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2014 Supreme(J&K) 497
Jammu & Kashmir High Court
Yaqoob Mir, Muzaffar Hussain Attar, JJ.
Mohamamd Shabir Code Gazi - Appellant
Versus
State of J and K - Respondent
Cr. Appeal No. 04/2011, Cr. Appeal Nos. 15J and 19J/2011 and Confirmation No. 8J/2011
Decided On : 24-02-2014
For the Appellant :M.A. Qayoom, Advocate
For the Respondents: S.A. Naik, AAG
The quality of evidence, particularly the reliability of eyewitness testimony, is crucial in criminal cases, and the court may rely on a single witness if found wholly reliable.
Headnote:
Conviction - Criminal Procedure - Code of Criminal Procedure, Svt. 1989 - Section 374, Section 7/27(3) Arms Act, Section 302 RPC, Section 460 RPC, Section 148/149 RPC, Section 212 RPC, Crime No. 36/2002 - Summary of the acts and sections referenced and discussed by the court.
Fact of the Case:
The case involved the conviction of appellants for various offences including murder, arms act violations, and providing shelter to accused persons. The prosecution's case was based on the testimony of the widow of the deceased, who witnessed the accused entering their house and fatally shooting her husband.
Finding of the Court:
The court found the testimony of the widow to be credible and reliable, leading to the conviction of one appellant for murder and arms act violations. However, the court acquitted the other appellants due to lack of evidence against them.
Issues: The key issues included the reliability of the sole eyewitness testimony, the effect of non-production of other witnesses, and the applicability of different sections of the law to the actions of the accused.
Ratio Decidendi: The court relied on the principle that the quality, not the quantity, of evidence is crucial in proving or disproving a fact. It emphasized the reliability of the sole eyewitness testimony and the lack of prejudice caused by the non-production of other witnesses.
Final Decision: The court convicted one appellant for murder and arms act violations, acquitted the other appellants, and set aside the death sentence, deeming it impermissible in the circumstances of the case.
Yaqoob Mir, J.-
1. Appellants-Mohd. Shabir Code Gazi, Raj Din and Nazir Ahmed have filed three separate appeals against judgment and order dated 15.04.2011 and 03.05.2011 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. 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;
2. Appellant-Nazir Ahmed has been convicted under Section 212 RPC and sentenced to imprisonment for three years with fine of Rs.5,000/-.
3. 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, Ashiq Ali were absconding.
4. 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 01.03.2006. Likewise on arrest and production of another accused, namely, Ashiq Ali Bhat, charge has been framed against him on 15.08.2012.
5. The prosecution in support of its case out of listed fourteen witnesses has produced and examined listed witnesses nos. 1, 2, 4, 5, 6, 7, 8, 9, 10 and 14. The prosecution evidence has been closed vide Order dated 04.11.2010. 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.
6. 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, 2002atabout 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 302/460/148/149/201/212 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 punishable
