Jammu & Kashmir High Court
State Of J&K; vs Nazir Ahmed And Ors on 19 December, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Serial No.3
Final Hearing List
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRAA No. D-11/2007 (old)
CRAA No.9900012/2007(new)
Date of order: 19.12.2017
State of J&K vs Nazir Ahmed and ors
Coram:
Hon'ble Mr Justice Badar Durrez Ahmed, Chief Justice
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the appellant(s) : Mr Ahatsham Bhat, G.A.
For the Respondent(s) : Mr Rahul Raina, Advocate.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Badar Durrez Ahmed, CJ
1 This appeal by the State is directed against the judgment dated 18.08.2006
delivered by the Sessions Judge, Udhampur in file No.15/Sessions whereby all the respondents were acquitted of the offences punishable under Sections 302/120- B/148-B/436 and 109 RPC of which they were charged. The said Sessions' case arose out of FIR No.74/2003 registered at Police Station, Mahore, District Reasi. Initially, the said FIR No.74/2003 was registered under Sections 302/132/158/120-B/121/123 RPC and 7/25 & 6/27 of the Arms Act, 1959.
2 The case pertains to the killing of one Mohd Yousaf, who was a teacher in the Education Department. The case, as initially registered in the said FIR, was that in the intervening night of 3rd and 4th of August, 2003, some Pak trained militants trespassed into the house of one Mohd Latief in village Thooru and shot the said Mohd Yousaf, who died as a result of the same. The deceased had come to the village to attend the marriage of his brother-in-law. It was further the case, as registered in the said FIR, that the alleged militants while returning, after CRAA No. 9900012/2007 Page 1 of 12 committing the crime, set fire to the house of one Mir Hussain S/o Mehandia R/o Thooru. Thereafter, investigation ensued by the Investigating Officer going to the spot and preparing the site plan etc. The Investigating Officer is said to have found one live cartridge, one empty and one more cartridge and a blood stained gunny bag at the spot, which were allegedly seized by him. The ashes from the burnt house of Mir Hussain were also seized. So was the dead body. After autopsy, it was handed over to the legal heirs of the deceased for performing the last rites. The blood stained clothes of the deceased were also sealed on the spot and again resealed for the purpose of chemical examination by the Forensic Science Laboratory.
3 The subsequent investigation allegedly revealed that the deceased Mohd Yousaf was not in the hit list of the militants and as such, he was perhaps murdered in a pre-planned and selective manner. On the basis of suspicion, the legal heirs of the deceased moved an application before the SSP Udhampur for conducting an autopsy on the dead body of the deceased once again. The application was forwarded to the District Magistrate, Udhampur, who gave permission for exhuming the dead body of the deceased Mohd Yousaf and for conducting the post mortem examination thereupon by the Board of Doctors. The dead body was exhumed from the graveyard and the post mortem examination was conducted by the Board of Doctors. It appears that the Board opined that the deceased Mohd Yousaf died probably due to a head injury. The FSL report also revealed that the decomposed body material did not indicate traces of Lead, Nitrate and Copper radicals to infer any firing.
4 Shortly thereafter, all the accused were arrested on 21.05.2004. Apparently, a disclosure statement was made by Mohd Latief and allegedly the weapon of offence (iron Takla or iron rod) was recovered at his instance.
5 The investigation was thereafter transferred to the Crime Branch, Jammu and as per the prosecution, during investigation, it was revealed that the deceased Mohd Yousaf, who was serving as a teacher in the Education Department, had CRAA No. 9900012/2007 Page 2 of 12 contracted his first marriage in the year 1984-85 with one Fatima and two sons were born out of that wedlock. However, the relations between Mohd Yousaf and Fatima soured and ended in dissolution of the marriage. Thereafter, in 1991-92, the said Mohd Yousaf contracted a second marriage with accused Shamshad Begum D/o Gulaba R/o village Thooru, Tehsil Mahore. It is the case of the prosecution that as she was a matriculate, her family members, prior to her marriage with the deceased Mohd Yousaf, got an assurance from him that he would get her employment. This couple also had two sons. However, it is the prosecution case that Shamshad Begum was cruel towards her step-sons and used to harass them, as a result of which, she was rebuked by the deceased. It is also the case of the prosecution that the in-laws of the deceased, that is, the family members of Shamshad Begum, approached him (the deceased) for a matrimonial alliance for his brother-in-law. But, the deceased, in view of his strained relations with his wife Shamshad Begum and in-laws, did not accept the marriage proposal. It is also alleged that that despite his assurance, the deceased did not get any employment for his wife Shamshad Begum and as such, the relations between them deteriorated, resulting in Shamshad Begum leaving her home in the month of July 2003 and being un-traceable for three days. When she returned, there was a quarrel between her and the deceased and thereafter, the latter apprehended danger to his life. It is the case of the prosecution that because of these circumstances, the accused hatched a conspiracy to eliminate him with the objective that Shamshad Begum would get employment under SRO-43 whereby employment could be obtained for the next of kin in the case of death of a serving Government employee.
