Jammu & Kashmir High Court
Mansha Bi vs . State Of J&K And Others on 12 April, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CRMC No.178/2014
Date of order: 12.04.2019
Mansha Bi Vs. State of J&K and others
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing counsel:
For Petitioner (s) : Mr. R. P. Sharma, Advocate.
For Respondent (s) : Mr. Aseem Sawhney, AAG.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A Cr.P.C, petitioner seeks quashing of judgment dated 17.10.2006 passed by the learned Sessions Judge, Poonch, in case titled, State vs Pritam Singh and anr. in file No.34/Sessions, with a consequential order of re-trial in accordance with law.
2. The brief facts of the case are that petitioner is the mother of the deceased, Riaz Ahmed, who was killed by the Army personnel, namely, Rfn Subash Singh No.13750912-Y 14 JAK Rifles on the instigation of civilians Pritam Singh and Sardool Singh on 14.09.1994. FIR No. 169/94 for commission of offences under Sections 304/109 RPC was registered against Rfn Subash Singh No.13750912-Y 14 JAK Rifles, Sardool Singh S/o Lachman Singh and Pritam Singh S/o Attar Singh, both residents of village Darra Dullian, on the complaint of Wazir Mohd S/o Kayam Din R/o Village, Darra Dullian. On 14.09.94 it was reported to Police of Police Station, Poonch, that at about 5 p.m. Riaz Ahmed was scaling the heights of LKG to fetch buffaloes and the accused persons, namely, Pritam Singh and Sardool Singh on the basis CRMC No. 178/2014 Page 1 of 10 of past rivalry informed the Army headquarter LKG that an armed militant has been detected who is going to run away, where upon jawan of JAK rifles and G.R at the instigation of the aforesaid accused persons started firing and a bullet hit Riaz Ahmed who was brought to the Military Hospital, Poonch where he succumbed to his injuries. Thereupon the Police registered the aforesaid FIR and started investigation. The accused, namely, Pritam Singh and Sardool Singh were arrested on 15.09.94. The Police presented challan against the aforesaid two civilian accused persons and stated in the challan that the Army personnel were not available and after making thorough investigation appropriate action will be taken against them. The case was committed to the Court of Sessions Judge, Poonch, where upon a direction under Section 173(8) of Cr.P.C was given to the police to investigate the matter further in order to find out the involvement of Army personnel. After completing the investigation a fresh challan was presented before the committal Court against the aforesaid accused persons along with one Army personnel Subash Singh.
3. That the Army exercised the option to try Subash Singh in Summary Court Martial, so the challan against the accused namely Pritam Singh and Sardool Singh for commission of offence under Section 304/109 RPC was committed to the Court of Sessions.
4. The Army convened Summary Court Martial to try the accused Subash Singh and recorded the finding of not guilty of the charges against said accused Subash Singh, vide its verdict dated 13th May 2002. The verdict of the Summary Court Martial is being challenged separately in writ petition against the accused Subash Singh in the case titled Mansha Bi Vs. UOI & Ors.
5. That the learned Sessions Judge, Poonch, acquitted the accused Pritam Singh and Sardool Singh vide judgment dated 17.10.2006. The CRMC No. 178/2014 Page 2 of 10 petitioner challenged the judgment passed by the learned Sessions Judge, Poonch, amongst others, on the following grounds:-
"(a) That Ld Sessions Judge has acquitted the accused mainly on the ground that the fate of the army man Subash Singh who was tried by Court Martial is not known. In the absence of any such information the court cannot hold that accused are guilty of abetting the death of the deceased at the hands of the army person Subash Singh.
(b) That the Ld Judge was not powerless to find out the fate of the case tried by the Army in Court Martial proceedings.
Making it an excuse to acquit the accused was neither proper nor just in the eyes of law. It amounted to denial of justice and made the trial vitiated by an abuse of process of law. The judgment is thus rendered illegal on account of erroneous reasoning. It constituted legal mala fides and legal malice.
(c) That the impugned order is based on improper exercise of jurisdiction. Failure of the court below to appreciate the law and facts has resulted in violation of fundamentals of constitutionalism of the criminal justice delivery system. It vitiated the trial and the impugned judgment. Every trial in a court of law is a voyage to the path in search of truth about the guilt or otherwise of the accused. The trial thus was neither fair nor in accordance with law.
