document

CRPF stops him, the deceased should show the identity card of the accused

No.1 to the personnel and enter the Camp. If that had been the

prosecution's case, it would put doubt on the statement of PW1 who says

that the deceased did not follow the accused No. 1 later on but was taken

away by accused No. 1 from his home.

9. The learned counsel for the Union Territory further refers to the burn

injuries on the body of the deceased with a broad reference to the post

mortem report and the statement of one of the witnesses (PW2) who says he

saw cigarette burn marks on the body of the deceased. However, it is

pertinent to mention here that the post mortem report does not disclose any

cigarette burn injuries as an external injury on the body of the deceased.

10. Learned counsel for the Union Territory has also emphasized much on the

recovery of the identity card from the apparel worn by the deceased. There

is doubt as far as this recovery is concerned. Learned counsel for the

respondents has drawn our attention to the statements of PW8 and PW18

who are police witnesses. Both of them says that the seizure of identity card

allegedly belonging to the accused No. 1 was prepared in the year 2000 i.e.

four years after the incident when the identity card was brought to the

police station allegedly by PW2. Similar is the statement by PW18 both the

statements have been made the prosecution witnesses in their examination-

in-chief. Neither of them has been declared hostile and cross examined by

the prosecutor and, therefore, their statements of facts are binding on the

prosecution. This statement made by the PW8 and PW18 demolishes the

substratum of the recovery of the identity card of A1 from the apparel

wound by the deceased way back in the year 1996.

11.Having gone through the order passed by the learned Trial Court, we are of

the opinion that there is no perversity in the Trial Court order and on the

other hand we are of the further opinion that the marshalling and

appreciation of evidence by the learned Trial Court is just and proper

and,

CrlA (AD) No. 07/2019 Page 5 ofauthenticity 6 of this document

therefore, there is no necessity to interfere with the order passed by the

learned Trial Court. The appeal is, accordingly, dismissed.

  (MOKSHA KHAJURIA KAZMI)                       (ATUL SREEDHARAN)
        JUDGE                                         JUDGE

SRINAGAR:
14.03.2024
ARIF


             Whether the order is speaking:      Yes/No
             Whether the order is reportable:    Yes/No