6 It appears that on 03.08.2003, the marriage of the brother-in-law of the deceased was solemnized in village Thooru in which the deceased and his brothers also participated. The deceased Mohd Yousaf did not want to attend the marriage, but was compelled by his wife to do so. Consequently, as per the prosecution case, he along with his wife Shamshad Begum, two children, nephew Khushi Mohd S/o Bali Mohd and Lal Din son of Makhan went to attend the said CRAA No. 9900012/2007 Page 3 of 12 marriage. As per the prosecution case, at the time of the Mehandi ceremony, the said Khushi Mohd heard a noise from outside the house and upon which, he asked Shamshad Begum as to what had happened and where was Mohd Yousaf. It is alleged that she replied that he was resting. It is the further case of the prosecution that thereafter, Mohd Yousaf was heard telling his wife ( Shamshad Begum) as to why he was to be murdered by the criminals and that if she (Shamshad Begum) wanted to get some employment, he would resign and get her a job. It is further alleged that in the meantime, the accused Bashir Ahmed, Mohd Latief, Mohd Hussain amd Abdul entered into the room along with Nazir Ahmed S/o Lal Din. It is the case of the prosecution that Nazir Ahmed said that he had set the house of Mir Hussain on fire and that now Master Mohd Yousaf would also be taken care of. The prosecution version is that Bashir Ahmed gave a fist blow on the mouth of the deceased Mohd Yousaf and he started bleeding. All the accused forcibly dragged Mohd Yousaf outside the house and took him into the home of the accused Mohd Latief and when the witnesses, namely, Khushi Mohd PW-1 and Lal Din PW-3 allegedly resisted, the accused are said to have threatened them with dire consequences, as a result of which, the said alleged witnesses concealed themselves in the maize crops. It is further the case of the prosecution that all this while, the deceased Mohd Yousaf was crying for help from inside the house but Shamshad Begum did not intervene. On the next day, the heirs of the deceased, that is, his family members, were informed that he had been murdered by his in- laws and that the incident was shown to have been caused by militants.
7 After completion of the investigation, the final report for the commission of the offences was submitted in the Court of CJM, Udhampur, who committed the case to the Court of Sessions, Udhampur. The charge under Sections 302/120- B/148/436 RPC was framed against the accused. All of them pleaded not guilty and claimed trial.
8 The prosecution examined as many as 19 witnesses. Khushi Mohd, PW-1 and Lal Din, PW-3 were claimed to be the eye witnesses.
CRAA No. 9900012/2007 Page 4 of 129 Khushi Mohd, PW-1, in his examination- in- chief, stated that at the time of the marriage between Shamshad Begum and the deceased, the latter had promised to get employment for Shamshad Begum. But, he could not do so and as such, both of them quarreled with each other. He further stated that on 03.08.2003, he had gone to attend the marriage of the brother-in-law of the deceased at Thooru and that PW- 3 Lal Din was also with him. He stated that at about 11 pm, Haji Nazir, Munawar Hussain, Bashir, Latief, Shamshad Begum and Abdul Latief (i.e., the accused) were talking with each other on the roof of the house. Mohd Yousaf had fever and he had been asked to sleep. The witness also stated that he went to sleep in another room and he heard a noise from the house where the marriage was in full swing. He enquired from Shamshad Begum as to what had happened and where was the Master (that is, Mohd Yousaf, who was a teacher). Shamshad Begum apparently told him that he was sleeping. The witness further stated that he heard Mohd Yousaf asking Shamshad Begum as to why she was getting him murdered by the criminals and if she had to get a job, he would resign. He further stated that in the meantime, the accused Bashir came inside and inflicted a fist blow on the nose of the deceased, who started bleeding. Thereafter, Munawar Hussain came there and caught hold of Mohd Yousaf's left arm and the other accused also came there. Haji Nazir also arrived and stated that he had taken care of the house of Mir Hussain and that they would now take care of 'Master' (Mohd Yousaf). The accused, according to the witness, dragged Mohd Yousaf outside the room, but Shamshad Begum remained there. They started beating him with sticks. According to the witness, he and Lal Din (PW-3) intervened in the fight, but they were also beaten and accused Munawar Hussain is stated to have said that he would finish the said witnesses with his gun. Consequently, according to the said witness, he and Lal Din, concealed themselves in the maize crops and remained there throughout the night. According to the witness, during this period, Mohd Yousaf cried for help so that his life could be saved. Thereafter, the dead body of Mohd Yousaf was buried by his legal heirs.
