Sarwar Khan vs Union Territory of Jammu and kashmir

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 67

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Rajnesh Oswal and Mohan Lal, JJ.
Sarwar Khan –Appellant
Versus
Union Territory of J&K – Respondent
Crl.A. (D) No.4/2021 c/w Crl.Ref. (L) No.2/2021, Crl.A. (AD) No.10/2022 and Crl.R. No.13/2022
Decided on : 31-8-2022

Advocates:
Advocate Appeared:
For the Appellant(s):Mr. Abhinav Sharma, Sr. Advocate with Mr. Muzaffar Iqbal Khan, Advocate
For the Respondent(s):Mr. Adarsh Bhagat, GA, Mr. A.P. Singh, Advocate, Mr. M. Zulker Nain Choudhary, Advocate for mother and brother of the deceased

Headnote:(A) Jammu and Kashmir Penal Code - Sections 302 and 304-I RPC, Arms Act - Section 27 - Conviction of appellant under Section 304-I RPC modified to 304-II RPC for the death of Maroof Khan; sentencing reduced from life imprisonment to 10 years; prosecution failed to establish motive or intention to kill; relationship between parties found cordial; appellant took deceased for hunting, resulting in accidental shooting. (Paras 64, 65)

(B) Evidence - Circumstantial evidence - Requirement for complete chain of circumstances to establish guilt; mere suspicion insufficient for conviction; absence of motive weighs in favor of the accused. (Para 60)

Table of Content
1. legal background and nature of appeals. (Para 1 , 2)
2. arguments regarding evidence and charges. (Para 3 , 4 , 5 , 6)
3. prosecution case details. (Para 7 , 8 , 9)
4. witness testimonies and remarks. (Para 10 , 11 , 12 , 13)
5. identification of events and witness accounts. (Para 14 , 15 , 16 , 17)
6. witness statements contributing to circumstantial evidence. (Para 18 , 19 , 20 , 21)
7. contextual background and relational dynamics. (Para 22 , 23 , 24 , 25)
8. expert witness contributions to case. (Para 26 , 27 , 28 , 29)
9. conduct of investigation and potential flaws. (Para 30 , 31 , 32 , 33)
10. scientific examination and evidence validity. (Para 34 , 35 , 36)
11. summary of legal principles applied. (Para 37 , 38)

JUDGMENT :

Rajnesh Oswal, J.-

The judgment dated 29.01.2021 passed by the court of learned Principal Sessions Judge, Poonch (hereinafter to be referred as the trial court), whereby the appellant has been convicted for commission of offence under sections 304-I RPC and 27/30 Indian Arms Act, along with the order dated 30.01.2021 by virtue of which the appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- for commission of offence under section 304-I RPC and further rigorous imprisonment for five years and also to pay a fine of Rs. 5,000/- for the commission of offence under section 27 of the Indian Arms Act, is the subject matter of appeal filed by the appellant-Sarwar Khan. An acquittal appeal has also been filed by the Union Territory of the Jammu and Kashmir bearing Crl A (AD) No. 10/2022 against the acquittal of the appellant of the charge under section 302 RPC. The brother and mother of the deceased have also filed a revision petition bearing Crl R No. 13/2022 against the aforesaid judgment and prayer has been made for convicting the appellant for commission of offence under section 302 RPC.

2. The judgment has been impugned by the appellant/accused on the ground that there was no cogent evidence regarding the commission of offence against him and further that there was no link connecting the appellant with the commission of offences.

3. In the acquittal appeal and revision petition, the contention of the appellant-Union Territory of Jammu and Kashmir and mother & brother of the deceased is that the appellant was required to be punished for commission of offence under section 302 RPC instead of 304-I RPC and further that the appellant was required to be sentenced with death penalty

4. Contentions of Appellant:

Mr. Abhinav Sharma, learned senior counsel assisted by Mr. Muzaffar Iqbal Khan representing appellant/accused has vehemently argued that the case of the prosecution was based upon circumstantial evidence and the prosecution has miserably failed to establish that the appellant had killed the deceased by firing from the 12 Bore Rifle and the prosecution also could not prove the motive behind the killing of the deceased. He further argued that even if, it is assumed that the deceased was killed with the gunshot of the appellant, even then the prosecution has not been able to demonstrate that the appellant had either any intention to kill the deceased or cause such bodily injury, which in the ordinary course of circumstances, would have led to the death of the deceased. He also laid stress that the complete chain of the circumstances as projected by the prosecution during the trial could not be proved by the prosecution, as such, the appellant could not have been convicted even for commission of offence under section 304 Part-1 RPC. He also submitted that the prosecution is required to prove its case beyond reasonable doubt and the prosecution cannot derive any benefit out of the weakness of the defence of the appellant. Learned counsels for the appellant has relied upon the judgments of Apex Court in Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.

5. Contentio