State of J&K vs Manzoor and Others

Bansi Lal Bhat, J.—Aggrieved of the acquittal of respondents (hereinafter referred to as ""accused"") of offences under Sections 302, 201 of

RPC and 7/27 Arms Act in case titled State v. Manzoor and ors. registered on the basis of FIR No. 64/2006 in terms of judgment of acquittal

dated 31.10.2014 rendered by learned Principal Sessions Judge Ramban, the State has filed the instant motion seeking leave to file appeal on the

ground that the Trial Court has mis-appreciated the evidence, misconstrued the law and overlooked the material evidence resulting in recording of

perverse findings. Prosecution story, based on a source information, is that during the intervening night of 4th /5th November 2006 some militants

carrying prohibited arms and ammunition barged into the house of Abdul Ahad Bhatt and fired indiscriminately resulting in sustaining of gunshot

injuries by Abdul Ahad Bhatt, his wife Fatima Begum and daughters Shada and Mubina which proved fatal. Case under FIR No. 64/2006 came

to be registered at Police Station Gool. The investigation revealed that militants- Manzoor Ahmed, Riyaz Ahmed, Mustaq Ahmed, Aijaz Ahmed

and Mumtaz belonging to banned militant outfit Hizbul Mujahedeen had forced their entry into the house of Abdul Ahad Bhatt with the common

intention of eliminating the deceased and killed the deceased Abdul Ahad Bhatt and his family members by resorting to indiscriminate firing. Charge

sheet was accordingly laid before the competent Court. It emerges from record that militants Riyaz Ahmed and Aijaz Ahmed had been liquidated

in an encounter which occurred after the alleged occurrence. Accused Mustaq Ahmed was found absconding and proceeding under Section 512

of CrPC were initiated against the accused. Trial Court discharged accused Manzoor and Mumtaz of offence under Section 121-A RPC for want

of complaint by the District Magistrate. Thus, charges for offence under Section 302/34 RPC and 7/27 Arms Act came to be slapped upon

accused Manzoor and Mumtaz who pleaded not guilty and claimed to be tried. Prosecution adduced evidence at the trial. Accused, while asked to

explain the incriminating evidence brought on record by prosecution, denied their involvement. However, they did not enter the defense. Upon

consideration of evidence adduced by prosecution learned Trial Court found that the prosecution had failed to establish guilt of accused beyond

any shadow of doubt. The impugned judgment of acquittal was rendered accordingly.

Heard and perused the record.

Prosecution has examined Dr. Farid Ahmed Wani at the Trial to prove the Post mortem reports of deceased. This witness has conducted Post-

mortem on the dead bodies of Ahad Bhat, Fatima, Shada Bano and Mubina Bano. In his opinion all four deceased died of hemorrhagic shock due

to gunshot injuries. The testimony of this witness provides clinching evidence to establish the factum of unnatural death of deceased which was

homicidal. So far as authorship of crime is concerned, admittedly, the identity of assailants was not known at the time of recording of FIR. Though

it is claimed that the complicity of accused was established during investigation, the investigating agency has not disclosed the direct or

circumstantial evidence it had discovered to rope in the accused. Neither any eye witness of the alleged occurrence except Farooq Ahmed has

been examined nor any extra judicial confession or recovery of arms and ammunition following any disclosures made by accused persons during

investigation has been described as mode of proof. Pw-Farooq Ahmed is the solitary eye witness to the alleged occurrence. It is in his testimony

that the deceased Abdul Ahad Bhatt was his uncle who had told him that the militants had accused him (the witness) of being an informer. The

witness claimed that he was advised by the deceased Abdul Ahad Bhatt to stay away from home as there was movement of militants. The witness

claimed that he was hiding behind a wall in an orchard when the accused barged into the house, inquired about him and had a long conversation

with deceased Ahad Bhatt and thereafter opened indiscriminate firing. The witness has been subjected to cross examination wherein he admitted

that he was frightened and thinking that the militants were after him, he ran away and hid in the bushes till next morning. He further claimed that in

the morning he made it to the STF Post Gool lying about 15 kms away from the place of occurrence and returned with the Police. On a close

scrutiny of testimony of this witness it appears that the witness has not seen the accused persons firing at the deceased. Despite killing of his close

relatives including his sister, the witness did not rush to spot after the assailants had left. He also didn't inform anybody about the occurrence while

on way to STF Post. He didn't disclose about the incident to any of his relatives or friends. He has no knowledge about the conduct of Post-

mortem on dead bodies of deceased. On marshalling of evidence, learned Trial Court found that Farooq Ahmed was not an eye witness to the

occurrence and his testimony, being most unnatural and untrustworthy on material aspects of the alleged occurrence, couldn't be made the basis for

recording conviction of accused. Learned Trial Court also found that there was no corroborative evidence as other witnesses Ghulam Mohd.

Bhatt, Master Ghulam Rasool and Abdul Majid hadn't supported his version thereby rendering it unsafe to rely upon his testimony.

On wading through the record, we are of the considered opinion that PW-Farooq Ahmed examined as the solitary eye witness at the trial is

unreliable and his testimony doesn't inspire confidence. His deposition excludes his presence from the place of occurrence and the manner and

circumstances attending upon his hiding in an orchard behind a wall and, subsequently, running away and not disclosing the incident to any relative

or friend render his version highly improbable and unworthy of credit. That apart, there is no corroboration to the testimony of PW-Farooq

Ahmed. It is queer that despite the presence of BSF Personnel and villagers on spot immediately after the occurrence, the witness did not disclose

the material facts relating to alleged occurrence including identity of assailants to them. The finding recorded by learned Trial Court in regard to

credibility of witness is perfectly justified. The finding cannot be termed erroneous muchless perverse.

The case depicts lack of sensitivity and professional skill on the part of investigating agency which has not even made any effort to conduct an

identification parade for identification of assailants. No effort has also been made to recover the prohibited arms and ammunition used in the

occurrence. We find no substantial and compelling reasons to take a view on evidence different from the one taken by learned Trial Court. The

SLAA is accordingly declined and resultantly the appeal is dismissed.