STATE vs MUZZAFAR HUSSAIN AND OTHERS

Feeling aggrieved of the judgment dated 19.03.2010 passed by the learned Principal Sessions Judge, Kathua, thereby acquitting all the respondents

(hereinafter to be referred as accused) of the charges punishable under Sections 302/ 307/ 341/ 396/ 397/ 398/120/120-B/171 RPC read with Sections

3/25 & 7/27 Arms Act, State has preferred the instant Criminal Acquittal Appeal, seeking setting aside of the acquittal judgment and has prayed

that the accused/respondents be punished according to law.Â

Prosecution case briefly is that on 01.03.2001 a matador bearing registration No.JK08-6191 was taking cash from District Treasury, Kathua to

Bani-Basohli. When the said matador reached Pareta Morha Khurkhu Morh, Tehsil Basohli, four/five persons waylaid the said matador and with an

intention to commit dacoity of the government cash, they started firing indiscriminately at the police party escorting the cash and matador as a result of

which two employees died on the spot, whereas the others were injured. On information received in the Police Station, Basohli, through reliable

sources FIR No.14/2001 for the commission of offences under Sections 302/307/341/397/511/121/121-A/120-B RPC read with Sections 3/25 & 7/27

Arms Act was registered and the investigation was entrusted to Dy. SP Showkat Hussain. He went on the spot and seized the matador. The dead

bodies were brought to the hospital at Basohli where the post mortem was conducted. The accused were arrested and interrogated and on

disclosure statement of the accused Zahoor Hussain, one pistol along with 10 live cartridges was recovered. On the disclosure statement of

accused Muzzafar Hussain, one wireless set, one mouser along with live cartridges was recovered. On the disclosure statement and at the instance

of accused Shahid Hussain, one AK 47 rifle and 3 magazines having 79 live cartridges, 2 hand grenades, one battery with cells, one shawl and one set

of army uniform were recovered and seized. On the disclosure statement of accused Shafayat Ali @ Bittu, one AK 47 rifle along with 3 magazines

having 53 live cartridges, one hand grenade, one torch with cells, one khokhari, one set of army uniform and two shawls were recovered and seized on

the spot. On the disclosure statement of accused Zahir Abaas, one wireless set and one grenade were recovered. The said ammunition was

sealed on the spot and sent to FSL for chemical examination. It was found during investigation that the accused with an intention to augment militancy

and commit dacoity of the government cash, fired indiscriminately at the matador as a result of which two persons died on the spot, whereas, the

others were grievously injured. After investigation, the final report was submitted in the Court of learned Judicial Magistrate First Class,

Mahanpur. Since the alleged offences were triable by the Sessions Court, he committed the case to the Sessions Court Kathua for trial of the

accused. Â

The accused were charge sheeted on 7.1.2004, they denied accusations and prosecution was directed to produce evidence.     Â

Prosecution in the case has cited as many as 19 witnesses and during the course of trial has examined PWs Uttam Chand, Satya Devi, Mahant

Ram, Mansa Ram, Karnail Singh, Rajesh Paul, Shiv Nandan, Gopal Dass, Abdul Rashid, Raj Kumar, Puran Chand, Baldev Raj, Dr. Vinod Sharma,

Krishan Lal, Ram Parshad, Balbir Singh.

Prosecution has based its case on eye witnesses as well as circumstantial evidence. Trial court after appreciating the evidence has acquitted all the

accused on the grounds that there was not an iota of evidence against the accused /respondents.

In memo of appeal, it has been stated that trial court has not appreciated the evidence on record in right perspective; that prosecution has

established the case against all accused by cogent means; that judgment is totally against law and facts.Â

We have re-appreciated all the evidence on record. We have also taken note of power of High Court in case of appeal against the acquittal Â

The scope of power of appellate court in case of acquittal has been highlighted by Apex Court in case  AIR 2014 SC 2200 in case titled

‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014], which read as under :-

Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord

Russell said, ""... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to

the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he

has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding

of fact arrived at by a Judge who had the advantage of seeing the witnesses."" The opinion of the Lord Russell has been followed over the years.

As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section

417 of the Criminal Procedure Code observed, ""............the High Court has full power to review the evidence upon which the order of acquittal was

founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the

findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and

compelling reasons.

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4],

Atley[5] , Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha

Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19],

Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is

not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal,

the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his

favour by the trial court,

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,

(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions

but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of

seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the

judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if

such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with

such conclusions is fully justified, and

(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the

judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in

the interference by the appellate court in the judgment of the trial court.

