Jammu & Kashmir High Court
Mohd. Ishaq Age 50 Years vs State Of J&K on 3 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No. 21
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- CRA No. 2/2018
c/w
CONF No. 2/2017
Mohd. Ishaq Age 50 years ...Appellant(s)/Petitioner(s)
S/o Sh. Rahim
R/o Village Blahar
Tehsil Hiranagar District Kathua
Through: Mr. S.C. Sharma, Advocate
Vs.
State of J&K ...Respondent(s)
Through Advocate General
Through: Mr. Ravinder Gupta, AAG.
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
O R D E R(ORAL)
03.10.2024
The present appeal has been preferred by the appellant against
the judgment of conviction dated 13.12.2016 passed in FIR No.
55/2013 of Police Station, Rajbagh for an offence under Sections 302
RPC and 30 of the Arms Act. The case of the prosecution has been
based on the initial complaint given by PW-1 (Shama), who is the
wife of the deceased who stated that she is a resident of Village
Blahar, Tehsil Hiranagar, and that the appellant Ishaq is the elder
brother of her husband and was residing with his wife, adjacent to the
house of the deceased. According to PW-1, the motive for the murder
was a pre-existing enmity of the appellant with her husband for a long
time, as another brother of the deceased, who had passed away earlier,
and whose wife the appellant had married but was not paying
maintenance to her, on account of which the wife of the appellant
allegedly left him along with her children came to reside with the
witness PW-1 (Shama) and the deceased, due to which the appellant
was inimically disposed towards the deceased.
02. The date of the incident according to the prosecution is 12.03.2013,
where PW-1 has stated in the FIR and her written report on the basis
of which the FIR was drawn that the appellant, armed with a gun
came to her residence, at which time the deceased was not at home as
he had gone towards "Adda" with the cattle. In the FIR, the witness
has stated that the appellant was furious and left to the place where the
deceased was supposed to be. As PW-1 suspected that there was
something amiss, she is stated to have followed the appellant and
there she saw her husband proceeding towards Village Blahar along
with the cattle. She says that the deceased was fired upon by the
appellant in her presence due to which the deceased fell on the
ground.
03. Two other witnesses Anzar and Imtiaz were also present on the spot,
as per the version given by the PW-1 to the police. On the basis of her
written complaint, the FIR was registered at 12:05 PM on 12.03.2013
of an incident that had taken place at 10:30 AM, the same day. Copy
of the FIR was received in the Court of the Munsif Magistrate,
Hiranagar at 4:30 PM as per the endorsement on the FIR. The FIR has
been exhibited as EXP-23/4. The appellant is the sole named accused
in the FIR.
04. In the course of the trial, PW-1, PW-2 & PW-3 all turned hostile. PW-
1 the wife of the deceased says that she was there at the time of the
occurrence, but she does not know who shot her husband. Anzar and
Imtiaz stated that they arrived at the scene of occurrence hearing the
gun shot and found the deceased lying on the ground. Thus, there was
a departure before the learned trial Court from the statements in the
FIR and in the 164-A Cr.PC statements. Notwithstanding the
witnesses turning hostile, the learned trial Court has convicted the
appellant as hereinabove.
05. As regards the findings of the learned trial Court on questions of law,
this Court is in respectful agreement with the same. The view of the
learned trial Court that notwithstanding the eyewitnesses having
turned hostile, that part of the statement of the hostile witness can still
be taken into consideration, which bears consistency with statements
of other witnesses, and which have been corroborated by forensic or
material evidences is a view that this Court also concurs with.
Likewise also, this Court agrees with the opinion of the learned trial
Court that witnesses turning hostile does not mean that the case of the
prosecution ought to be thrown out and that the Court must look for
such evidence, which is credible on the basis of which the conviction,
may be based.
06. On facts, this Court also concurs with the view of the Ld. trial Court
that based upon the statements of the alleged eyewitnesses, the
inference can be arrived at that the deceased died of a gunshot injury.
This also bears corroboration from the post-mortem report where two
pellets were recovered from the body of the deceased. The ballistic
report, which shall be referred to, also discloses that the two greyish
pellets were stated to have been fired from a 12-bore weapon and that
the cartridge that was found inside the weapon allegedly seized from
the appellant and the test fired cartridge were both fired from the same
gun. As regards the ballistic report, it is pertinent to mention here that
the pellets which are fired from a twelve bore weapon are incapable of
comparison, as a twelve bore firearm is a smooth bore weapon, which
will not leave any marks of rifling on a pellet. However, the same can
still be identified on the basis of the impression left by the firing pin
on the percussion cap of the cartridges. The FSL report does not
mention how the expert arrived at the opinion that the cartridge used
in the incident and the test fired cartridge were both fired from the
same 12-bore fire. It has no reference to the cartridges being placed
under a comparison microscope and what the expert observed in
relation to the impressions left by the firing pin on the percussion cap.
In this regard, reference to Section 51 of the Evidence Act would be
essential, as the opinion of the expert requires him to describe the
experiments/tests conducted by him to arrive at the opinion/finding,
which is given in the report. However, the same is conspicuous by its
absence in the FSL report which is EXT-P17. Therefore, the same
non-compliant of Section 51 of the Evidence Act and so, much
weightage cannot be and placed on the same.
07. As regards the finding of the learned trial Court with regard to the
witnesses turning hostile with specific reference to PW-1, where the
learned trial Court at internal page 55 of the judgment has held that
PW-1 may have turned hostile, as the accused/appellant was her
brother-in-law and on account of familiar relations may have turned
hostile. With the highest regard to the observations of the learned trial
Court, this Court finds the same to be speculative in nature on account
of absence/statement on any other witness that PW-1 had turned
hostile on account of this reason.
