Jammu & Kashmir High Court
State Of J&K; vs Abdul Rashid Khan & Ors. on 30 October, 2017
Bench: Alok Aradhe, Tashi Rabstan
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Cr. Acq. Appeal No.55/2008
c/w
Cr. Acq. Appeal No.57/2008
Date of order:30.10.2017
State of J&K Vs. Abdul Rashid Khan & ors.
State of J&K Vs. Abdul Rashid Khan
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge.
Hon'ble Mr. Justice Tashi Rabstan, Judge
Appearance:
For appellant (s) : Mr. S. S. Nanda, Sr. AAG.
For respondent(s) : Mrs. Veenu Gupta, Advocate.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
Per : Aradhe-J
01. In these Criminal Acquittal Appeals, the appellants have assailed the validity of the judgment dated 02.02.2008 by which the respondents have been acquitted of the offences under Sections 364/302/201/34 RPC in FIR No.80/1999 registered at Police Station Nageen, Srinagar and for offences under Sections 364/302/201/120-B RPC read with Section 7/27 Arms Act in FIR No.31/1999 registered at Police Station Sheeri, Baramulla.
02. The prosecution story in nut shell is that on 23.06.1999, the victims namely Nazir Ahmad Gilkar, Javed Ahmad Shah and Ghulam Rasool Mattoo at about 7:30 p.m. after seeing-off the bride namely Anjum at Badpora were returning on a Scooter bearing Registration No.DL-33-7771. The aforesaid Scooter was stopped and checked near Police Station Soura, Srinagar by police personnel of the same Police Station and three persons were taken Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 1 of 8 away alongwith Scooter to Police Station Soura. The victim Nazir Ahmad Gilkar was subjected to torture during investigation, as a result of which, he expired in the Police Station itself on that very night. It is also the case of the prosecution that in order to conceal their unholy act, the accused persons decided to do away with the lives of rest of the two victims also. As per prosecution story, under the command and direction of co-accused Abdul Rashid, they availed the services of CRPF personnel by using their vehicles and they took away the victims to Baramulla and shot them dead and their dead bodies were thrown within the jurisdiction of Sheri Police Station. Initially the proceedings under Section 174 of the Code of Criminal Procedure were initiated. However, later on FIR was registered with Police Station Sheri, Baramulla on 26.09.1999. So far as Nazir Ahmed Gilkar is concerned, his body was found from Dal Lake area within the jurisdiction of Nageen Police Station. Both the cases later were investigated by the Crime Branch, Srinagar. On the basis of the investigation carried out by the Crime Branch, Srinagar except accused Tariq Ahmad Guru, all the accused were charge-sheeted for commission of offences under Sections 364/302/201/34 RPC in FIR No.80/1999 registered at Police Station Nageen, Srinagar. Accused Tariq Ahmad Guru was booked under Section 201 of RPC. FIR No.31/1999 was registered at Police Station Sheeri, Baramulla for offences under Sections 364, 302, 201, 120-B RPC read with Section 7/27 of Arms Act. After completion of the investigation, charge- sheets were filed. It is pertinent to note that the accused Tariq Ahmad Guru had died during the pendency of the proceeding for filing challan.
03. The prosecution in order to prove its case examined as many as 36 witnesses, namely, Pw-1/Mushtaq Ahmed, Pw-2/Gulzar Ahmed, Pw- 3/Muzaffar Ahmed, Pw-4/Abdul Aziz, Pw-5/Farooq Ahmed, Pw-6/Ashfaq Ahmed Wani, Pw-7/Shagufta Javed, Pw-8/Riaz Ahmed, Pw-9/Mohd. Amin Wani, Pw-10/Gulam Nabi, Pw-11/Abdul Majid, Pw-12/Mohd. Amin, Pw- 13/Parvez Sajad, Pw-14/Nazir Ahmed, Pw-15/Mohd. Maqbool, Pw-
Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 2 of 816/Abdul Rashid, Pw-17/Ameena Bano, Pw-18/Gulam Hassan, Pw- 19/Bilal Ahmed, Pw-20/Shagufta Hamid, Pw-21/Peer Noor-Ul-Haq, Pw- 22/Dr. Ross Masood Nehvi, Pw-23/Mohd. Afzal Bhat, Pw-24/Mukhtar Ahmed, Pw-25/Parveen, Pw-26/Mohd. Amin, Pw-27/Mohd. Yousaf, Pw- 28/Abdul Hamid Bhat, Pw-29/Jan Mohd. Khan, Pw-30/Gh. Mohd. Shah, Pw-31/Nazir Ahmed Shah, Pw-32/Mukhtair Ahmed Bazaz, Pw-33/Raj Narayan, Pw-34/Mohd. Amin Shah, Pw-35/Bashir Ahmed and Pw-36/Azad Ahmed. The Trial Court vide impugned judgment has acquitted the respondents of the offences alleged against them. Being aggrieved, these appeals have been filed.
