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2017 Supreme(J&K) 554
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Dhiraj Singh Thakur, Sanjay Kumar Gupta, JJ.
State – Appellant
Vs.
Manzoor Ahmed – Respondent
Cr. Acq. Appeal No.150 OF 2014
Decided On : 08-09-2017
For the Appellant : Mr. R. S. Jamwal, Dy. AG.
For the Respondents:Mr. O. P. Thakur, Advocate
Headnote:
ACQUITTAL - SECTION 364/302/450/201 RPC AND 7/27 ARMS ACT - [CRIMINAL APPEAL NO.150/2014] - STATE OF JAMMU AND KASHMIR V. MANZOOR AHMED - [JUDGMENT DATED 10.12.2013] - [HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU WING] - THE COURT HELD THAT THE PROSECUTION FAILED TO PROVE THE CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT AND ACQUITTED HIM.
Fact of the Case:
THE CASE RELATES TO THE KIDNAPPING AND MURDER OF MANZOORA BEGUM, WIFE OF ABDUL LATIEF, BY MILITANTS ON THE INTERVENING NIGHT OF 7TH/8TH APRIL, 2003. THE CASE WAS INITIALLY CLOSED AS UNTRACED, BUT WAS RE-OPENED IN 2007 ON THE BASIS OF AN APPLICATION FILED BY THE HUSBAND OF THE DECEASED, ABDUL LATIEF. THE ACCUSED, MANZOOR AHMED, WAS CHARGED WITH OFFENCES UNDER SECTIONS 364, 302, 201 RPC, AND 7/27 ARMS ACT. THE TRIAL COURT ACQUITTED THE ACCUSED, HOLDING THAT THE PROSECUTION FAILED TO PROVE THE CASE AGAINST HIM BEYOND REASONABLE DOUBT.
Finding of the Court:
THE HIGH COURT UPHELD THE ACQUITTAL OF THE ACCUSED BY THE TRIAL COURT. THE COURT HELD THAT THE PROSECUTION FAILED TO PROVE THE CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT. THE COURT NOTED THAT THE STATEMENTS OF THE EYEWITNESSES WERE INCONSISTENT AND CONTRADICTORY, AND THAT THERE WAS A DELAY OF 4-5 YEARS IN RECORDING THE STATEMENTS OF WITNESSES DURING THE INVESTIGATION. THE COURT ALSO FOUND THAT THE PROSECUTION HAD CONCEALED THE STATEMENTS OF WITNESSES WHO LATER GAVE STATEMENTS AGAINST THE ACCUSED. THE COURT HELD THAT THE EVIDENCE PRODUCED BY THE PROSECUTION WAS NOT LEGALLY ADMISSIBLE AND THAT THE BURDEN OF PROOF NEVER SHIFTED FROM THE PROSECUTION.
Issues: WHETHER THE PROSECUTION PROVED THE CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT.
Ratio Decidendi: THE COURT HELD THAT THE PROSECUTION FAILED TO PROVE THE CASE AGAINST THE ACCUSED BEYOND REASONABLE DOUBT. THE COURT NOTED THAT THE STATEMENTS OF THE EYEWITNESSES WERE INCONSISTENT AND CONTRADICTORY, AND THAT THERE WAS A DELAY OF 4-5 YEARS IN RECORDING THE STATEMENTS OF WITNESSES DURING THE INVESTIGATION. THE COURT ALSO FOUND THAT THE PROSECUTION HAD CONCEALED THE STATEMENTS OF WITNESSES WHO LATER GAVE STATEMENTS AGAINST THE ACCUSED. THE COURT HELD THAT THE EVIDENCE PRODUCED BY THE PROSECUTION WAS NOT LEGALLY ADMISSIBLE AND THAT THE BURDEN OF PROOF NEVER SHIFTED FROM THE PROSECUTION.
Final Decision: THE COURT DISMISSED THE APPEAL FILED BY THE STATE AND UPHELD THE ACQUITTAL OF THE ACCUSED BY THE TRIAL COURT.
Sanjay Kumar Gupta, J.
1. State is aggrieved of the acquittal earned by Manzoor Ahmed S/o Mohd. Afzal R/o Gund Thathar, Tehsil Banihal, District Ramban ( for brevity ‘accused’) vide impugned judgment dated 10.12.2013 of learned Principal District & Sessions Judge, Ramban in case FIR No.39/2003 registered in Police Station Banihal for the offences under Section 364/302/450/201 RPC and 7/27 Arms Act, therefore, Cr. Acq. Appeal No.150/2014.
2. Prosecution case is that on 08.04.2003 at about 11 PM, it was revealed from reliable sources that during the intervening night of 7th/8th of April, 2003 some unidentified masked militants armed with illegal arms and ammunition trespassed into the house of Abdul Latief and in furtherance of common intention beat and kidnapped his wife. It also surfaced that the abducted person was taken about 1 KM away at Jamihal and was shot dead.
On the receipt of this report, the police agency swung into action, registered FIR under Section 302/364 RPC and investigation started. During investigation, the militants could not be traced and case was closed untraced. However, subsequently re-investigation was ordered and the case was re-opened on the directions of SP Ramban on the basis of an application dated 02.04.2007 moved by husband of the deceased, Abdul Latief, who alleged that accused Manzoor Ahmed Khan alias Bilal was responsible for killing and kidnapping of innocent civilians. The accused, who was affiliated with banned outfit Hijbul Mujahidin, had killed deceased Manzoora Begum and tortured others. During re-investigation, the investigating agency besides legal formalities, also got statements of material witnesses recorded from the competent Court under Section 164-A Cr.P.C. and it revealed that accused Manzoor Ahmed an active militant belonged to banned militant group of Hijbul Mujahidin. During the intervening night of 7th/8th of April, 2003 he kidnapped deceased Manzoor Begum at gun point, took her 2 KM away and shot her dead on the spot. Subsequently, the militant-accused surrendered before 20 RR Banihal along with AK 47 Rifle. Accordingly, offences under Sections 364, 302, 201 RPC and 7/27 Arms Act were established against the accused and present report was filed. The accused was charge sheeted by the Court vide order dated 24.09.2008 for the commission of offences punishable under Sections 364/302/201 RPC and 7/27 Arms Act, to which he pleaded not guilty and claimed to be tried. Therefore, prosecution was directed to lead evidence. The prosecution has examined as many as 14 witnesses, a brief resume whereof is as under:-
PW-1 Abdul Latief has deposed that the accused was a militant. Since the militants used to torture him, he was running a Tea-Stall at Lakhanpur. He returned home for 11/2 months in the year 2003 because his cousin brother had died. He returned to Lakhanpur and received a telephonic information on 07.04.2003 and he was asked to return home. He returned on 08.04.2003 and found his wife dead. His children told him that accused Manzoor Ahmed Khan, kidnapped and killed their mother. He was threatened by the militants not to initiate any proceeding for the death of his wife. Accused had also threatened to kill him. He went to the police station after 4 days. His brother had already informed the police. Police got the postmortem of the deceased conducted.
On cross-examination by the defence counsel, he has stated that he was telephonically informed by his brother. He had gone to Pathankote when he received telephone call. Subsequently, his brother-in-law Abdul Latief, Qayoom Beigh came to Lakhanpur to call him. He could not meet them, but his brother-in-law informed his neighbourer to ask him to immediately return home. He was informed about the death of his wife at Lakhanpur. He was told by his children Parveena Bano, Naveena Bano and brother Abdul Rashid that accused murdered his wife. He reached home on 3rd day of the occurrence. The occurrence took place on 07.04.2003 and
