HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. CRA No. 55 OF 2009 AND CRREF No. 78 OF 2009 Mohammad Taj Petitioners State of J&K Respondent !M/S K. L. Pandita and Samir Pandita, Advocates ^Mr. A. H. Qazi, AAG Honble Mr. Justice Virender Singh, Judge Honble Mr. Justice Mansoor Ahmad Mir, Judge Date: 16.11.2010 :J U D G M E N T :
Per Mansoor J.
This criminal appeal is directed against the judgment and order of
conviction dated 30th of September, 2009 and order dated 1st of October, 2009,
whereby accused was sentenced to death subject to confirmation of this court, on
the grounds taken in the memo of appeal.
BRIEF FACTS:-
Police Station Budhal received information from reliable sources that on 9th
of October, 2005 at about 7.00 pm a group of militants entered into the house of one
Munshi Ram S/o Nihal Chand R/o Raj Nagar Budhal and killed five persons by
slitting their throats. This report set the police in motion. FIR No. 46/2005 for the
commission of offences punishable under Sections 302, 120-B, 121, 122 of Ranbir
Penal Code, (hereinafter for short as RPC) and Section 4/27 Arms Act came to be
registered. Mohammad Bashir, ASI, was entrusted with the investigation; he
conducted the investigation and during investigation prepared site-plan of the place
of occurrence, seized dead bodies of the five persons, prepared seizure memos, took
photographs of the place of occurrence and of dead bodies and samples of ordinary
and blood stained soil (earth) were taken from spot. The team of doctors conducted
postmortem, blood samples were taken during conducting of postmortem and were
sent to FSL for opinion. The dead bodies were handed over to their relations.
The Investigating Officer prepared a final report in terms of Section 173 of
Criminal Procedure Code (hereinafter for short as Cr.P.C) and came to the prima-
facie conclusion that on 4th of October, 2005, accused Altaf Hussain met
Mohammad Yaseen Alias Amir Khan, Sanghar Pathan and Shakeel Ahmad in the
Guhar forests and stayed during the intervening night of 4/5th October, 2005 in the
house of Mohammad Bashir S/o Saleh Mohammad R/o Mahora Gabbar. On 5th of
October, 2005 Altaf got clothes of the aforesaid persons washed by Ashiq Ali S/o
Hassan Mohammad and also arranged food/fruits from Mohammad Tariq S/o
Mohammad Bashir. In the intervening night of 5th/ 6th October, 2005 they stayed in
the house of Mohammad Iqbal S/o Raj Mohammad R/o Mahora Gabbar and at
about 11. pm accused Mohammad Taj (nephew of Mohammad Iqbal) reached there.
Thereafter they stayed in forest (Chakhari) in order to trace-identify the informers.
In the intervening night of 9th/ 10th of October, 2005 all the five persons i.e. Altaf,
Mohammad Taj and aforesaid three militants entered into the house of Munshi Ram
and Sobha Ram and killed Munshi Ram, his two sons Rajender Kumar alias Kala
and Hans Raj and Sobha Ram his son Suresh alias Vicky by slitting their throats.
In terms of final report submitted by Investigating Officer under Section 173
Cr.P.C., three militants namely Mohammad Yaseen, Sanghara Pathan, Shakeel
Ahmad were prima-facie found to be involved in the commission of offences
punishable under Sections 302, 120-B, 121, 122 RPC and 4/27 Arms Act, whereas
the offences punishable under Section 302/120-B of RPC were prima-facie proved
against Mohammad Taj and Altaf Hussain.
Three militants were absconding whereas Mohammad Taj and Altaf Hussain
were arrested, challan was presented before the court of Chief Judicial Magistrate,
Rajouri, committed it to the court of Sessions Judge, Rajouri for trial after drawing
proceedings against the said militants in terms of Section 512 Cr.P.C.
Appellant and Altaf Hussain came to be chargesheeted, they denied the
charges and claimed to be tried.
Prosecution examined PW 3 Mst. Amro Devi, PW 4 Mst. Jatti Devi, PW 5
Mst. Shanti Devi, PW 6 Babu Ram, PW 7 Krishan Lal, PW 9 Munshi Ram, PW 10
Mohammad Rafiq, PW 11 Mohammad Iqbal, PW 12 Mohammad Bashir, PW 13
Mohammad Tariq, PW 14 constable Ramesh Kumar, PW 15 Dr. Mohammad
Ashraf.