In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450, the Court has culled out the principles relating to the appeals from a judgment of

acquittal which are in line with what we have observed above.

Keeping in view above law in mind, now we will discuss the reasons given by court below in acquitting the accused persons, are correct or not.

The brief resume of statements of witnesses reads as under:-

PW Uttam Chand, SGC in Police, has stated that on 01.03.2001 he was posted at District Police Lines, Kathua and on said date he along with

other police personnel started for Bani-Basohli along with government cash; that when said matador carrying cash reached Kharkhu Morh, an

indiscriminate firing started on it as a result of which SGCTs Jagdish Singh and Hari Ram died on the spot and the said vehicle turned turtle; that they

loaded five cash boxes and injured in the bus and came to Mahanpur from where information was sent to Police Station, Basohli. Dy. SP and SHO

came on the spot; that five assailants fired indiscriminately at the matador and were wearing army uniform. This witness turned hostile. This

witness is also witness to seizure memos marked as EXPW4-4C and EXPW4-4C/1, seizure memo of rifle, dead bodies and personal search memos.

PW Satya Devi has stated that the accused are not known to her. Her statement was not recorded by the police and nothing stated against the

accused. This witness has been declared hostile by the prosecution.Â

PW Mahant Ram stated that his brother Hari Ram was Head Constable in the police and in the month of March, 2001, he was going from Kathua

to Basohli along with government cash and militants attacked his vehicle as a result of which he died on the spot. He is also witness to the receipt

of the dead body.

PW Mansa Ram also stated that Hari Ram was known to him. He was serving in police. He heard that he died in an attack of militants. The

receipt of the dead body EXPW9-MR bears his signature and it is correct.

PW Karnail Singh stated that the accused are not known to him. Nothing was seized in his presence. This witness has been turned hostile by

the prosecution.

PW Rajesh Paul stated that he was the driver of matador bearing registration No.JK08-6191 in the year 2001 and in the month of March, 2001, his

matador was used for carrying government cash from Kathua to Basohli. He along with conductor and other persons (11 persons total) were

travelling in the said matador. When they reached Kharkhu Morh, they were attacked and an indiscriminate firing started on their matador. He

does not know who fired on the matador. In the said firing, two police personnel died. He did not see those persons who fired at his matador.Â

This witness turned hostile.

PW Shiv Nandan has stated that on 01.03.2001, he was conductor of matador No.JK08-6191 and on the said date, police loaded treasury in his

matador and on reaching Kharkhu Morh, indiscriminate firing started as a result of which two police personnel died on spot. He could not identify

the accused, who fired at his matador. The police did not get the accused identified by him in identification parade. This witness also turned hostile

by the prosecution.Â

PW Gopal Dass stated that on 01.03.2001, he was posted in District Police Lines, Kathua and on the said day, they were taking government cash

from District Treasury Kathua to Bani-Basohli. When they reached Kharkhu Morh, indiscriminate firing started on the matador as a result of which

its both tyres were punctured and the vehicle stuck on the spot. Two police personnel died on spot. The persons who fired on matador were

wearing army uniform. They had covered their faces, as such, they could not be identified. This witness turned hostile.Â

PW Abdul Rashid is a constable in police, who has stated that in the month of March, 2001, the police seized one vehicle bearing registration

No.JK02K-4680 and the seizure memo was prepared, which bears his signature.

PW Raj Kumar is also police constable, who has stated that on 26.02.2001, he was posted as constable in Police Station Basohli. On said date,

at about 5.00/6.00 PM one maruti van bearing registration No.JK02M-50 passed by him and in the said van the accused-Muzzafar Hussain, Zahoor

Abaas and Munna were travelling. Thereafter, he came to Kathua Police Line for Refresher Course and on 15.02.2001, he returned back to

Basohli and at that time four persons were in the police station and he identified them. They were the same persons whom he saw travelling in the

maruti van. The memo of identification parade dated 16.04.2001 bears his signature. In cross examination, he has stated that the accused are

known to him because they live adjacent to the police station Basohli.Â

PW Puran Chand is the Executive Magistrate Ist Class, Billawar, has stated that in the month of April, 2001, he was posted as Executive

Magistrate First Class, Basohli, and on 03.04.2001, he was called to Police Station Basohli. He got the identification parade of the accused Zahoor

Hussain, Muzzafar Hussain, Shafayat Ali and Shahid Hussain and issued the certificates exhibited as EXPW14-PC, EXPW14-PC/1, EXPW14-PC/2

and EXPW14-PC/3. Again on 16.04.2001, he went to police station where identification parade of the accused Zahoor Hussain, Muzzafar Hussain,

Shafayat Ali and Shahid Hussain was again conducted. He issued the certificates exhibited as EXPW14-PC/4. In cross-examination, he has stated

that witnesses were already present when he reached Police Station. The certificates EXPW14-PC/4 and EXPW14-PC/5 are not in his hand

writing and he cannot say as to why they were written.