(d) That the statement of one of the prosecution witnesses namely Mustaq Ahmed was not appreciated in the proper perspective expected of trial court of Sessions. It has caused a failure of justice.
(e) That Pritam Singh has died and the trial/accusation stood abated against him.
(f) That the husband of petitioner namely Wazir Mohammad has died. She is illiterate, poor and aged widow. She was not supplied the copy of Court Martial proceedings despite making request to the army authorities.
(g) That on getting the copy of the judgment of Ld. Sessions Judge on 17.12.12 after consulting counsel at Jammu she submitted a request to the C.O, 14 JAK Rifle and Judge Advocate, JAG Branch Northern Command C/o 56 APO for supply of judgment/order passed by Hon'ble Court Martial regarding trial of accused Rifleman Subash Singh in case State v/s Subash Singh and Ors, offence under Section 304 RPC P/S Poonch. The copy was not supplied. Ultimately she filed writ petition before the Hon'ble High Court and under the orders of this Hon'ble Court passed in OWP No. 1571/13 titled Mansha Bi v/s UOI &Ors, a direction was issued to the CRMC No. 178/2014 Page 3 of 10 respondents to provide to the petitioner copy with in a period of 4 weeks vide order dated 18.11.13. The copy was made available only last week as such the petitioner is submitting the petition. In the peculiar facts and circumstances of the case the petitioner submits that her petition be considered in the interest of justice for grant of appropriate relief.
(h) That the trial court was vested with powers to summon material witnesses under Section 540 of Cr.P.C and Section 165 of the Evidence Act at the appropriate and relevant stages for evaluating the entire evidence. By allowing the trial to be conducted unfairly the offenders were made to escape to be brought to justice. The complainant victims has suffered denial of justice. The acquittal of the accused by the trial court is unmerited, based on tailored investigation, unprincipled prosecutor and perfunctory trial. It is no acquittal in the eyes of law. It lacks sanctity and credibility that can be attached to so called findings expected of a trial of court of Sessions. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decision of courts - coram non judis and non est. It calls for interference in the interest of justice.
(i) That under Section 126 of the Army Act, the criminal court having jurisdiction has power to seek reference of the case to the Central Government in a case of the nature involving the Army personnel and civilians when the commission of offence was made with their joint involvement so as to determine the question before which court the proceedings are to be instituted. Since the trial of Summary Court Martial was a nonest in the eyes of law, the conclusion of trial by Ld. Sessions Judge, Poonch in the manner it was done was illegal. It has resulted in failure of justice. In the circumstances the petitioner is entitled to the relief claimed for the sake of justice."
6. I have heard counsel and gone through the impugned order of Sessions Judge under Challenge.
7. The relevant para of impugned judgment dated 17.10.2006 reads as under:-
"The Ld. Defence counsel argued that the charge was not required to be framed against the accused as prima facie there was no case made out as no case was forth coming from the documents submitted under Section 173 Cr.P.C on merits he submitted that prosecution has failed to prove the charge against the accused. In this regard he pointed out the draw backs, infirmities and contradictions in the evidence of the witnesses examined by the prosecution. He also relied upon CRMC No. 178/2014 Page 4 of 10 the statement of defence witness Mohd Azim and requested to acquit the accused who have suffered a lot since the institution of the case in the year 1994.
To the contrary the Ld. PP submitted that after the charge was framed against the accused they participated in the trial without assailing the charge framed against them and now at this stage they cannot be heard saying that prima facie case was not made out against the accused. So far merit of the case is concerned the Ld. PP argued that there is sufficient evidence to prove that accused had instigated army persons Subash Singh to fire upon deceased Riaz Ahmed and his companion Mushtaq Ahmed who were not militants to the knowledge of the accused.
So far challan is concerned, it no where makes reference that during investigation it was establish that accused had instigated the army who shot at the deceased and his companion. Instead it is mentioned in the challan that accused Sardool Singh got suspicious when he saw two persons running in suspicious circumstances. He did not himself inform the army and it was accused Pritam Singh who informed the army about the two persons running in suspicious circumstances. It is also mentioned in the challan that army asked the running deceased and his companion to stop but they paid no heed whereupon the army got more suspicious and after firing some gun shots in the air had directly fired upon the running deceased person who did not stop although his companion stopped.