08. The learned trial Court has also accepted that the gunshot was fired
from the licensed weapon of the accused only on the ground that the
accused did not dispute the same. In this regard, it is necessary for this
Court to observe that the weapon license book of the accused was
never produced or exhibited before the learned trial Court and neither
was the report given by the Executive Magistrate relating to the
license issued to the appellant, exhibited before the learned trial Court.
It would only be the licensed book which would reveal as to what
firearm and ammunition was purchased by the appellant, as the same
would have to be entered in the licensed book by the arms dealer from
whom the weapon and the ammunition was purchased. The non-
production of the weapon license book belonging to the appellant
before the learned trial Court leads to an inference that no proof was
placed before the learned trial Court to establish that the weapon
allegedly seized at the behest of the appellant was his licensed
weapon.
09. Coming to the crux of this case is the sequence which follows the
arrest, the disclosure memorandum under Section 27 of the Evidence
Act and the seizure of the firearm. The arrest memo (which has not
been exhibited before the learned trial Court) registers the time of
arrest as 9:30 PM of 12.03.2013. However, undisputedly the 27
memorandum and the seizure memo are prepared before the arrest of
the appellant.
10. Learned counsel for the Union Territory with specific reference to the
PW-23 (Gurnam Singh Choudhary), who is the Investigating Officer
of this case, has taken this Court through those relevant portions
where these issues have been posed before the Investigating Officer.
The Investigating Officer states that the arrest was made before the
arrest memorandum was prepared. According to him, the appellant
was arrested at little after 5:00 PM of 12.03.2013. However, their
memorandum of arrest was prepared at the police station where the
time has inadvertently been given as 9:30 PM. The said contention
does not appeal to this Court and the same cannot be dismissed as a
mere error for the simple reason that the same is fatal to the
prosecution's case. Nothing prevented the police from correcting it,
giving the appropriate time of arrest, and endorsing it with the
signature of the Investigating Officer about the corrected time before
the charge sheet was filed.
11. Under such circumstances, the fact remains that the appellant was
arrested much after the preparation of the 27 memorandum and the
seizure being executed. As regards the 27 memorandum, the
incriminating part of the 27 memorandum cannot be taken into
account and it must be stated in favour of the learned trial Court that it
has not taken the incriminating part of the 27 memorandum in arriving
at the finding of guilt against the appellant. It has, however, relied
upon the witnesses to the seizure memorandum only to prove that the
appellant had allegedly disclosed in their presence about his firearm
and where he had hidden it.
12. However, another aspect that comes out from the memorandum under
Section 27 and the seizure memo is that both these documents did not
give the name of the accused. In other words, both these documents
records "State Versus _____." This strongly raises the suspicion that
the FIR was antedated, as the FIR discloses the name of the appellant
as the sole accused who had committed the crime. If the disclosure
statement and the seizure memo was prepared after the FIR was
registered, they should have necessarily borne the name of the
accused. More so, the memorandum u/s. 27 of the Evidence Act and
the seizure memo should necessarily have borne the name of the
appellant because according to the case of the prosecution, the same
were prepared after the accused/appellant was in their custody and the
same were prepared on the basis of the alleged confession/disclosure
made by the appellant.
13. This Court is thus of the view that the eyewitnesses having turned
hostile, the identity of the appellant as the accused is under a cloud of
doubt. The subsequent documents that have been prepared by the
police with regard to his 27 memorandum and the seizure
memorandum, go to reflect that the same have been made before the
appellant was arrested.
14. A question of law posed itself to this Court with regard to un-
exhibited documents. In this case, the arrest memo is not exhibited
before the learned trial Court. The other document that has not been
exhibited is the report from the Executive Magistrate, which discloses
that a particular arms license number /license was issued to the
appellant herein. Thus, there are two documents which are not
exhibited, one in favour of the appellant and the other against the
appellant. The question that arose before this Court is that how to deal
with the same. All the documents that are produced by the prosecution
in the charge sheet is presumed to be admitted by the prosecution.
However, if the accused, at the stage of admission and denial of
documents u/s. 294 Cr.P.C admitted any document filed by the
prosecution along with the chargesheet then, those documents, even if
not exhibited (as are not required under Section 294 Cr.PC), can still
be used against the accused. In this particular case, the arrest memo is
in favour of the accused, which shows that he was arrested in 9:30 PM
and is a document of the prosecution accompanying the charge sheet.
The same, even if not exhibited can be considered in favour of the
accused. Holding otherwise would lead to a situation where the
prosecution may refrain from exhibiting those documents which may
be in favour of the accused though filed along with the chargesheet
and later claim that the same cannot be considered by the Court, as the
same were not exhibited. That would lead to a miscarriage of justice.
15. As regards the document which is issued by the Executive Magistrate
relating to the license, the same has never been admitted by the
accused under Section 294 Cr. PC and, therefore, the same cannot be
considered against the accused as the same was never exhibited in the
course of the trial.
16. In view of what has been argued and considered by this Court
hereinabove, we find that the prosecution has not been able to prove
the case against the appellant beyond reasonable doubt and, therefore,
the appeal succeeds. The impugned judgment of conviction is set
aside.
17. The appellant is acquitted, and he shall be released forthwith, if not
convicted in any other case. The appeal stands disposed of along with
CONF No. 2/2017.
(SANJAY DHAR) (ATUL SREEDHARAN)
JUDGE JUDGE
JAMMU
03.10.2024
Mihul
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
