State Of J&K vs Hafizullah And Others on 29 September, 2022

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Jammu & Kashmir High Court

State Of J&K vs Hafizullah And Others on 29 September, 2022

1. This acquittal appeal has been directed against judgment dated 29.07.2011 passed by learned Additional Sessions Judge, Doda (hereafter referred to as 'trial court'), in case titled State Vs. Hafizullah and others, in File No.04/Sessions, arising out of FIR No.19/2005, of Police Station Doda, for offences under Sections 302/307 of the Ranbir Penal Code 1989 ('RPC' for short) and 7/27 of Indian Arms Act ('I.A. Act' for short), vide which respondent No.1 has been acquitted of the charges.

2. At the very outset, it is made clear that in view of the statement made by Mr. V. Bakshi, the then Dy. AG, who had appeared on behalf appellant, the State has preferred the instant appeal against respondent No.1 only as is evident from order passed by this Court on 16.03.2012. Registry to update the cause title.

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3. The case of the prosecution, shorn of irrelevant details, is that on 10.02.2005, Hoshiar Singh-Numberdar S/o Duni Chand R/o Dungru, Tehsil Doda, lodged a written report in Police Station Doda, inter alia, alleging that he received an information at Prem Nagar, that some unknown armed men had opened indiscriminate firing on Mohd. Yousaf S/o Noora R/o Shoonsh and his companion, as a result whereof said Mohd. Yousuf died on the spot and his companion was injured. On the receipt of this report, FIR No.19/2005 for offences under Sections 302/307 RPC and 7/27 I.A. Act came to be registered and investigation came into vogue.

4. During investigation, the investigating officer completed the requisite legal formalities including the preparation of site plan. The place of occurrence was photographed through Crime Branch, dead body of Mohd. Yousuf was taken into custody and shifted to the hospital for post mortem. Injury Form of the injured Gh. Qadir S/o Mohd. Ramzan R/o Drubeel Kishtwar was prepared, and he was shifted to the District Hospital Doda. After post mortem of the deceased, the dead body was handed over to his legal heirs for last rites against proper receipt. Investigating officer recorded statements of the witnesses under Section 161 Cr.P.C.

5. It surfaced during investigation that while deceased Mohd. Yousuf and injured Gh. Qadir were on their way to Prem Nagar from village Dongru, they came across three militants namely Hafizullah S/o Abdul Aziz Peer R/o Dhara (respondent herein), Kuldeep Kumar S/o Neel Kanth R/o Zihand Dhara, and Javed Ahmed S/o Mohd. Assadullah R/o Dhara, Tehsil Doda. One of the militants, accused Hafiz Ullah armed with AK 47 rifle opened indiscriminate firing on both of them on the premise that they were informers of the security forces and were required to be punished. As a 3 CRAA No.9900017/2011 result Mohd. Yousuf died on the spot. In the meantime, other militants/accused Nos.2 & 3 (since absconding) also opened fire and Ghulam Qadir sustained serious injuries and fell unconscious on the spot. Having thought that both of them had died, militants/accused fled away. The investigating officer concluded that accused persons belonging to a banned militant outfit Hizab-ul-Mujahidin, had killed the deceased and inflicted serious injuries to Ghulam Qadir. Accordingly, final report was presented in the court of learned Chief Judicial Magistrate, Doda in the presence of accused Hafiz Ullah, where from it was committed to the learned trial Court and since rest of the accused persons were absconding after the commission of the crime, they were proceeded against under Section 512 Cr.P.C. vide order dated 24.08.2005.

6. The respondent was charged by the trial court for the alleged offences under Sections 302/307 RPC and 7/27 I.A. Act, whereby he pleaded innocence and claimed trial. Consequently, prosecution was directed to lead evidence and prosecution has examined nine witnesses. After the conclusion of prosecution evidence, the accused was examined in terms of Section 342 Cr.P.C., whereby he denied the incriminating evidence against him and preferred to lead defence evidence. Accused also examined a couple of witnesses in defence. Learned trial court after scrutinizing and analyzing the rival evidence on record has come to the conclusion that prosecution has failed to establish guilt of the respondent beyond reasonable shadow of doubt. Accordingly, the respondent was acquitted of the charges.