CRAA No. 9900012/2007 Page 5 of 1210 According to the witness (Khushi Mohd PW-1), the police came on the spot and he narrated the whole story to the police on 12th. In his cross- examination, he admitted that the deceased was his cousin and that PW-3 Lal Din was also related to the deceased. He further stated that his house was at a distance of two kilometres from the house of the deceased and that he was not invited in the marriage, but at the request of 'Master Ji' (Mohd Yousaf) he accompanied him. Mohd Yousaf is also said to have requested Lal Din to accompany him and that is how they went to the house, where the marriage was solemnized. In cross- examination, he has further stated that when the accused were beating Mohd Yousaf, no other person except him and Lal Din were present. Importantly, they also stated that when the accused came inside, they were empty handed. In the very next statement, the witness contradicted himself by stating that the accused Abdul and Latief were armed with sticks. The witness stated that he and Lal Din sustained injuries on their persons and that when they went to the house of the deceased on 5th of August, 2003, all the villagers had gathered there and the accused were also present, but they did not disclose the incident there. The police came to the house of the deceased on 18 th August and they went to the police on 12th August and on the same day, he gave the statement before the police. The witness, however, stated that he could not say as to why the date of 20.02.2004 has been recorded by the police in his statement, but, according to him, he made the statement on 12th August and that his statement was not recorded by the police on 20.02.2004. He denied the suggestions that he did not participate in the marriage ceremony.
11. The other witness of importance is PW-3 Lal Din, who was also slated as an eye witness by the prosecution. He has, more or less, said the same thing as PW- 1 Khushi Mohd. What is important is that this witness also stated that he did not tell anybody about the occurrence and that he was summoned by the police on 12th August 2004 and his statement was recorded. In cross-examination, PW-3 Lal Din stated that the deceased lived at a distance of 4/5 kilometers from his house and he had never gone to the house of the deceased and he had also not gone to CRAA No. 9900012/2007 Page 6 of 12 the house of the accused prior to the alleged occurrence and had gone there only once with the deceased. He also admitted that he was never called by the Master (Mohd Yousaf) to attend some feast. He also stated that he along with Khushi Mohd were also beaten by the accused and received injuries on their bodies. But, on the 4th day, when he went to the house of the deceased, he did not tell anybody about the occurrence. He also stated that he was summoned by the police to the Mahore Police Station and he did not go there of his own because of the fear of the accused.
12 After examining the testimonies of these witnesses in detail, the learned Sessions Judge Udhampur came to the conclusion that it was extremely doubtful that these two witnesses (PW-1 Khushi Mohd and PW-3 Lal Din) were eye witnesses at all. First of all, they were both closely related to the deceased Mohd Yousaf. Consequently, they did not disclose the occurrence to anybody in the village till 20.02.2004 when the police recorded their statements, that is, there was a delay of six months in making their statements to the police. Their statements that they informed the police about the occurrence on 12 th August,2003 is contrary to the prosecution case, which clearly reveals that the police recorded their statements on 20.02.2004. In any event, there is no explanation for this delay of approximately six months in reporting the occurrence to the police or to anybody in the village. This is particularly so because they claimed to be the eye witnesses and also to be related to the deceased. Consequently, the Sessions Judge, Udhampur found their conduct to be unnatural and the impression that could be gathered was that these witnesses were not speaking the truth and had not at all witnessed the crime.
13 We, on going through the testimonies of both these witnesses, tend to concur with the findings and observations of the trial Court insofar as these two witnesses are concerned. It is further to be noted that the presence of these witnesses at the marriage ceremony is also extremely doubtful as they have admitted that they were not invited to the wedding.