Prosecution has failed to examine PWs 6, 8, 16, 17, 18 and 19.
Accused Altaf Hussain and Mohammad Taj have not examined any witness
in defence.
In terms of Section 273 of Cr.P.C, the trial court after hearing arguments,
acquitted Altaf Hussain, while as accused Mohammad Taj came to be convicted and
sentenced to death only for the commission of offence punishable under Section
302 RPC.
Feeling aggrieved Mohammad Taj questioned the same by the medium of
this appeal. The trial court has made a reference for confirmation of the death
sentence. Brief resume of evidence of the prosecution:-
P.W. No. 3 Amro Devi deposed that she knows the accused present before
the court. Near about nine months ago at about 7.00 p.m. she and her husband were
sitting under the Tarpolene Sheet. Four persons came, out of them three were
militants and fourth one was accused Mohammad Taj who was accompanying
them. They asked her and her family members whether they had their meals. They
replied that they had cooked the meals in the house of Sobha Ram. All of them went
into the house of Sobha Ram. Accused Taj and other two militants out of three
entered into the house of Sobha Ram. One militant stayed outside the house.
Militants who had gone inside the house had already taken Mushi Ram, Sobha
Ram, Suresh, Rajinder Kumar and Hans Raj with them. One militant came outside
the house while as accused Taj and another militant remained inside the door. The
militant who came out demanded from them instrument of wood cutting. On their
refusal he went inside the cowshed and brought out two sickles. She requested the
militants not to kill them and were ready to leave all property. The militant who
brought sickles pushed aside the witness and went inside the house. They heard
noise of slitting/ cutting. She fell down unconscious and gained senses
(consciousness) after some time. Thereafter those persons asked Jatti Devi and
Shanti Devi to go and see inside that five persons were killed by the militants. In
cross-examination she has stated that Taj was bearing mask/ veil on his face and
three militants were without mask/ veil.
PW No. 4 Mst. Jatti Devi has deposed that she knows the accused present in
the court. Occurrence took place last year prior to nine months at about 7.00 pm.
They were residing in a tent because their house was damaged. Four persons came
and asked them about the meals. They went to Sobha Rams house, out of these
four persons three were having arms and accused Taj was bearing mask on his head
and face. Militants took four persons namely Hans Raj, Rajinder Kumar, Sobha
Ram and Munshi Ram inside the room. Accused Mohammad Taj called Rajinder
Kumar. They bolted the room from inside. One militant asked them and the children
to remain near the kitchen. They tied the hands of the aforesaid five persons one of
the militants came outside and asked for axe and sickles and brought out two sickles
from the cowshed. They were gheored by one militant and other three militants slit
the throats of aforesaid five persons. Taj was also in the group of those three
militants who murdered the aforesaid five persons. Accused Taj was bearing mask
on his head and face. However, she easily identified him by his voice.
PW No. 5 Shanti Devi:- has deposed that she knows the accused present in the
court. Prior to one and a half year at about 7.00 pm she was cooking meals when
four persons entered into their house, one of them was Taj. She does not know the
other three persons. Accused Altaf was not present on spot. They were all armed.
They forcibly entered into their house and took her husband and son, Munshi Ram,
Hans Raj, Rajinder Kumar inside the room and they closed the room. One person
who was having long hair came outside and took a sickle with him and killed all
those persons who were taken inside. Thereafter accused locked them in another
room. In cross examination she has deposed that accused were not bearing veils.
They have not seen who was murdered by whom.
PW No. 7 Krishan Lal:- has deposed that he came on spot after deceased were
murdered by slitting of throat. He admitted the contents of seizure memos of dead
bodies, samples of soil, clothes of deceased as true and correct and exhibited as
EXPW7 to EXPW7/Q. He has not admitted the contents of seizure memo relating
to seizure of clothes of accused Mohammad Taj. He admitted the seizure of one
sickle-EXPW7/10. In cross examination he has deposed that he was not present in
the house on the date of occurrence and does not know who murdered the deceased.
