HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Cr. Appeal No.19/2006

1. Ghulam Hussain S/o Mohd Shafi aged about 34 years, 2. Mohd Farooq son of Mohd Shafi aged about 22 years, 3. Mohd Rafiq son of Mohd Shafi aged about 32 years, All residents of Village Nallahu Mallian Tehsil Ramnagar, District Udhampur.

......Appellant(s)

Through: Mr.Vishal Kapoor Advocate Versus State of J&K through Home Department, Jammu and Kashmir Government, Jammu.

...................... Respondent(s)

Through: Mr. Sumeet Bhatia, GA CORAM:

HON`BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

J U D G M E N T

1. This appeal is directed against the judgment of conviction dated 30^th October 2006 and order of sentence dated 1^st November 2007, passed by Principal Sessions Judge Udhampur (for short “Trial Court”) in a File No.17/Sessions titled State of J&K v. Ghulam Hassain and others, and for setting-aside the same

2. The judgment is being challenged, inter alia, on various grounds including that appellants have been falsely implicated in the case registered with the police station Ramnagar and were arrested on the basis of the false and frivolous FIR in the month of June 2004 and since then they are in custody; that the prosecution case against the appellants is that they have committed the murder of Sher Ali who happened to be their real brother, which is obviously unfounded, baseless and false and foisted on the appellants in order to screen the real offenders; that the trial court, after the protracted trial for more than two years, convicted the appellants for the offences u/s 304-11 RPC vide impugned judgment and the order of sentence in which the appellants have been sentenced for imprisonment for a period of seven years and fine of Rs 5000/- each; that judgment of the trial court clearly shows that same is based on misleading and improper appreciation of evidence which has been led before the trial court; that the trial court has failed to note the material contradictions and improbabilities in the prosecution evidence which have faulted the prosecution story and which evidence cannot be used for conviction; that the trial court has miserably failed to appreciate the evidence in the right perspective which has caused serious prejudice to the appellants and they are convicted for the offence which is not at all committed by them; that the whole story of the prosecution is unbelievable & unworthy of credence, consisting of partisan & inimically disposed witnesses only and the trial court has not appreciated the evidence of the defence witnesses though nothing could be extracted on their the cross examination to discredit its reliability; that trial court has failed to apply judicial mind on the facts that the deceased had a constant threat on his life by some persons known to his family and that he was found in an injured condition a few kilometres away from the appellants house & that too in a deserted place; that in this perspective trial Court also ignored the vital aspect of matter that the persons who spotted the deceased at the first instance have been intentionally withheld by the investigating agency though presence of 10-15 persons prior to the arrival of PW Wakil Singh has been admitted by the PW himself; that Trial Court has based conviction of appellants on the testimony of Prosecution witnesses who are none else than wife, daughter and son of deceased whose statements are not only unnatural but devoid of credibility on account of major contradictions which cut at the root of the case and show that they are only tutored witnesses.

3. I have heard both sides. I have also given my thoughtful consideration to the facts of the present appeal and also gone through the judgment and order passed by the Sessions Judge, Udhampur. I have also gone through the Trial Court record.

4. The allegations against the respondents/accused as per prosecution case are that on 19.5.2004, the husband of the complainant, deceased Sher Ali along with his wife and children had g