CRAA No. 9900012/2007 Page 7 of 1214 The next point concerns the alleged disclosure statement, exhibit PW-LD which is said to have been made by the accused Mohd Latief. It is the case of the prosecution that an iron Takla was recovered at the instance of Mohd Latief, who allegedly made the said disclosure statement, exhibit PW-LD. The trial Court has discussed this aspect of the matter as under:
"The next circumstance relied upon by the prosecution in order to connect the accused with the commission of the alleged offence is the disclosure statement alleged to have been made by the accused Mohd. Latif regarding the weapon of offence i.e "Iron Takla" which is stated to have been recovered at his instance. Lal Din PW-4 and Bashir Ahmed PW-9 are the marginal witnesses of the disclosure statement marked as EXPW-LD whereas, besides these witnesses, Mohd Hussain PW-6 is an attesting witness of the recovery memo marked as EXPW-LD/1. Lal Din PW-4 is the cousin of the deceased whereas Bashir Ahmed PW-9 is the real brother of the deceased, Lal Din PW-4 has stated that Mohd Bashir came to him and told him that Mohd. Latif has been arrested by the police and they should go there. Both of them went to the police station where the accused Mohd. Latif made a disclosure statement in his presence and then they left for his house at 9.15 AM and reached there at 11.15 AM and the accused brought the "Takla" and produced the same before the police. Similarly Bashir Ahmed PW-9 has stated that village Thuru is at a distance of 20/25 Kilometers from the police station Mahore and there were number of houses near the house of the accused Latif. Mohd. Hussain PW-6 is also a marginal witness of the recovery memo marked as EXPWLD/1 but his presence on the spot becomes doubtful because Lal Din PW-4 and Bashir Ahmed PW-9 have stated nothing about the presence of Mohd. Hussain PW- 6. From the statements of these witnesses, it appears that when they went to the police station, where the accused Mohd. Latif made the disclosure statement and number of persons were present there, then they accompanied the police to the place of recovery which was at a distance of 20/25 Kilometres from the police station and number of houses were there the house of the accused from where the weapon of offence was recovered but it is strange that not even a single witness has CRAA No. 9900012/2007 Page 8 of 12 been associated with the investigation. Lal Din PW-4 and Bashir Ahmed PW-9 are the interested witnesses being close relatives of the deceased and other independent witnesses who were available, have not been examined in this case. The presence of Mohd. Hussain PW-6 on the spot has been made doubtful by the other witnesses of the recovery memo marked as EXPW-LD/1. In view of such an evidence on the record, it is difficult for the court to believe that the weapon of offence was recovered at the instance of the accused. Even if it is presumed for the sake of argument that the weapon of offence was recovered on the disclosure statement of the accused Mohd. Latif it is of no significance because there is no evidence on the record that the said "Iron Takla" was used by the accused while committing murder of the deceased. The opinion of the doctor was sought as to whether the injury found on the dead body of the deceased could be possible by that weapon and he replied in positive. He has further stated that no blood stain was found on the said "Iron Takla" i.e spinning rod. Had it been used in the commission of the offence, it would have definitely blood stained. This is not so in the present case. Hence the recovery of weapon of offence is meaningless. In somewhat similar situation the Hon'ble Supreme Court in a case reported in 2004(7) Supreme 196 has held that "where the knife was recovered from the possession of the accused but it was not blood stained and it could not be taken as incriminating evidence against the accused." Similar view was expressed in 2005(5) Supreme 636".
15 We may add that we agree with the trial Court that even if it were assumed that the recovery of the iron Takla was at the instance of Mohd Latief and pursuant to a disclosure statement, it would be of no use to the prosecution because there is no evidence whatsoever connecting the iron Takla with the death of Mohd Yousaf. At this juncture itself, we would like to point out that there are serious infirmities in the prosecution case, particularly with regard to the manner in which the death of Mohd Yousaf was caused. It may be recalled that in the first instance, the case of the prosecution was that Mohd Yousaf died as a result of a gun shot injury at the hands of some Pak trained militants. It is also in evidence that a live cartridge, one empty and one more cartridge were seized by the CRAA No. 9900012/2007 Page 9 of 12 Investigating Officer when he went to the spot on 04.08.2003. The inquest report, exhibit PW-MS has been proved by Mohd Shafaq, PW 14. He has stated that in the month of August 2003, he was posted as ASI in the Police Post at Arnas and he went to the spot in connection with investigation of the present case. It is he, who prepared the site plan, which is exhibited as exhibit PW-MS1. In cross- examination, Mohd Shafaq, PW 14 stated that as per the inquest report, the deceased died because of gun shot injury and the injury wound was from one side, whereas the exit wound was on the other side. He also confirmed that he found one bullet, one live cartridge and one empty on the spot. He also revealed in his cross examination that the militants roamed in that area and he had come to know later on that the deceased was murdered by the militants. The last statement is of course a hearsay, but what is material is that he has confirmed the inquest report, which clearly revealed that the deceased died because of a gun shot injury. The exact expression used in Urdu was 'Bawajah lagne goli'. It may be pertinent to note that a post mortem examination was also conducted at that point of time, but the same has not been produced by the prosecution as evidence in the case. That post mortem report is on record, though not exhibited. As per that post mortem report, the opinion of the Doctor was that the death occurred due to hemorrhage and shock and brain damage due to bullet injury in the head. The prosecution did not produce this post mortem report by way of evidence as it would completely demolish the prosecution version which was brought to the Court. In any event, even if we do not look at the post mortem report, inasmuch the same has not been proved by any witness, the inquest report prepared by PW- 14 Mohd Shafaq is there for all to see and that clearly indicates that the deceased Mohd Yousaf died on account of a gun shot injury. The second post mortem report which was prepared by the Board of Doctors pursuant to the body being exhumed after several months, only indicates that the deceased died because of head injury.