In view of the facts mentioned in the challan itself the arguments of Ld. Defence counsel gains a weight. After going through the statements recorded by police during investigation it is indicated that army had told the villagers that whenever they see any persons in suspicious circumstances the matter be reported to the army. It was in this background the accused persons reported the matter to the army when they noticed the deceased and his companion running in a suspicious circumstances. Even it had come to the notice of the police during investigation that accused persons were not aware that deceased and his companion were son of complainant and his friend Mushtaq Ahmed. This type of statement has been made by P. Walakhbir Singh, Sarpanch and Mashoq Khan. They have gone to the extent of stating that had the accused been aware that deceased is Mohd Riaz and his companion Mushtaq Ahmed they would have never informed the army. The police has also come forward with a point that there was no past rivalry between the complainant, his son and the accused persons. In this background I fail to understand as to how the police presented challan against the accused that they had instigated the army to fire upon the deceased with an intention that the deceased is killed.CRMC No. 178/2014 Page 5 of 10
So far merit of the case is concerned, it is necessary to make reference to the evidence of the witnesses examined by the prosecution.
P.W. Kaneez Akhtar is cited as eye witness by the prosecution. She has deposed that deceased was not known to her but a long time back he died when he was killed by army and civil persons. According to her when she heard the gun shots she came out from her home. According to her she is not aware of the persons who had fired a shot. She has admitted that deceased was the son of the complainant who was a student.
P.W.Mohd. Hafiz is also cited as eye witness. He has deposed that some 10/12 years ago he was reading in 4th/5th class. According to him a person was killed and at that time he was in the school. That when he returned home he was told by his family members that a boy has died. He is not aware as to who had fired the gun shot.
P.W.Zakir Hussain is cited as a witness to prove the recovery of dead body by the police. Instead he has given the statement as if he was present on spot. He is brother of deceased Riaz Ahmed. Though he has deposed that accused Sandhol Singh instigated the army to kill the deceased by telling them that he was a militant but there is no such statement given by him to the police during investigation. Even he has gone to the extent of deposing that he too was beaten by the army which is not the prosecution case. It is true that a person related to the deceased is a competent witness but his evidence has to be considered with great caution and care and in case it is noticed that such interested person is telling lie or making improvements contrary to the prosecution case then his evidence cannot be relied upon.
During cross-examination this witness has admitted that his statement was not recorded by the police and also he had not gone to the police station. This apparently is incorrect statement because his statement stands recorded during investigation by the police only to the extent of recovery of the dead body. He is only witness to the recovery memo. Thus apparently the witness has tried to act smartly being an intercepted witness and as such, his statement has no bearing and is not sufficient to hold the accused guilty of instigating the army to kill the deceased.
P. W. Mushtaq Ahmed is the person who was running with the deceased Riaz Ahmed. He has deposed that on the day of occurrence he was cutting the grass when he noticed three army vehicles. According to him accused were also with the army who told the army that he is militant. He has further deposed that people raised hue and cry that Riaz Ahmed is not militant. According to him when deceased was scaling the mountain a shot was fired by the army which hit the deceased Riaz Ahmed. According to him the elder Sardar Ji had beaten him with the stick.CRMC No. 178/2014 Page 6 of 10
During the cross-examination he admitted that the army asked them to stop and thereafter fired shots in the air and when the deceased did not stop he was fired upon. He further admitted that it is not recorded in his statement under Section 161 Cr.P.C. that accused Sardool Singh was with army person and was telling them that deceased is militant. It is correct that statement under Section 161 Cr.P.C. does not contain the information that accused Sardool Singh told the army that deceased is a militant and he be fired upon. Thus there is apparent contradiction in the statement under Section 161 Cr.P.C. and the testimony made by the witness before the court. On this apparent contradiction the evidence of P.W. Mushtaq Ahmed cannot be relied upon. It also does not make a sense that when the witness and the deceased was so far away from the army how he heard accused Sardhol Singh telling the army that Riaz Ahmed is militant. Even otherwise this is not the prosecution case for which reference has already been made hereinabove on the basis of the information contained in the challan.
P.W.Sakina Bi is also cited as eye witness by the prosecution. She has deposed that she saw two persons running without anything in their hands who were wearing black garments. The army surrounded the running two persons and raised an alarm and asked the running persons to stop whereupon one person stopped and another started running. The army fired gun shots in the air. A bullet hit the person who was running. That when the injured person was brought back by the police he was alive who died later on. He had not been seen by her and later on came to know he was Riaz. She does not know the name of P.W.Mushtaq Ahmed.
