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2013 Supreme(J&K) 282
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi, Bansi Lal Bhat, JJ.
Mohammad Rafiq and Ors. -Appellant
Versus
State of J&K and Ors. -Resopndent
Cr. Appeal No. 14 of 2012 and Confirmation No. 10 of 2012
Decided On : 27-09-2013
For Appellant/Petitioner/Plaintiff:Mr. Sunil Sethi, Sr. Advocate , Mr. Mohsin Bhat, Advocate
For Respondents/Defendant: Mr. Ravinder Sharma, AAG
The main legal point established in the judgment is that the evidence must convincingly prove each and every link in a criminal conspiracy and point only to the alleged criminal conspiracy, leaving no room for any other inference.
Headnote:
Criminal Conspiracy - Criminal Law - RPC 302, 307, 120B, 212 - The judgment discusses the evidence and circumstances surrounding the search operation, the presence of a terrorist in the appellant's house, and the resulting encounter with security forces. The court analyzes the prosecution's case of criminal conspiracy against the appellants and concludes that the evidence does not prove the charge of criminal conspiracy to commit murder or attempt to murder beyond reasonable doubt.
Fact of the Case:
The appellants were charged with offences under RPC 302, 307, and 120B based on their alleged involvement in a search operation that led to an encounter with a terrorist. The trial court convicted the appellants, but the appellants appealed the decision, arguing that the evidence did not support the charges of criminal conspiracy.
Finding of the Court:
The court found that the evidence did not prove the charge of criminal conspiracy to commit murder or attempt to murder against the appellants beyond reasonable doubt. The court concluded that the evidence only proved the commission of offences punishable under RPC 212, 120B against the appellants.
Issues: The main issue was whether the evidence supported the charge of criminal conspiracy against the appellants in relation to the encounter with the terrorist during the search operation.
Ratio Decidendi: The court held that the prosecution evidence did not lead to the conclusion that the appellants and the dead terrorist had hatched a criminal conspiracy to commit murder or attempt to murder. The evidence only pointed to the appellants' involvement in helping the terrorist escape and avoid arrest.
Final Decision: The appellants' conviction for the offences punishable under RPC 302, 307, and 120B was set aside. Instead, the appellants were convicted of the offence punishable under RPC 212, 120B and sentenced to rigorous imprisonment for three years and a fine of Rs. 10,000 each.
1. Major Narinder Singh, Company Commander, F - COY 39 Rashtriya Rifles Grenadiers, stationed at Jagal, Mendhar on 8th December 2006 received a source information regarding presence of terrorists in the area under his control. The information prompted him to launch joint search operation with CRPF and SOG Mendhar in general area Banola-Kaneti. While search operation was on, the search party came to know that one terrorist was holed up in appellant's residential house at Kaneti. It was learnt that the appellants to help the terrorist escape arrest, kept him locked inside an alimirah/cupboard in the house. The information received made Major Narinder Singh to deploy a search column at 730 hours, to the target area i.e. appellant's house. The search party went into the house and found an alimirah locked. The appellants were not found in the house. However, their two daughters were present in the house. The search party asked the younger daughter namely Ms. Kiran Firdous to get keys of almirah from her mother Azmat Bi, who was stated to have gone to perform her duties in the local school. Ms. Kiran did not return and the head of the search party made a similar request to Ms. Anjum Firdous, elder daughter of appellant No. 1. Ms. Anjum also did not return with the keys. Shri Singh thereafter went to appellant' second house at Salwah met Azmat Bi wife of appellant No. 1 and mother of appellant No. 2 and requested her come to her house at Kaneti and help the search party to search the house and the locked almirah. Mst. Azmat Bi avoided to cooperate with the search party, leaving no option with the Company Commander but to search the almirah in absence of the owner of the house (appellant No. 1) or any of his family members. He, however, associated two Panchayat members, namely, Umer Din and Mohammad Sharief, with the search operation. The almirah was broken open at 2145 hours. The moment it was broken open, the terrorist holed up inside almirah opened indiscriminate fire on the search party, resulting in death to Security Force personnel, namely, Virender Singh 2694028AGDR and a civilian Mohammad Sharief. Shri Jung Sher Ali JC-450086X NB Sub was injured in the firing incident. The search operation continued till 1730 hours 9th December 2006. The terrorist identified as Abu Suhail alias M2 District Commander LET was also gunned down. The search party seized arms and ammunitions and other items including a mobile phone - Nokia 6600 in use of the dead terrorist.
2. The occurrence was reported by Shri Singh to Police Station Mendhar on 9th December 2006 at 1850 hours. The report lead to registration of case FIR No 177 of 2006 U/S 302, 307, 120B RPC 7/25, 26/27 Arms Act. The investigation was entrusted to Shri Jan Mohammad PSI. The Investigating Officer visited the spot, took over dead bodies of Virender Singh, Mohammad Sharief and Abu Suhail, got post-mortem examination conducted on the dead bodies, recorded statements of all those acquainted with the facts and circumstances of the case, referred injured for medical treatment and obtained the medical report. The Investigating Officer took over arms, ammunitions and other items already seized by the head of the search party and got photograph of the dead terrorist and appellant No. 2 taken with Nokia 6600 cell phone, recovered from the scene of occurrence, developed. The material collected during investigation lead the Investigating Officer to the conclusion that while offence punishable u/ss 302, 307 RPC 7/25, 26/27 Arms Act, were proved against the dead terrorist Abu Suhail alias M2, the appellants had prima facie committed offence punishable U/S 302, 120B RPC.
3. SHO Police Station Mendhar presented the Charge Sheet before JMIC, Mendhar on 24.2.2007. The case was committed to Sessions Court, Poonch on 24.2.2007 itself. The appellants were on 8.9.2007 formally charged of offence punishable u/s 302, 307 read with 120B RPC. They denied the charge and claimed to be tried.