16 PW-7 Dr. Chander Parkash, who conducted the autopsy on the dead body of Mohd Yousaf after exhumation, stated that the same was conducted on 30.10.2003, that is, more than two months after the incident and for this period of CRAA No. 9900012/2007 Page 10 of 12 two months, the dead body remained buried in the grave, as such, the dead body was in an advanced stage of decomposition and the whole body has been skeletonized. There was no fracture on the body except for a fracture in the skull bone. The injuries as indicated by him were as under:
"INJURIES:
HEAD:
(i) Skin had turned dark, hair present. Learing the scalp at some places and attached to the coffin.
(ii) Skull bone suture loosened.
(iii) Brain liquidated to small size ash-coloured material (I) corresponding to the right ear, fissured like fracture temporal bone near external acoustic meatus, edges of the fracture were approximating no singing of hairs. Corresponding to the site. No specific colour changes.
(iv) 3" above and backward in the oblique line. There was a hole like penetrating injury in right parietal area.
Right parital bone broken, Hole was of 10mm x 12 mm size. Shape having irregular margins inverted with externally there was eroded bone outward to inward.
This hole had extended fissured like fracture right parietal bone extended towards injury No. I (above) corresponding to the injury, on hole area, no singing or colour changes of surrounding tissue and the bone noticed. Tissue surrounding these observating was taken and foul of chemical analysis to Forensic Lab. Jammu"
17 Even the aforesaid injuries as revealed by the said Doctor is not in- consistent with the injuries noted in the inquest report. Thus, the evidence on one hand speaks of the cause of death being a gun shot injury and on the other hand, the prosecution wants us to believe that it was caused by an iron Takla. The latter prosecution story is not sustainable on the basis of evidence on record. That being the case, there is nothing to connect the so-called iron Takla which was allegedly recovered at the instance of accused Mohd Latief with the death of Mohd Yousaf. Therefore, the disclosure statement, exhibit PW-LD would be of no consequence.CRAA No. 9900012/2007 Page 11 of 12
18 The story of two alleged motives, as set up by the prosecution, has not been believed by the trial Court. We are also of the view that the version as set up by the prosecution with regard to the motive is fanciful, to say the least.
19 Lastly, we may examine the testimony of PW- 8, Mir Hussain, whose house was said to have been set on fire by the accused. This witness stated that the accused were known to him. He stated that he was informed that his house situated in village Thooru had been burnt by the militants and he went there with the police . In his cross-examination, he stated that Khushi Mohd, PW1 and Lal Din, PW- 3 were known to him and he did not see them in the village nor had they gone to the house of the accused. He also stated that Khushi Mohd and Lal Din were his brothers-in-law. Interestingly, he also stated that the deceased Mohd Yousaf had died because of a gun shot injury and that the militants had set his house on fire because he had contested the Panchayat election and on the same day, they had also murdered Mohd Yousaf.
20 It is evident that the testimony of PW8 Mir Hussain also puts paid to the prosecution case.
21 After examining the totality of circumstances and considering the arguments advanced by the learned counsel for the parties and also upon going through the evidence in detail, we are of the view that there is no cause for interfering with the judgment of acquittal rendered by the trial Court. No perversity has been pointed out in the manner of appreciation of evidence by the Sessions Court. It is also not the case that any relevant evidence has been ignored by the trial Court. Under these circumstances, we are not inclined to interfere with the decision which is impugned before us. Consequently, the appeal is dismissed.
(Sanjeev Kumar) (Badar Durrez Ahmed)
Judge Chief Justice
Jammu
19.12.2017
Sanjeev
CRAA No. 9900012/2007 Page 12 of 12