PW 9 Munshi Ram is not witness to occurrence. However, he deposed that he came
on spot next day. Sickle was seized on spot in his presence, admitted the signatures
on EXPW7/A, EXPW7/L to EXPW7/P.
PW 10 Mohammad Rafiq: has deposed that he is a chowkidar of village Rajnagar
Budhal. Last year in the month of October, militants murdered 10 people belonging
to the family of Munshi Ram and Kartar Singh. Police came on spot and seized the
dead bodies. Weapon of offence i.e. one sickle having wooden handle was seized,
EXPW7/10 was prepared. He identified the sickle shown to him in the open court
and came to be marked as R. In cross examination he has deposed that documents
i.e. seizure memos prepared were blank and his signatures were taken in one go in
Police Station. Being chowkidar of village he has knowledge that militants are
involved in the killings of the said persons and not the accused present in the court.
PW 11 Mohammad Iqbal:- has deposed that he has no knowledge about the
occurrence and came to be declared hostile. PP was permitted to cross-examine
him. On cross examination he has deposed that in the intervening night of 5/6th
October, 2005 he was present in his house. It is wrong that in next morning three
militants including accused Altaf entered into his house and demanded meals by
threatening.
PW No. 12 Mohammad Bashir:- has deposed that he has no knowledge about the
occurrence and came to be declared hostile. PP was permitted to cross-examine
him. On cross-examination PP was not in a position to extract any incriminating
material against the accused. Virtually he has deposed nothing against the accused.
PW No. 13 Mohammad Tariq:- has deposed that he has no knowledge about the
occurrence, the witness was declared hostile and PP was permitted to cross-examine
him. During cross-examination he has deposed nothing against the accused.
PW No. 14 Constable Ramesh Kumar:- has deposed that he is not knowing the
accused present in the court. In the month of October, 2005 he was posted at Police
Station Budhal, he took the sealed packets as per the directions of the Investigating
Officer to FSL Jammu.
PW No. 15 Dr. Mohammad Ashraf:- has deposed as under:-
That on 10.10.2005 I conducted the post mortem on the dead body of
Munshi Ram S/o Nihal Chand R/o Rajnagar Mohra Dhar, Budhal, Rajouri at 1 PM
identified by Babu Ram S/o Karam Chand R/o Rajnagar and Munshi Ram S/o
Karam Chand R/o Rajnagar Budhal brought by ASI Mohammad Bashir P/s Budhal.
On examination and during autopsy, I found the following injuries:
1. Big incised wound over anterior aspect of neck just below the hyoid bone with
injuries over Oesophagus, trachea and both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the case of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/1.
On the same day, I also conducted the postmortem on the dead body of
Rajinder Kumar son of Munshi Ram R/o Rajnagar Mohra Dhar, Budhal Rajouri
identified by Babu Ram S/o Karam Chand R/o Rajnagar Budhal and Munshi Ram
S/o Karam Chand, Rajnagar Budhal, brought by ASI Mohammad Bashir P/s
Budhal.
On examination and during autopsy, the following injuries were found:-
1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/2.
On the same day, I conducted the postmortem of Hans Raj S/o Munshi Ram
R/o Rajnagar Mohra Dhar Budhal, Rajouri, identified by Babu Ram S/o Karam
Chand, R/o Rajnagar Budhal and Munshi Ram S/o Karam Chand R/o Rajnagar
Budhal, brought by ASI Mohammad Bashir P/s Budhal.
On examination and during autopsy, I found the following injuries:
1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The certificate placed on the
file is in my hand writing and bears my seal and signature. The contents are correct.
It is exhibited as EXPW-15/3.
On the same day, I also conducted the postmortem of Suba Ram S/o Karam
Chand R/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S/o
Karam Chand R/o Rajnagar, Budhal and Munshi Ram S/o Karam Chand R/o
Rajnagar, Budhal, brought by ASI Mohammad Bashir P/S Budhal.
On examination and during autopsy I have found the following injuries:
1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/4.
On the same day, I have also conducted the autopsy of Suresh Kumar S/o
Soba Ram R/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S/o
Karam Chand R/o Rajnagar, Budhal and Munshi Ram S/o Karam Chand R/o
Rajnagar, Budhal, brought by ASI Mohammad Bashir P/S Budhal.