In the cross-examination she has admitted that accused had not been seen by her. According to her the army had surrounded the place from a distance of one kilometer and the persons running did not stop although they were asked to stop.
In the light of the admission made by P.W. Sakina Bi that accused were not present on spot it is clear that prosecution has failed to prove from this witness the involvement of the accused in the crime. She also does not know the name of the army person who fired the gun shot. In the same manner none of the witnesses examined by the prosecution have deposed anywhere that gun shot was fired by army person Subash Singh.
The charge against the accused is only for instigating Subash Singh to kill the deceased. It is not proved by the prosecution that gun shot was fired by accused Subash Chander. Once the prosecution has failed to prove the involvement of the main accused, the accused cannot be said to be the abettors or the instigators. Even otherwise there in the evidence referred hereinabove, it is no where established that accused ever abetted the death of the deceased or instigated the army man Subash Singh to fire upon the deceased. It has not been CRMC No. 178/2014 Page 7 of 10 brought to the notice of the court about the fate of the army man Subash Singh who was tried by the Court of Martial. Thus in absence of any such information the court cannot hold that accused are guilty of abetting the death of the deceased at the hand of army person Subash Singh. As the prosecution has failed to prove the guilt of the accused so it is not necessary to take into consideration the evidence of the other witness produced by the accused.
It is trite law that the prosecution has to stand on its own legs in order to bring home the guilt against the accused. The offence for which charge has been framed against the accused is punishable with 10 years of imprisonment. When the punishment is of such magnitude standard of prosecution evidence has also to be very high. The evidence of the prosecution has already been discussed hereinabove which does not prove the involvement of the accused in the crime. Accordingly accused are acquitted of the charge framed against them. Their bail bonds and personal bonds are discharge.
File after due compilation be consigned to records."
8. From the perusal of record of trial court, it is evident that respondents were charge sheeted on 26.02.2004 for offences under section 304/109 RPC; they denied accusation and prosecution was directed to produce witnesses. Prosecution cited as many as 11 witnesses but produced only five witnesses; two died during course of trial.
9. From bare perusal of statements of PWs Kaneez Akhtar and Mohd.
Hafiz (eye witnesses), it is evident that they have stated nothing against the accused persons. Similarly, court below has not relied upon the statement of PW Mushtaq Ahmed (another eye witness), who was with the deceased at the time of incident, on the ground that there was material contradiction in his statement recorded before the Court and that of statement recorded under Section 161 Cr.P.C. In statement recorded under Section 161 Cr.P.C., he did not name the accused Sardool Singh as a person with army and was asking army to fire upon the deceased. Further, in his statement recorded under Section 161 Cr.P.C., this witness did not narrate that the accused Sardool Singh asked army that the deceased was a militant and he be fired upon. Similarly, PW Sakina Bi, another eye witness, has stated nothing substantial against accused CRMC No. 178/2014 Page 8 of 10 person while recording her statement in the Court during trial. She has stated in her cross examination that she has not seen the accused at the time of occurrence. Court below has also not relied upon the statement of this witness.
10. The court below has not relied upon the statement of P.W. Zakir Hussain, the brother of deceased, on the ground that he was witness to prove the recovery of dead body by the police and instead he has given the statement as if he was present on spot. As per court below he has exaggerated his statement during trial. Court below has also held that during cross examination he has deposed that his statement was not recorded by the police and also he had not gone to the police station.
11. All these findings of court below are neither perverse nor suffer from infirmity of law. The courts while appreciating the evidence in criminal cases have to see the decree of proof is maxim than that of civil case. The evidence produced by prosecution should be legally admissible. If there comes slightest doubts regarding the involvement of accused, Court should not go on convicting the accused. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the Court to punish the accused on the basis of moral conviction or suspicion. The burden of proof never shifts, it is always on prosecution. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
12. It is further held that petition under Section 561-A Cr.PC is not maintainable as petitioner was having alternate remedy of filing acquittal appeal against the impugned judgment. Law is well settled that when there is a equally efficacious remedy available under law, petition under Section 561-A Cr.P.C. is not maintainable.
CRMC No. 178/2014 Page 9 of 1013. In view of above discussion, this petition is dismissed.
(Sanjay Kumar Gupta) Judge Jammu 12.04.2019 Meenakshi NARINDER KUMAR SHARMA 2019.04.12 14:28 I attest to the accuracy and integrity of this document CRMC No. 178/2014 Page 10 of 10