04. Mr. Nanda, learned Sr. AAG for the appellant has invited the attention of this Court to the evidence of Pw-5/Farooq Ahmed, Pw-7/Shagufta Javed and Pw-14/Nazir Ahmed and has submitted that there was enough material available on record to connect the accused persons with the offences in question. It is further submitted that the Trial Court has failed to view the evidence on record in its correct perspective which has resulted in erroneous findings and consequent judgment. On the other hand, Mrs. Gupta, learned counsel for the respondents has read over to us the statement of prosecution witnesses namely Shagufta Javed, Shagufta Hamid and Nazir Ahmad Shah and has submitted that the Trial Court has rightly doubted the version of the prosecution that Shagufta Javed and Shagufta Hamid had sighted the Scooter inside the premises of the Police Station. It is further submitted that Peer Noor-Ul-Haq, Stamp Vendor, who has been examined as Pw-21, has stated that he has seen only two victims in the custody whereas the prosecution story is that three victims have died. It is further stated that none of the prosecution witnesses have seen the victims either in the custody of the police or in the Police Station. It is also submitted that there is no eye witness to the incident and the Trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondents.
Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 3 of 805. We have considered the submissions made by learned counsel for the parties and have perused the record.
06. Pw-1/Mushtaq Ahmed is a witness to the recovery of the dead body of Nazir Ahmad Gilkar. Pw-2/Gulzar Ahmed in his evidence has stated that he is witness to the seizure of unidentified body. Pw-3/Muzaffar Ahmed is a photographer, who has taken the photographs of the dead bodies. Pw- 4/Abdul Aziz in his evidence has stated that he was called in the Police Station to identify the dead body but he was unable to do so. Pw-5/Farooq Ahmed has stated that he alongwith his brother had joined the wedding function in the neighbor-hood on 23.06.1999 and two Maruti Cars and one Scooter were stationed at the wedding place when the bride was given sent off. While they were returning after giving a send off to the bride, they were intercepted near Police Station, Soura. He alongwith Shagufta wife of Javed Ahmed and Shagufta, sister of Javed Ahmed Shah and Parveen, sister of Jan Mohd. and Said Din Shah reached Police Station before 10.00 p.m. He asked the Police Guard on the main gate if Scooter alongwith three persons has been detained and that he wants to meet SHO but Guard replied that SHO was not in the Police Station and he was asked to come on the next day. It is further stated by him that he alongwith Iftar Ahmed visited Police Station at 7:30 a.m. but again guard informed them that there was nobody in the Police Station and he did not notice Scooter in the Police Station in the morning. Pw-6/Ashfaq Ahmed Wani has deposed that Nazir Ahmed Gilkar was his uncle and he identified the dead body of the deceased on 01.07.1999 in Zakoora Police Station. He has identified the dead body as well as clothes of the deceased. Pw-7/Shagufta Javed has deposed that she saw the Scooter in the Police Station through grill and called other persons also and felt relieved that her husband was in the Police Station. Pw-8/Riaz Ahmed, who was posted as guard on the 2nd gate of Police Station, Soura on 23.06.1999, has only deposed that he knew the accused. However, he has denied that Scooter or a person brought in the Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 4 of 8 Police Station. The aforesaid witness has been declared hostile. It is pertinent to mention here that Pw-9/Mohd. Amin Wani, Pw-10/Gulam Nabi, Pw-11/Abdul Majid, Pw-12/Mohd. Amin, Pw-13/Parvez Sajad, Pw- 14/Nazir Ahmed, Pw-15/Mohd. Maqbool, Pw-16/Abdul Rashid, Pw- 17/Ameena Bano and Pw-18/Gulam Hassan have been declared hostile by the prosecution and nothing incriminating from their cross-examination could be elicited by the prosecution.
