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JAMMU AND KASHMIR HIGH COURT
MOHAMMAD YAQOOB MIR and MUZAFFAR HUSSAIN ATTAR, JJ.
Mohammad Shabir Code Gazi & others – Appellant
Vs.
State of J & K. – Respondents
Cr. Appeal No. 4 of 2011
Decided On : 24/02/2014
Conviction - Criminal Procedure - Code of Criminal Procedure, Svt. 1989 - Sections 374, 342, 273, 274 - Arms Act - Sections 7/27(3) - RPC - Sections 302, 460, 148, 149, 212 - Summary of Acts and Sections: Code of Criminal Procedure, Svt. 1989 - Sections 374, 342, 273, 274; Arms Act - Sections 7/27(3); RPC - Sections 302, 460, 148, 149, 212
Fact of the Case:
The case involved the conviction of appellants for various offences including murder, arms act violations, and sheltering accused. The prosecution relied on the testimony of a single eyewitness, the widow of the deceased, to establish the guilt of the accused. The defense argued that the evidence was insufficient for conviction, citing non-production of other witnesses and the Investigating Officer, and claimed that the death sentence was unwarranted.
Finding of the Court:
The court found that the sole testimony of the eyewitness was reliable and sufficient for conviction, as it provided a true account of the occurrence. The court also noted that the non-production of other witnesses and the Investigating Officer did not affect the credibility of the eyewitness. The court concluded that the accused were guilty based on the testimony of the eyewitness and the medical evidence.
Issues: The key issues included the sufficiency of evidence based on a single eyewitness testimony, the effect of non-production of other witnesses and the Investigating Officer, and the appropriateness of the death sentence.
Ratio Decidendi: The court held that the sole testimony of a reliable eyewitness can be sufficient for conviction, and the non-production of other witnesses and the Investigating Officer does not necessarily undermine the credibility of the eyewitness. The court also determined that the accused did not have the intention to commit murder, leading to a conviction under a lesser charge.
Final Decision: The court convicted one appellant for various offences and sentenced him accordingly, acquitted two appellants, and set aside the confirmation of sentence. The death sentence was deemed unwarranted, and the judgment and order of sentence were not in accordance with the law.
YAQOOB, J. :
Appellants-Mohd. Shabir Code Gazi, Raj Din and Nazir Ahmed have filed three separate appeals against judgment and order dated 15-4-2011 and 3-5-2011 passed by learned Principal Sessions Judge, Kathua. For confirmation of sentence of death and life imprisonment awarded, learned Sessions Judge has submitted the record as required in terms of Section 374 of the Code of Criminal Procedure, Svt. 1989, same is numbered as Confirmation. No. 8J/2011.
2. Appellants-Mohd. Shabir Code Gazi and Raj Din have been convicted under Section 7/27(3) Arms Act and sentenced to death with fine of Rs. 10,000/-. They have further been convicted under Section 302, RPC and sentenced to imprisonment for life and fine of Rs. 10,000/-.They have further been convicted under Section 460, RPC and sentenced to imprisonment for life and fine of Rs. 10,000/-. They have also to suffer imprisonment for one year and fine of Rs. 5,000/- under Sections 148/149, RPC.
3. Appellant-Nazir Ahmed has been convicted under Section 212, RPC and sentenced to imprisonment for three years with fine of Rs. 5,000/-.
4. Registration of case as Crime No. 36/2002, Police Station, Bani has culminated into presentation of charge-sheet (challan) to the effect that accused persons have committed the offences punishable under Sections 302/460/148/149/212, RPC and 7/27 Arms Act. Two accused persons, namely, Mohd. Shabir Code Gazi and Nazir Ahmed were arrested as such produced whereas four accused, namely, Mohd. Ashraf, Raj Din, Farid, Asqhiq Ali were absconding.
5. Mohd. Shabir Code Gazi and Nazir Ahmed were put to trial by the trial Court vide Order dated 18-12-2002 whereas on the arrest and production of accused Raj Din, charge has been framed against him on 1-3-2006. Likewise on arrest and production of another accused, namely, Ashiq Ali Bhat, charge has been framed against him on 15-8-2012.
6. The prosecution in support of its case out of listed fourteen witnesses has produced and examined listed witness Nos. 1,2,4,5, 6, 7, 8, 9, 10 and 14. The prosecution evidence has been closed vide Order dated 4-11-2010. Accused persons have been examined in terms of Section 342, RPC. They have denied complicity in the crime as such claimed to be innocent. No witness has been produced in defence.
7. The factual background as emerge from the records is that on 27-11-2002, Police Station, Bani received information from reliable sources to the effect that on the intervening night of 26/27th of November, 2002 at about 11 p.m., seven militants belonging to banned organization Hizbul Mujadhadin armed with deadly weapons led by accused-Mohd. Ashraf and Farid at the instance of ISI of Pakistan with the object of spreading terror and for separating Jammu and Kashmir State from India and to cause damage to the integrity of the Country, entered into the house of deceased Abdul Majid and started beating him whereas accused Mohd. Shabir opened fire and injured deceased Abdul Majid, whereas other accused inflicted injuries with the butts of their rifles and thereafter fled from the scene of occurrence. On the hue and cry of family of the deceased, villagers assembled and took Abdul Majid (deceased) to Hospital located at Bani. On such information, case has been registered for the commission of offence punishable under Sections 302/460/148/149/ 2012/212, RPC and 7/27 Arms Act. On completion of investigation, it was found by the Investigating Agency that on the intervening night of 26/27th of November, 2002, accused Mohd. Shabir Code Gazi, Mohd. Ashraf, Raj Din, Farid, Ashaq Ali along with two other unknown militants in furtherance of common object with criminal intention entered into the house of deceased and started beating the deceased with butts of the rifles and then tied the legs and arms of the deceased. Mohd. Shabir Code Gazi opened the fire which hit the right leg of the deceased-Abdul Majid, who finally succumbed to the injuries. It was concluded that commission of the offences punisha
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