7. The appellant-State has assailed the impugned judgment of acquittal, inter alia, on the grounds that the learned trial court has failed to appreciate the 4 CRAA No.9900017/2011 evidence in right perspective. According to the appellant, learned trial court has fallen into a serious error of law, as the prosecution evidence does not suffer from any serious infirmity or contradiction.

8. Having heard the rival contentions and perused the file, we have given our thoughtful consideration to the facts and circumstances attending the present case as also the law governing the field.

9. Learned counsel for the appellant has reiterated the grounds urged in the memo of appeal. Respondent No.1, appearing in person, has submitted that there is no illegality in the impugned judgment and the present appeal is liable to be dismissed.

10. In order to appreciate the controversy at hand, it shall be apt to give a brief account of the prosecution evidence, which is as follows:

PW Hoshiar Singh, though admitted that he heard the firing while sitting home, but reflected his ignorance about the occurrence. He was declared hostile by the prosecution and prosecution has failed to extract anything incriminating in cross-examination against the accused. He has admitted contents of the complaint EXPW-HS lodged by him, though denied his signatures.

PW Irshad Ahmed is real brother of the deceased Mohd. Yousaf. He has stated that on 10.02.2005 while he was cutting wood, the deceased and injured Gh. Qadir were surrounded by the accused persons on a thoroughfare adjoining his field. The accused were shouting and when he came in front of them, accused Hafiz Ullah opened bullet burst on the deceased Mohd. Yousaf, as a result he died on the spot. He has further stated that Gh. Qadir sustained injuries as accused Kuldeep Kumar opened 5 CRAA No.9900017/2011 fire at him. Injured Gh. Qadir raised an alarm and meanwhile he along with some villagers assembled on the spot. He clarified that he himself had seen the accused while firing. The injured was rushed to Doda hospital for treatment. The police came to the spot at 2.30 p.m., took custody of dead body of the deceased, prepared custody memo of the dead body. Dead body was shifted to hospital for post mortem and after post mortem, the dead body was handed over to him against a receipt. He has admitted the receipt EXPW-1A as also the custody memo of the dead body EXPW-1A(i). Police recorded his statement. On cross-examination, he has deposed that the occurrence took place in village Dhongru and it is a distance of half a kilometer between Shoonsh and Dhongru village. He has a piece of land at village Dhongru. Occurrence took place at 12 a.m. in the presence of entire village. Some people witnessed the occurrence from their fields and 300-400 people had seen the occurrence. The respectables including Numberdar Hoshiar Singh (the complainant), Mohd. Khalil, Abdul Majid and Mohd. Yousaf Sheikh had also seen the occurrence. He has denied that he went to the spot on hearing the noise only and stated that he was already present there. He also denied that the deceased had died before he reached the spot and stated that he had seen the militants firing. However, it has been recorded in his statement under Section 161 Cr.P.C. that he had raised hue and cry from a distance and all the three militants fled away. He goes on to state that he lodged a verbal report with the police at Prem Nagar and Numberdar Hoshiar Singh accompanied him. Accused Kuldeep Kumar was known to him for the last one year and accused Hafiz Ullah was known to him since his childhood. He further stated that his two brothers were killed by the militants five 6 CRAA No.9900017/2011 years ago as his three brothers had animosity with the militants, therefore, they were killed by them. He also apprehends threat to his life at the hands of militants. The police recovered 32-33 empties from the spot. He reported the matter to the police at 12.30 p.m. and the police reached the spot at about 2.30 p.m. He has denied that occurrence took place at 2.30 p.m. as mentioned in his statement.

PW Mohd. Yousaf Sheikh is a hearsay witness as he deposed that about 2½ years ago Mohd. Yousaf Butt was killed by the militants in their village at Dhongru and he was informed by the people that there was firing in the village but he did not hear any noise of firing. When he was going to his house, he spotted Mohd. Yousaf lying dead on the way and also saw Ghulam Qadir in injured condition. When he enquired about the occurrence, he was told by injured Gh. Qadir that when they were going home, 2-4 persons appeared from opposite direction and opened indiscriminate firing upon them. The injured revealed that one of the bullets hit his leg and Mohd. Yousaf died on the spot. During cross examination, he has clarified that nobody could identify the assailants. PW Ghulam Qadir is the injured and has stated that in the year 2005 while he was returning home, all of a sudden, an armed party, came on the way and opened indiscriminate firing, as a result, he sustained injuries and Mohd. Yousaf died on the spot. He has also stated that though he saw the persons firing at them, but he could not identify them. During cross examination, he has clearly stated that accused was not in the company of assailants.