PW Baldev Raj is owner of the matador which was seized by the police and released in his favour. He is also witness to seizure memos

exhibited as EXPW-BR and EXPW10-RP.

PW Dr. Vinod Sharma is the Medical Officer, who examined injured Bowee Ram S/o Bishan Dass, Gopal Dass S/o Kaku and Shiv Nandan

Khajuria. He has given certificates exhibited as EXPW-32-VS and EXPW-32-VS/1.Â

PW Krishan Lal, Head Constable, stated that on 10.05.2001 he has examined five hand grenades and they were live grenades. He has issued

certificate exhibited as EXPW30-KL. In cross examination he has stated that he has not seen those grenades in the Court.

PW Ram Parshad has stated that he was posted in Police Station, Basohli, and some weapons were recovered from the accused Zahir Abaas and

Zahoor Hussain and he went on spot along with SHO. He is witness to memo of recovery of weapon from accused Zahir Abaas exhibited as

EXPW17-RP. He is also witness to recovery memo of weapon from Shahid Hussain exhibited as EXPW17/RP/1. He has also stated that

nothing was recovered from other accused. He has further denied the contents of disclosure statements made by Zahoor Hussain and Shafayat

Ali. This witness was declared hostile.

PW Balbir Singh has stated that he was posted as SPO with SDPO Basohli. On 04.04.2001, they had gone to Bani forest along with accused

Shafayat Ali and Shahid Hussain, who were in custody. Two ammunition boxes were recovered which were seized by the SHO. He is also

witness to seizure of maruti van. This is the only evidence produced by the prosecution.

From bare perusal of statements of the witnesses, it is evident that there is nothing substantial incriminating material against the accused persons.

All the eye witnesses namely PWs Uttam Chand, Karnail Singh, Shiv Nandan and Gopal Dass have failed to connect the accused persons with the

commission of alleged crime.

Investigating Officer in the case has not been examined. The disclosure statements made by the accused regarding arms and ammunition have

not been proved by the prosecution. The test identification parade of accused which was conducted vide EXPW14-PC, EXPW14-PC/1

EXPW14-PC/2 EXPW14-PC/3 EXPW14-PC/4 & EXPW14-PC/5 in the presence of Puran Chand, who was Executive Magistrate First Class,

Basohli have not been proved ; PWs Uttam Chand, Rajesh Paul, Raj Kumar, Chajju Ram, Uttam Singh and Harbans Lal are the attesting witnesses of

the said parade memos. Out of these witnesses, Chajju Ram, Uttam Singh and Harbans Lal have not been examined. PW Uttam Chand is a police

constable, but he has not supported the prosecution case. He has categorically stated that no test identification parade of the accused was conducted

in his presence during investigation. This witness turned hostile. Similarly, PW Rajesh Paul has stated that the test identification parade of the

accused was not conducted in his presence. This witness has also been turned hostile. PW Raj Kumar has identified four accused persons in

police station as he saw them in Maruti van in Basohli on 26.2.2001. This fact is not an incriminating material against the accused persons with

commission of crime, because occurrence took place in Kharkhu Morh and he had seen the accused moving in a car in Basohli town.

Mr. Moza, learned Addl. Advocate General, has not been able to pinpoint any infirmity in the impugned judgment, which would warrant indulgence

by this Court.

After rescanning the entire case of the prosecution, we do not find any reason, much less compelling and substantial reason, which would warrant

indulgence of this Court for the purpose of disturbing the well reasoned judgment already recorded by the trial Court, which is based on appreciation of

entire evidence on record. There is no perversity in the judgment of Court below.

The courts while appreciating the evidence in criminal cases have to see the degree of proof in maxim than that of civil case. The evidence

produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused, Court should not go on

convicting the accused.Â

In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities . The

law does not permit the court to punish the accused on basis of moral conviction or suspicion .The burden of proof never shift, it is always on

prosecution.  Â

Thus, following the well known cardinal principles of law in appreciating the facts in case of murder, we do not find any compelling or substantial

reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record.

Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.