07. Pw-19/Bilal Ahmed has deposed that he knew the deceased and had joined the wedding celebration. It is pertinent to mention here that the statement of the aforesaid witness was recorded by the police after more than one month from the date of incident. He has merely stated that the Scooter on which the deceased was travelling was intercepted by the Police Naka party. However, he does not know the reasons as to why the vehicle was intercepted. Pw-20/Shagufta Hamid has stated that Javed Ahmed Shah was her brother and she had found the Scooter in the Police Station and Gatekeeper had asked to come on the next day as the SHO was not in the Police Station. Pw-21/Peer Noor-Ul-Haq has deposed that he is a Stamp Vendor. His statement was recorded on 24.09.1999 whereas the incident had taken place on 23.06.1999 i.e. nearly after a period of three months. In his statement, he has stated that two persons were brought in his room where two persons were already lodged. However, he does not know what happened thereafter. Pw-23/Mohd. Afzal Bhat in his evidence has stated that he is witness to the seizure memos. Similarly, Pw-24/Mukhtar Ahmed has deposed that he did not go to see-off the bride on 23.06.1999. Pw- 25/Parveen wife of Ghulam Mohd. has stated that she alongwith 30-35 persons had gone to send-off the bride. However, the deceased did not return. Later on, their dead bodies were found. It was further stated by her that the wife of Javed Ahmed had recognized the Scooter in Police Station. Pw-26/Mohd. Amin has not deposed anything in favour of the prosecution. Pw-27/Mohd. Yousaf has deposed that on 23.06.1999, he heard from some Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 5 of 8 persons that the persons, who had gone with bride to see her off that the STF people were checking Auto and Scooter at Soura and the deceased did not return alongwith rest of the party. Later on, he came to know that their dead bodies were found. Pw-28/Abdul Hamid Bhat has stated that he visited Police Station, Sheri and identified the dead bodies in the Police Station which were buried there by the Police.
08. Pw-29/Jan Mohd. Khan has deposed that his sister got married on 23.06.1999 and he had gone alongwith others to see-off his sister at 7:30 p.m. The accused were present near the Police Station, Soura but they did no wrong to him. Pw-30/Gh. Mohd. Shah has deposed that he is father of the deceased Javed Ahmed Shah and he received an information that his son has expired thereupon he visited Sheri Police Station Baramulla and brought back the dead body. The statements of Pw-31/Nazir Ahmed Shah, Pw-32/Mukhtair Ahmed Bazaz, Pw-33/Raj Narayan, Pw-34/Mohd. Amin Shah, Pw-35/Bashir Ahmed and Pw-36/Azad Ahmed have no material bearing.
09. From careful scrutiny of the material adduced by the prosecution, it is evident that the wall of the Police Station was 10 feet high and Pw-8/Riaz Ahmed himself has stated that it is not possible to see anything inside the Police Station, therefore, the evidence of wife of the deceased namely Shagufta Javed has rightly been disbelieved by the Trial Court to the extent that she did see the Scooter of the deceased inside the Police Station. It is also pertinent to mention that the prosecution has failed to prove the vital fact that the victims were either brought to the Police Station or they were detained in the Police Station. The prosecution witnesses have not deposed anything against the accused persons and they have totally denied the occurrence taking place in the Police Station, Soura. The prosecution witnesses have neither deposed that either the Scooter or the victims were brought to the Police Station, Soura or any enquiry was made from the Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 6 of 8 relation of the victims in respect of missing persons, who are alleged to have victims in the hands of the accused persons.
10. The entire prosecution story is based upon sighting of the Scooter which was being used by the victims in the fateful night of 23.06.1999 in the Police Station. Even assuming the same to be correct is not sufficient to connect the accused with the commission of offences. The sighting of the Scooter in the Police Station, Soura has already been held to be doubtful as the height of the boundary wall of the Police Station was 10 feet and the same was manned by the personnel of the CRPF. There is no material on record to show that the Scooter was intercepted by the Naka Party near Police Station, Soura or Naka Party was being headed by any of the accused persons and the accused persons were the members of the Naka Party. At the most, from the evidence adduced by the prosecution, it is borne out that the prosecution witnesses had visited the Police Station and wife of the deceased-Javed Ahmed had seen the Scooter there. This circumstance by itself is not sufficient to bring home the guilt to the accused persons in the absence of any evidence on record. No presumption can be drawn that the victims were brought in the Police Station merely because their Scooter was found in the Police Station. The Trial Court on the basis of meticulous appreciation of evidence on record has acquitted the respondents of the offences alleged against them.
11. The Trial Court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the Trial Court is also a reasonable view of the evidence on record and the findings recorded by the Trial Court are not manifestly erroneous, contrary to the evidence on record or perverse. (See Ram Swaroop and others. Vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v.
Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 7 of 8State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124.
12. From perusal of the judgment of the Trial Court, we find that the findings recorded by the Trial Court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in these acquittal appeals is made out. In the result, the appeals fail and are hereby dismissed.
(Tashi Rabstan ) ( Alok Aradhe )
Judge Judge
Jammu
30.10.2017
Ram Murti
Cr. Acq. Appeal No.55/2008 & Cr. Acq. Appeal No.57/2008 Page 8 of 8