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PW Lal Chand has stated that about 4-5 years ago, he heard a sound of firing at village Dhongru and he along with rest of the villagers went to the spot, where Mohd. Yousaf was lying dead and one person was injured. On cross examination, he reflected his ignorance about the assailant. PW Ghulam Hassan has also toed the same line as he stated that on 10.02.2005 while on way to his home he saw deceased Mohd. Yousaf lying dead at Prem Nagar. The dead body was shifted to the hospital and after post mortem it was handed over to the brother of the deceased Irshad Ahmed. He identified his signatures on the custody memo of the dead body as also on the receipt of the dead body and on cross examination, he has stated that dead body was not taken into custody by the police in his presence.

PW Abdul Gani is witness to the receipt of the dead body. On cross examination, he has stated that the brother of the deceased Irshad Ahmed was not present in his house on the day of occurrence as he had gone to Kishtwar and he straightway came to Doda Hospital from Kishtwar. Irshad Ahmed enquired from the persons present in the hospital as to where and how the occurrence had taken place and nobody was aware about the occurrence as also bout the assailants.

PW Dr. M. A. Tariq has conducted autopsy on the corpse of Mohd. Yousaf and found following injuries on his person:-

"1. Frontal bone was fractured (skull), membranes of skull were ruptured, brain substance was lacerated.

2. Left lung ruptured, full of blood.

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3. Multiple wound of exit on the right frontal area, multiple wounds of entrance on the left side of chest, right knee fractured."

In his opinion, the deceased had died due to cardiao respiratory arrest due to injuries to vital organs like lung and head. Death was within twelve (12) hours before the post mortem. He has admitted the post mortem report EXPW-MA. He also examined the injured Gh. Qadir and found following injuries on his person:-

"1. Wound of entry ½ inch in diameter on the right side of knee joint. Wound of exit on the lateral side of knee joint (right).

2. Multiple superficial bruises all over the body."

In his opinion, injury No.1 was grievous in nature and injury No.2 was simple in nature caused within 2 to 6 hours at the time of examination. He has admitted the medical certificate EXPW-1.

In cross examination, he has stated that he has not mentioned the time of post-mortem in his report. He has stated that the nature of injuries mentioned in the post mortem are caused only by fire arm, though he has not mentioned the same in his report. He has also admitted that he has not mentioned about the number of bullet injuries sustained by the deceased but there were more than four bullet injuries. He has failed to state the exact distance between the deceased and the person firing bullets as also the type of fire arm used stating that he is not the ballistic expert. Neither he has mentioned the time of examination in the certificate nor mentioned date & time of issuance of certificate.

PW Ghulam Hassan HC is investigating officer. He has stated that in the year 2005, he was posted at Police Station Doda. Investigation of the 9 CRAA No.9900017/2011 present case FIR No.19/2005 was entrusted to him. During investigation, on 10.02.2005 he went to the spot, took custody of the dead body, prepared the site plan and recorded the statements of the witnesses under Section 161 Cr.P.C. The deceased was shifted to Doda hospital for post mortem and the injured was also shifted to the Doda hospital for treatment. After post mortem, the dead body of the deceased was handed over to the family for last rites. As per his investigation, the offences under Sections 302/307 RPC and 7/27 I.A. Act were proved against the accused. He has admitted the site plan EXPW-GH, custody memo of the dead body EXPW-1A and receipt memo of dead body EXPW-1A(i). In cross examination, he has stated that the report with respect to occurrence was lodged by Numberdar Hoshiar Singh S/o Duni Chand and it was mentioned in the report that the occurrence had been committed by some unknown terrorists. FIR was registered at 4 p.m. on the day of occurrence and he proceeded to the spot on the same day. No empty was recovered from the spot. He did not seize the blood stained soil as the same had been destroyed due to presence of people at the scene of occurrence. The injured also reflected his ignorance about the persons who committed the crime because they had been attacked all of a sudden and the assailants fled away immediately after the commission of the crime. The injured had failed to identify the assailants. He did not get the accused identified through the injured, but the accused was known to the eye witnesses and the names of the said eye witnesses are Kesar Singh, Irshad Ahmed, Mohd. Yousaf and Lal Chand. No weapon of offence was recovered in the present case and clothes of the deceased were also not seized. Neither he recorded his departure nor arrival in the CD File.