On examination and during autopsy I found the following injuries:
1. Big incised wound over anterior aspect of neck just below the hyoid bone
with injuries over Oesophagus, trachea ands both sides of large vessels and vagus
nervous. In my opinion after conducting the autopsy of the deceased the cause of
death is irreversible hemorrhage shock due to injuries. The postmortem report on
the file is in my hand writing and bears my seal and signature. The contents are
correct. It is exhibited as EXPW-15/5.
On cross examination, no question was put to the witness by the Ld counsel
for accused, although opportunity was granted.
Prosecution has not examined PWs 6, 8, 16, 17, 18 and 19 who are
important and material witnesses.
Neither the names of FSL experts are figuring in the witness calendar nor
examined by the prosecution as witness(es).
According to the prosecution story appellant Mohammad Taj and Altaf
Hussain had hatched a conspiracy with other three accused-three militants and
Investigating Officer found them involved in the commission of offence punishable
under Section 302 read with 120-B, RPC. Accused Altaf Hussain came to be
acquitted and State has not questioned the same, thus the acquittal of Altaf Hussain
has attained finality. In this background the question is whether the conviction
recorded and sentence awarded is legally tenable?
We are of the considered view that the entire case of the prosecution is
shrouded in doubts and the very foundation of the case i.e hatching of criminal
conspiracy by Mohammad Taj and Altaf Hussain has not been proved by the
prosecution for the following reasons:-
CRIMINAL CONSPIRACY:-
The statements of PWs 3, 4, 5 and 10 are relevant. None of them have said
about hatching of conspiracy. Neither there is direct evidence nor circumstantial
evidence on the file. The story of the prosecution is that accused Altaf Hussain
accompanied three militants at the first instance i.e. on 4th and 5th of October and
thereafter on 5th and 6th of October, accused Mohammad Taj met them, but failed to
prove. PW Mohammad Rafiq has deposed that only militants were involved in the
commission of offences and not the accused Mohammad Taj and Altaf Hussain
present in the court. Altaf Hussain accused stands acquitted and appellant has not
been convicted by the trial court for the commission of offence punishable under
Section 120-B RPC and the State has not questioned the same.
It is apt to reproduce para 57 of the judgment in case Musheer Khan vs State
of Madhya Pradesh, 2010 AIR SCW 996.
57. As a result of acquittal of A-1, A-2, A-3 and A-6, the conspiracy theory
of the prosecution in this case fails. A substantial part of the prosecution
case has not been accepted on valid grounds either by the High Court or by
this Court. Thus, a very vital part of the prosecution case is finally knocked
off. As the prosecution fails to prove its case of conspiracy, the motive angle
behind the alleged crime committed by A-4 and A-5 disappears. The
prosecution case is that A-4 and A-5 are hired criminals and were engaged
on payment by A-1, A-2, A-3 and A-6 for killing the deceased. The acquittal
of A-1, A-2, A-3 and A-6 which is upheld by this Court casts a serious
doubt on the entire prosecution and its case against A-4 and A-5 suffers a
serious setback.
Even otherwise prosecution has failed to bring charge of conspiracy home to
appellant Mohammad Taj. Apex Court in the cases titled as B. H. Narasimha Rao
versus Government of Andhra Pradesh reported as AIR 1996 SC 64 Para 4, Hardeo
Singh versus State of Bihar and others reported as AIR 2000 SC 2245, Para 10,
State of Kerala versus P. Sugathan and another reported as AIR 2000 SC 3323 Para
17, Saju versus State of Kerala reported as AIR 2001 SC 175 Para 16, Hira Lal Hari
Lal Bhagwati versus C.B.I. New Delhi reported as AIR 2003 SC 2545, Para 37,
Ram Narain Poply versus Central Bureau of Investigation reported as AIR 2003 SC,
2748 Paras 345 and 349 has laid down the test. It is apt to reproduce Para 345 of
AIR 2003 SC 2748 herein:-
345. No doubt in the case of conspiracy there cannot be any direct
evidence. The ingredients of offence are that there should be an agreement
between persons who are alleged to conspire and the said agreement should
be for doing an illegal act or for doing illegal means an act which itself may
not be illegal. Therefore, the essence of criminal conspiracy is an agreement
to do an illegal act and such an agreement can be proved either by direct
evidence or by circumstantial evidence or by both, and it is a matter of
common experience that direct evidence to prove conspiracy is rarely
available. Therefore, the circumstances proved before, during and after the
occurrence have to be considered to decide about the complicity of the
accused.
