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2017 Supreme(J&K) 974
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
BADAR DURREZ AHMED, ALI MOHAMMAD MAGREY, JJ.
Ghulam Nabi Mougal - Appellant
Versus
State of JK through SHO P/S Kupwara - Respondent
Cr. Appeal No. 09A of 2014 c/w B.A. No. 56 of 2014, Cr. Ref. No. 01 of 2014
Decided on : 26-10-2017
Advocate Appeared:
For the Appellant :Mr. S. T. Hussain, Sr. Adv. with Ms. Nida, Advocate
For the Respondent: Mr. M. A. Rathore, AAG
The main legal point established in the judgment is that suspicion and circumstantial evidence alone cannot result in conviction without tangible evidence indicating culpability beyond reasonable doubt.
Headnote:
Criminal Conspiracy - Conviction under Section 302 Ranbir Penal code and Sections 7/25 of the Indian Arms Act, 1959 - [120-B, 302, 379 Ranbir Penal code and 7/25 of the Arms Act] - The court discussed the circumstantial evidence, witness testimony, and the alleged confession to conclude that the prosecution failed to establish the case beyond reasonable doubt. The court highlighted the contradictions in witness statements, lack of motive, and unreliable recovery evidence, leading to the acquittal of the appellant.
Fact of the Case:
The appellant was convicted for the commission of the offence punishable under Section 302 Ranbir Penal code and Sections 7/25 of the Indian Arms Act, 1959, based on circumstantial evidence and witness testimony. The case arose from an alleged criminal conspiracy to obtain arms and ammunitions and the subsequent killing of the deceased.
Finding of the Court:
The court found that the prosecution failed to establish the case against the appellant beyond reasonable doubt. The witness testimony had contradictions, lack of motive, and unreliable recovery evidence, leading to the acquittal of the appellant.
Issues: The key issues revolved around the reliability of witness testimony, the existence of a criminal conspiracy, and the admissibility of the alleged confession.
Ratio Decidendi: The court's decision was influenced by the lack of clarity and contradictions in witness testimony, absence of motive, and unreliable recovery evidence, which led to the acquittal of the appellant.
Final Decision: The impugned order of conviction and sentence were set aside, and the appellant was acquitted of all charges. The appeal was allowed, and the appellant was directed to be released forthwith.
Badar Durrez Ahmed, J.
This appeal is directed against the judgment dated 04.04.2014 delivered by the Principal Sessions Judge, Kupwara in Case File No. 118/Session (date of institution 13.11.2004), whereby the appellant was convicted for the commission of the offence punishable under Section 302 Ranbir Penal code and Sections 7/25 of the Indian Arms Act, 1959. The said case arose out of FIR No. 25/2004 registered in Police Station, Kupwara. By a separate order on sentence dated 05.04.2014, the appellant was sentenced to life imprisonment (simple) with a fine of Rs. 5,000/-for the Commission of offence punishable under Section 302 Ranbir Penal code. He was also sentenced to simple imprisonment of five years for the offences punishable under Section 7/25 of the Indian Arms Act 1959. The sentences were, however, directed to run concurrently and the period of detention undergone by the convict during the investigation and trial was directed to be set-off against the term of imprisonment awarded as above. In default of payment of the fine, the convict was further directed to undergo simple imprisonment of three months. Since the sentence of life imprisonment was subject to confirmation by this Court as required under Section 374 of the Code of Criminal Procedure, the accompanying reference has been made to this Court for confirmation of the sentence of life imprisonment. The appellant is aggrieved by both the order of conviction and the order on sentence.
2. Initially there were three accused, the appellant (Ghulam Nabi Mougal), Shazad Ahmad Khan and Khurshid Ahmad. The other two accused have been acquitted on the benefit of doubt by the trial court.
3. The charge framed against the appellant was that on 02.09.2004, he, after entering into a conspiracy with the two other accused persons in Hotel Shamim, in order to obtain arms and ammunitions of Abdul Rashid Mougal S/o Abdul Rahim Mougal R/o Hyhama Manigah, conspired to kill him. The deceased Abdul Rashid Mougal was taken to a desolate place near Jummatari. The appellant, in the presence of the other accused, pushed the deceased, who fell on the ground. The appellant snatched the rifle of the deceased and, using the same, fired at the deceased. He also took a pistol, wireless set and rifle and kept these arms and ammunitions hidden in the houses of PW-14 and PW-15, which during investigation were recovered, on his disclosure statement. Consequently, the appellant was charged of having committed the offences under Sections 120-B, 302, 379 Ranbir Penal code and 7/25 of the Arms Act. The charge against the other two accused was the same as in the case of the appellant, the only difference being that the recovery of arms and ammunitions was stated to have been effected on the disclosure of the accused No. 1 (the appellant herein). The charge against the accused was denied. Consequently, the trial ensued and culminated in the impugned order of conviction, whereby, as aforesaid, the accused No. 1 (the appellant herein) was convicted of the offence under Section 302 Ranbir Penal code and 7/25 of the Indian Arms Act, whereas, the other two accused were acquitted.
4. The case is based on circumstantial evidence. The key witness on the part of the prosecution (which had listed 39 prosecution witnesses) is PW-1 Mst. Lethi (sister of the deceased), who is stated to have last seen the deceased in the company of the accused. Apart from this witness, another occurrence witness has been cited as (PW-2) Liyaqat Ali. (PW-6) Rustum Ali Khan is stated to be the seizure and recovery witness. (PW-8) Constable Mohammad Abass is stated as the witness concerning the disclosure statement, Constable Abdul Ahad Reshi (PW-11) is stated as a seizure and recovery witness and importantly Riyaz Ahmad Payer (PW-14) and Ghulam Hassan Payer (PW-15) were also stated to be occurrence and recovery witnesses. The other important witnesses will also be discussed as we go along.
5. First of all, let us examine the te
