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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan, Sanjay Kumar Gupta, JJ.
State of J&K – Petitioner
Vs.
Naresh Kumar and others – Respondents
CRAA No. 30 of 2006 c/w CRAA No. 04 of 2008
Decided On : 03-08-2018
Acquittal Appeals - Criminal Law - Sections 302/34 RPC, 4/25, 5/25 Arms Act - The court discussed the principles of appeals against acquittal and emphasized the need for clear and convincing evidence to sustain a conviction. The court also highlighted the importance of re-appreciating the evidence in cases of acquittal and the requirement for corroboration of identification evidence. The judgment focused on the contradictions in witness statements and the lack of corroborative medical evidence, leading to the acquittal of the accused persons.
Fact of the Case:
The case involved the acquittal of accused persons charged under Sections 302/34 RPC and 4/25, 5/25 Arms Act for the murder of Gani Ahmed. The prosecution's case was based on witness testimonies, including that of the deceased's wife, Parveen Akhtar.
Finding of the Court:
The court found that the evidence provided by the prosecution, particularly the witness testimonies, was not clear, convincing, or corroborated by medical evidence. The court highlighted contradictions in witness statements and the lack of corroboration, leading to the acquittal of the accused persons.
Issues: The key issues revolved around the credibility of witness testimonies, the need for corroboration of identification evidence, and the contradictions in the statements of the key witness, Parveen Akhtar.
Ratio Decidendi: The court emphasized the need for clear, cogent, and convincing evidence to sustain a conviction, particularly in cases of heinous offences. It also highlighted the requirement for corroboration of identification evidence and the importance of re-appreciating the evidence in cases of acquittal.
Final Decision: The court dismissed the appeals and upheld the trial court's acquittal of the accused persons, citing the lack of clear-cut evidence and the absence of perversity in the trial court's judgment.
1. These two appeals are directed against the judgment and orders dated 23.11.2005 and 15.10.2007 passed by the Sessions Judge, Udhampur in File No. 38/Sessions and 62/Sessions respectively, acquitting the appellants of the charge under Section 302/34 RPC. The case arose out of FIR No. 64/2002 registered at Police Station Rehmbal.
2. At the outset, it would be appropriate to mention here that after filing of the charge sheet, the trial was concluded against two of the accused persons as the third accused, namely, Naresh Kumar, absconded and was proceeded under Section 512 Cr.P.C. The charge was accordingly framed against the other two accused persons under Sections 302/34 RPC and 4/25, 5/25 Arms Act and they were accordingly tried. After their acquittal vide order and judgment dated 23.11.2005, the absconding accused, Naresh Kumar surrendered before the trial Court and he was separately tried and vide judgment and order dated 15.10.2007 he too was acquitted of the charges. The State has preferred CRAA No. 30/2006 against the judgment and order dated 23.11.2005, acquitting two of the accused persons and CRAA No. 04/2008 has been preferred against the acquittal order dated 15.10.2007 acquitting third accused, hence the two acquittal appeals.
3. The persecution case, as pleaded in the challan, is that on 19.08.2002 information was received at Police Station Rehmbal at 7 PM that two non-Sikh and one Sikh persons came on a motor cycle bearing Registration No. JK02G-6798 and attacked one Gani Ahmed son of Hakim Din, who was sitting in the shop of one Sham Lal at Kehmbal Danga. One of the persons fired whereas the others inflicted Sharpe edged weapon injuries on the person of Gani Ahmed due to which he was seriously injured and succumbed to the injuries on spot. After registration of the FIR the Investigating Officer visited the spot of occurrence where the dead body of Gani Ahmed was lying in a pool of blood. The site plan was prepared and after completing the formalities the dead body was sent for the post-mortem. The prosecution case was that the accused persons have attacked Gani Ahmed at the shop of Sham Lal where he was purchasing cloth for his wife along with his minor child. During the investigation it was found that accused Naresh Kumar alias Billa entered the shop of Sham Lal whereas the other two accused persons kept waiting outside and Gani Ahmed was dragged by Naresh Kumar out of the shop, the other accused persons inflicted Kirch blow on the person of Gani Ahmed and accused Naresh Kumar was alleged to have fired at him. The wife of the deceased, namely, Parveen Akhtar continued to raise hue and cry for help but nobody intervened. It was the further case of the prosecution that after accomplishing their job, i.e. killing Gani Ahmed the accused persons fled away from the place of occurrence in a Matador No. JK02E- 4259 and scooter No. JK02N-2023, by leaving the motor cycle bearing registration No. JK02G-6798 on spot, which were seized during investigation.
4. After investigation was completed the Challan was presented against two accused persons, as the third accused remained absconding as stated above. The two respondents were charged and after they claimed innocence, the trial against them ensued.
5. It would be appropriate to mention here that during the pendency of these appeals, one of the respondents, namely, Yash Pal alias Yashu has expired on 14.09.2008 and by order dated 19.07.2018 this Court had directed that his name be deleted from the array of the respondents.
6. At the first instance, we will be considering CRAA No. 30/2006 which has been preferred against the order of acquittal dated 23.11.2005 insofar as respondent-Jatinder alias Goldi is concerned. The prosecution listed as many as 30 witnesses; however, 26 out of them were examined.
7. Court below after appreciating the evidence came to conclusion that all materials witnesses have not supported the prosecution version and presence of eye witness Parv
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