It is also profitable to reproduce Para 10 of AIR 2000 SC 2245 :-
10. . As a matter of fact some connecting link or connecting
factor somewhere would be enough for framing of charge since framing of
charge and to establish the charge of conspiracy cannot possibly be placed at
par: To establish the charge of conspiracy, there is required cogent evidence
of meeting of two minds in the matter of commission of an offence-in the
absence of which the charge cannot be sustained-.
(Para 37 of AIR 2003 SC 2545)
CONTRADICTIONS:-
The Investigating Officer came to the conclusion that Altaf Hussain and
Mohammad Taj were not directly involved in the commission of offence punishable
under Section 302 RPC but were involved with the aid of Section 120-B RPC and
accordingly submitted the final report in terms of Section 173 Cr.P.C. But despite
of that trial court has convicted the appellant Mohammad Taj for the commission of
offence punishable under Section 302 RPC holding that direct evidence was
available. Amro Devi, Jatti Devi and Shanti Devi, PWs 3, 4 and 5 respectively are
the only eye witnesses and their evidence is contradictory on material particulars.
Amro Devi and Jatti Devi have deposed that Mohammad Taj was bearing mask/
veil on his head and face while as three militants were not bearing mask/ veil.
Shanti Devi has deposed that all the accused were without masks; now whom to
believe? Whether the statement of PW Shanti Devi is correct or PW Amro Devi is
correct. PW Shanti Devi has specifically stated that accused Altaf Hussain was not
present on spot. PW Jatti Devi and Amro Devi have said nothing on this count; PW
10 Mohammad Rafiq has deposed that Mohammad Taj and Altaf Hussain were not
involved in the commission of offence and even he was not declared hostile by the
prosecution. His statement gets corroboration by the acquittal of Altaf Hussain and
cannot be brushed aside in the given circumstances. The Apex Court in the cases
titled Harkirat Singh versus State of Punjab reported as AIR 1997 SC 3231 Para 3,
Kalyan and others versus State of U.P. 2001 Cr.L.J 4677 Para 19, Krishna Mochi
and others versus State of Bihar AIR 2002 SC 1965, Para 94, State of U.P. versus
Bhagwant and others AIR 2003 SC 2293 Para 7, State of Madhya Pradesh versus
Chamru @ Bhagwandas etc. etc. 2007 AIR SCW 4260 Para 10 has laid down tests.
It is apt to reproduce Para 3 of AIR 1997 SC 3231 herein:-
3. Having regard to the facts that except the evidence of the
two eye-witnesses there is no other legal evidence to connect the appellant
with the offences for which he has been found guilty and that in view of the
material contradictions the evidence of the two eye-witnesses cannot be
safely relied upon the appellant is entitled to the benefit of doubt. We,
therefore, allow this appeal and set aside the order of conviction and
sentence recorded against the appellant. The appellant, who is on bail, is
discharged from his bail bonds.
WEAPON OF OFFENCE.
The case of the prosecution is that accused used weapon of offence i.e.
sickle while as PWs 3, 4 and 5 have deposed that two sickles were taken by one
militant from the cowshed and used for the commission of offence. If the statements
of the said witnesses are to be believed then the prosecution story is not correct and
true.
The question is who used the seized weapon and what about second sickle?
There is evidence on the file that three militants and appellant (whose identity has
not been established) were on spot out of the three, one militant came out, took two
sickles and used the same. None of the witnesses have said that Taj was a militant.
There is no evidence on the file that Taj has used the sickle(s). All these doubts
would have been cleared by the Investigating Officer who has not been examined.
The fingerprints of Mohammad Taj have also not been taken in order to ascertain
whether he has used the seized sickle. The seized sickle has not been put to doctor
in order to prove that the injuries sustained by the deceased were caused by the said
sickle. Even that question has not been put to the doctor.