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11. This is the crux of prosecution evidence.

12. As already stated, since the accused denied the incriminating evidence against him in his statement under Section 342 Cr.P.C. and preferred to enter the defence. Therefore, a brief reference of the defence evidence is also indispensable. It is as follow:-

DW Ghulam Ahmed Butt has stated that in the year 2005 while he was working in his flour mill, he heard the firing, but since he was frightened he went to his house. After about half an hour he heard the cries 'Bachao Bachao'. He went to the road and saw a person injured, who was not known to him. When he enquired from said injured, he told him that two masked men had opened fire. He had also seen the dead body lying on the spot, who was not known to him. He sent his son to the house of Master Dharam Chand, who had got a landline phone, from where his son informed Numberdar Hoshiar Singh about the incident. Thereafter, police of Prem Nagar was informed about the occurrence and after about half an hour, people started looking from their houses. The deceased was a resident of village Dehrote, which is around 3 ½ kilometres away from his village. The brother of the deceased came to the spot two hours after the occurrence and thereafter wife of the deceased also arrived at the scene of occurrence. Neither the deceased nor his brother had any land in village Dhongru. In cross examination, he has stated that he had not seen anybody firing.

DW Ghulam Hassan has stated that about four years ago a firing occurrence took place in his village, about 30-40 feet away from his house on a thoroughfare, near the house of a retired army person namely Ghulam 11 CRAA No.9900017/2011 Mohd. Butt and said Ghulam Mohd. Butt had raised an alarm and asked the people to keep their children inside their houses because there was cross firing. After half an hour, when firing stopped, he went to the spot and saw Mohd. Yousaf Butt lying dead on the spot. Ghulam Mohd. was already there. Villagers and police personnel had also arrived. None of the family members of the deceased was there. Later the brother of the deceased namely Irshad Ahmed came to the spot along with police at about 4 p.m. It could not be learnt as to who had killed the deceased. Besides the deceased, one injured was also there on the spot, who had told that it could not be known that where the firing had come from. The deceased as also the injured were shifted to the hospital. In cross examination, he has stated that brother of the deceased PW Irshad Ahmed had no land in village Dhongru or Shoonsh, but had a piece of land in village Dehrote. He had not seen anybody firing.

13. This is all about the defence evidence.

14. Before we advert to analyze the prosecution evidence, it shall be apt to recall that it is the prosecution case that on 10.02.2005 PW Hoshiar Singh, Numberdar had lodged a written report that some unknown armed men opened indiscriminate firing on the deceased and the injured, as a result whereof deceased Mohd. Yousaf died on the spot and PW Ghulam Qadir sustained injuries. On the completion of investigation, it has been concluded by the investigating agency that the occurrence had been committed by three militants namely Hafiz Ullah (respondent herein), Kuldeep Kumar and Javid Ahmed (both proclaimed offenders) belonging to banned terrorist outfit Hizabul Mujahidin, as a result whereof, they 12 CRAA No.9900017/2011 killed the deceased Mohd. Yousaf and inflicted serious injuries to the injured Ghulam Qadir.

15. In order to substantiate the charges, the prosecution has examined nine witnesses out of eleven listed and PWs Ghulam Qadir, Kesar Singh, Irshad Ahmed, Mohd Yousaf Sheikh and Lal Chand have been cited as eye witnesses to the occurrence. Rest of the witnesses are formal witnesses and PW Hoshiar Singh is the complainant. Out of the five eye witnesses cited by the prosecution, PW Kesar Singh has been given up by the prosecution on the ground that he had already turned hostile. Out of remaining four eye witnesses, PWs Mohd. Yousaf Sheikh and Lal Chand reflected their ignorance about the assailants and they turned to be hearsay witnesses as they have deposed that they reached the spot after the occurrence was over. Significantly they have not been declared hostile by the prosecution. Now out of two eye witnesses PWs Ghulam Qadir being injured appears to be the most natural witness to the whole episode, but has also reflected his ignorance about the persons, who opened indiscriminate firing at him and the deceased. The injured Ghulam Qadir has deposed that all of a sudden he and the deceased fell prey to indiscriminate firing at the hands of some armed persons, as a result, Mohd. Yousaf died on the spot and he was injured. He has made it clear, during deposition in the court, that though he had seen the persons firing upon them, but he failed to identify the assailants and he further made it clear during cross examination by the defence that accused were not among the persons, who fired upon them.

16. In fact, the injured PW Ghulam Qadir also clarified that he had seen the respondent for the first time in the Court. Consequently, the star witness of the prosecution, who appears to be the most natural witness as he 13 CRAA No.9900017/2011 happens to be injured in the case, has not deposed anything against the respondent.

17. Now the entire prosecution case is perched on the testimonial potency of PW Irshad Ahmed, real brother of the deceased. PW Irshad Ahmed claims to be an eye witness to the whole occurrence and has stated that he was present near the scene of occurrence. PW Irshad Ahmed stated that he had seen accused firing on the deceased Mohd. Yousaf and injured Ghulam Qadir. If the prosecution evidence is carefully analysed, it reveals that PW Irshad Aahmed hails from village Shoonsh and the alleged occurrence has taken place in village Dhongru. The brother of the deceased has made an endeavour to establish his presence at the scene of crime on the premise that he had a piece of land near the place of occurrence and while he was cutting wood in his land near the place of occurrence, he had seen the militants including the respondent firing upon the deceased and the injured. However, the statement of Irshad Ahmed has not only been belied by the defence witnesses but also by rest of the prosecution witnesses including the complainant. None of the prosecution witnesses has confirmed the presence of PW Irshad Ahmed on the place of occurrence and none of the prosecution witnesses has stated that Irshad Ahmed has any piece of land near the place of occurrence. As a matter of fact, PW Abdul Gani has clearly deposed in cross examination that PW Irshad Ahmed had enquired about the occurrence from him in the hospital. The statement of PW Abdul Gani lends credence to the testimony of both DWs Ghulam Hassan and Gh. Mohd. Butt that brother of the deceased Irshad Ahmed and wife of the deceased had come to the spot after the occurrence was over. The testimony of PW Irshad Ahmed, who claims to be an eye 14 CRAA No.9900017/2011 witness, indeed appears to be exaggerated and further stands falsified by the FIR lodged in the present case as also the statement of PW Hoshiar Singh, complainant, in support thereof.

18. It may be recalled that an open FIR has been lodged in the present case that some unknown armed men opened indiscriminate firing upon the deceased and the injured. PW Hoshiar Singh, the complainant, has also made a statement in consonance to what was mentioned in the complaint, on the basis of which, FIR came to be registered. PW Hoshiar Singh has not stated that PW Irshad Ahmed accompanied him at the time, written complaint was made to the police. PW Irshad Ahmed has stated that he had made a verbal report to the police, whereas written complaint has been filed by PW Numberdar Hoshiar Singh. Though as per the record, PW Irshad Ahmed, the brother of the deceased-Mohd Yousaf, accompanied the complainant at the time of lodging FIR, however, had he witnessed the occurrence, the names of accused persons must have been mentioned in the written report as also the FIR. The investigating officer Ghulam Hussan HC has failed to explain these material discrepancies in the prosecution evidence and therefore, not only the presence of PW Irshad Ahmed at the scene of occurrence is doubtful, his testimony being replete with embellishments, does not inspire confidence, thus, liable to be rejected.

19. Having regard to what has been discussed hereinabove, we do not find any illegality muchless perversity in the impugned judgment and find ourselves in agreement with learned trial court that prosecution has failed to establish the guilt of the respondent beyond reasonable shadow of doubt.

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20. Considered thus, the present appeal, being devoid of any merit, is dismissed and the impugned judgment is upheld. Record of the trial court be returned forthwith.

                                    (RAJESH SEKHRI)                    (RAJNESH OSWAL)
                                       JUDGE                                 JUDGE
JAMMU
29.09.2022
Narinder
                                    Whether the order is speaking?           Yes/No
                                    Whether the order is reportable?         Yes/No

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