Prosecution has neither arrayed the expert of FSL in the witness calendar as
a witness nor has been produced before the court in order to prove that the seized
sickle was the same which was produced before the court and was having the blood
stains. Virtually the prosecution has failed to prove the FSL report. It is apt to
reproduce relevant portion of Para 7 and 8 of the Apex Court judgment reported as
AIR 2002 SC 2707 titled Mathura Yadav alias Mathura Mahato and others versus
State of Bihar:-
7. We notice that the Courts below have implicitly accepted the
evidence of PWs, 1, 2, 4 and 5 without properly considering the deficiencies
and the contradictions in their evidence. Of course, in regard to the nature of
the attack, the injuries suffered by the deceased and the individual overt act
of the accused person, there is a possibility of some discrepancy which
should not in the normal course affect the prosecution case.It is also
relevant to notice the fact that the seizure of the blood-stained mud and grass
is not established beyond reasonable doubt and there has been no recovery
of any weapon from the accused..
8. In the above doubtful circumstances, we consider it unsafe to
place reliance on the evidence produced by the prosecution to hold the
appellants guilty for offence charged against them.
NEW STORY
Keeping in view the discussion made hereinabove the witnesses have put a
new story different than the one given in the final report. Thus appellant is entitled
to benefit of doubt. It is apt to reproduce Para 175 of the Apex Court judgment
reported as AIR 2003 SC 2748 titled as Ram Narain Poply versus Central Bureau of
Investigation:-
I would also state that it is not properly understood by the
prosecuting agency that by introducing or adding a new story in a
criminal prosecution, in most of the cases, it adversely affects or
destroys the prosecution case. Not only it creates doubts with regard
to that part of the prosecution version but on occasions casts doubt
about the motive. Result is under our criminal jurisprudence, benefit
of doubt may go to the accused.
IDENTITY OF THE ACCUSED
The prosecution has failed to prove the identity of Mohammad Taj. As
discussed hereinabove one version is that he was wearing veil but other is he was
not wearing veil. Amro Devi has not disclosed that how she identified appellant
despite wearing mask. Mst. Jatti has said that she identified him by voice. The
statements of PWs 3, 4 and 5 are contradictory on material particulars; they are
interested and close relatives of deceased. Their evidence is to be scrutinized very
carefully and cautiously. The Apex Court in case titled State of Bihar versus
Brahmdeo Prasad & Ors reported as AIR 1980 SLJ SC 9 has held that if the identity
of the accused is doubtful, accused is entitled to acquittal.
In the given circumstances the identification parade was a must which has
not been conducted. PW Rafiq has categorically said that Altaf Hussain and
Mohammad Taj were not there. Thus it can be safely held that identity of
Mohammad Taj has not been established.
MATERIAL WITNESSES WITHHELD
The prosecution has withheld the material prosecution witnesses i.e. PWs 6,
8, 16, 17, 18 and 19. PW 6 Babu Ram is a witness of circumstances, seizure memo
and Fard Superdnama; PW 8 Jagan Nath is a witness of circumstances and seizure
of dead bodies; PW 16 is a Naib Tehsildar, in his presence the seized pockets were
resealed; PW 17 Mohammad Bashir is the Investigating Officer, who is a star
witness; PW 18 Shri Veer Singh is the SHO who has recorded satisfaction that the
investigation conducted by the Investigating officer was to his satisfaction; PW 19
Kewal Krishan, Inspector, has prepared the Final report in terms of Section 173
Cr.P.C. In the given circumstances adverse inference is to be drawn against the
prosecution. Apex Court has laid down the same principle in cases titled Bahadur
Naik versus State of Bihar reported as AIR 2000, SC 1582, Para 2, and Raj Kishore
Jha versus State of Bihar and others, AIR 2003, SC 4665 Para 11. It is apt to
reproduce said Paras herein:-
2. The appellant has not been able to shake the credibility of the eye-
witness. No material contradiction in the case of the prosecution has been
shown to us. Under facts and circumstances, the non-examination of the
Investigating Officer as a witness is of no consequence. It has not been
shown what prejudice has been caused to the appellant by such non-
examination.
(AIR 2003 SC 4664 Para 11)
Mere non-examination of Investigating Officer does not in every
case cause prejudice to the accused or affects the creditability of the
prosecution version. In Ram Dev and another v. State of U.P (1995 Supp (1)
SCC 547), it was noted that non-examination of the Investigating Officer
does not in any way create any dent in the prosecution case much less affect
the credibility of otherwise trustworthy testimony of the eye-witnesses. It
was, however, indicated that it is always desirable for the prosecution to
examine the Investigating Officer. In the present case after examination-in-
chief and partial cross-examination, the Investigating Officer had died.
Therefore, this cannot be a case which can be stated to have caused any
prejudice to the accused on account of Investigating Officers non-
examination. The prosecution cannot be attributed with any lapse or ulterior
motives in such circumstances. In Behari Prasad and others, v. State of
Bihar (1996 (2) SCC 317) it was held that case of prejudice likely to the
suffered mostly depends upon facts of each case and no universal straight-
jacket formula should be laid down that non-examination of Investigating
Officer per se vitiates the criminal trial. The said view has been found
echoed in Ambika Prasad and another v. State (Delhi Administration) (200
(2) SCC 646), Bahadur Naik v. State of Bihar (2000 (9) SCC 153) and Ram
Gulam Chaudhury and others v. State of Bihar (JT 2001 (8) SC 110).
Having glance of the above discussion we are of the view that non
examination of all material witnesses particularly the Investigating Officer, has
seriously caused prejudice to the appellant. The prosecution story is that three
militants have committed offence punishable under Section 302, 120-B, 121, 122 of
RPC and 4/27 of Arms Act, while as accused Altaf Hussain and Mohammad Taj
have committed offence punishable under Section 302 and 120-B of RPC. Accused
Altaf Hussain has been acquitted by the trial court as discussed hereinabove but
Mohammad Taj has been convicted though prosecution has failed to prove charge
for the commission of offence punishable under Section 302, 120-B RPC. There is
nothing on the file to show, as discussed hereinabove, that Mohammad Taj has used
the seized weapon and killed any person. Witnesses have deposed that they have
not seen who was murdered by whom. Then how appellant came to be convicted is
not forthcoming.
In the given circumstances we would have directed retrial of the case, but
handicap is the clean acquittal of Altaf Hussain, accused and acquittal of the
appellant for the commission of offence punishable under Section 120-B RPC
which has attained finality as discussed hereinabove. Apex court in case reported as
AIR 1989 131 Para 10, observed as under:-
10. Lastly, we are constrained to observe that the High Court has not
examined the merits of the case at all. If it had done so, it could not have
come to the conclusion that there was any material defect or omission in the
framing of the charges or giving the particulars thereof or any failure of
justice was occasioned thereby. It failed to appreciate that in an appeal by
the respondents under S. 374(2) of the Code, the order of acquittal passed by
the learned Additional Sessions Judge as against the 26 other accused could
not be interfered with. The High Court also failed to appreciate that there
cannot be a piecemeal trial. The retrial directed by the High Court must
necessarily revise the prosecution and must result in a trial de novo against
the 42 accused. The 26 other accused acquitted by the learned Additional
Sessions Judge were not impleaded as parties to the appeals before the High
Court. In the absence of an appeal preferred by the State Government
against their acquittal, the High Court could not under S. 386(b) on an
appeal by the respondents against their conviction alter the acquittal nor can
there be a splitting up of the trial. See State of Karnataka v. Narsa Reddy,
(1987) 4 SCC 170: (AIR 1987 SC 2104).
The Apex Court has laid down the same principle in case reported as AIR
1962, SC 240 Para 9.
Having glance of the above discussion, we are of the considered view that
the prosecution has failed to bring home guilt of appellant-accused Mohammad Taj
beyond any shadow of reasonable doubt and also has failed to prove his identity.
Therefore, this appeal succeeds and is accordingly allowed. Impugned orders of
conviction and sentence are set-aside and accused Mohammad Taj is acquitted of
the charges while giving him the benefit of doubt.
Criminal reference No. 19/2009 is answered accordingly.
(Mansoor Ahmad Mir) (Virender Singh)
Judge Judge
Jammu
16.11.2010.
Amjad lone