{"id":137048,"date":"2010-11-16T00:00:00","date_gmt":"2010-11-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammad-taj-vs-state-on-16-november-2010"},"modified":"2016-02-10T03:28:12","modified_gmt":"2016-02-09T21:58:12","slug":"mohammad-taj-vs-state-on-16-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammad-taj-vs-state-on-16-november-2010","title":{"rendered":"Mohammad Taj vs State on 16 November, 2010"},"content":{"rendered":"
Jammu High Court<\/div>\n
Mohammad Taj vs State on 16 November, 2010<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nCRA No. 55 OF 2009 AND CRREF No. 78 OF 2009       \nMohammad Taj   \nPetitioners\nState of J&K\nRespondent  \n!M\/S K. L. Pandita and Samir Pandita, Advocates \n^Mr. A. H. Qazi, AAG \n\nHonble Mr. Justice Virender Singh, Judge\nHonble Mr. Justice Mansoor Ahmad Mir, Judge  \nDate: 16.11.2010 \n:J U D G M E N T :\n<\/pre>\n
Per Mansoor J.\n<\/p>\n
        This criminal appeal is directed against the judgment and order of
\nconviction dated 30th of September, 2009 and order dated 1st of October, 2009,
\nwhereby accused was sentenced to death subject to confirmation of this court, on
\nthe grounds taken in the memo of appeal.\n<\/p>\n
BRIEF FACTS:-\n<\/p>\n
        Police Station Budhal received information from reliable sources that on 9th
\nof October, 2005 at about 7.00 pm a group of militants entered into the house of one
\nMunshi Ram S\/o Nihal Chand R\/o Raj Nagar Budhal and killed five persons by
\nslitting their throats. This report set the police in motion. FIR No. 46\/2005 for the
\ncommission of offences punishable under Sections 302, 120-B, 121, 122 of Ranbir
\nPenal Code, (hereinafter for short as RPC) and Section 4\/27 Arms Act came to be
\nregistered. Mohammad Bashir, ASI, was entrusted with the investigation; he
\nconducted the investigation and during investigation prepared site-plan of the place
\nof occurrence, seized dead bodies of the five persons, prepared seizure memos, took
\nphotographs of the place of occurrence and of dead bodies and samples of ordinary
\nand blood stained soil (earth) were taken from spot. The team of doctors conducted
\npostmortem, blood samples were taken during conducting of postmortem and were
\nsent to FSL for opinion. The dead bodies were handed over to their relations.\n<\/p>\n
        The Investigating Officer prepared a final report in terms of Section 173 of
\nCriminal Procedure Code (hereinafter for short as Cr.P.C) and came to the prima-
\nfacie conclusion that on 4th of October, 2005, accused Altaf Hussain met
\nMohammad Yaseen Alias Amir Khan, Sanghar Pathan and Shakeel Ahmad in the
\nGuhar forests and stayed during the intervening night of 4\/5th October, 2005 in the
\nhouse of Mohammad Bashir S\/o Saleh Mohammad R\/o Mahora Gabbar. On 5th of
\nOctober, 2005 Altaf got clothes of the aforesaid persons washed by Ashiq Ali S\/o
\nHassan Mohammad and also arranged food\/fruits from Mohammad Tariq S\/o
\nMohammad Bashir. In the intervening night of 5th\/ 6th October, 2005 they stayed in
\nthe house of Mohammad Iqbal S\/o Raj Mohammad R\/o Mahora Gabbar and at
\nabout 11. pm accused Mohammad Taj (nephew of Mohammad Iqbal) reached there.
\nThereafter they stayed in forest (Chakhari) in order to trace-identify the informers.
\nIn the intervening night of 9th\/ 10th of October, 2005 all the five persons i.e. Altaf,
\nMohammad Taj and aforesaid three militants entered into the house of Munshi Ram
\nand Sobha Ram and killed Munshi Ram, his two sons Rajender Kumar alias Kala
\nand Hans Raj and Sobha Ram his son Suresh alias Vicky by slitting their throats.\n<\/p>\n
        In terms of final report submitted by Investigating Officer under Section 173
\nCr.P.C., three militants namely Mohammad Yaseen, Sanghara Pathan, Shakeel
\nAhmad were prima-facie found to be involved in the commission of offences
\npunishable under Sections 302, 120-B, 121, 122 RPC and 4\/27 Arms Act, whereas
\nthe offences punishable under Section 302\/120-B of RPC were prima-facie proved
\nagainst Mohammad Taj and Altaf Hussain.\n<\/p>\n
        Three militants were absconding whereas Mohammad Taj and Altaf Hussain
\nwere arrested, challan was presented before the court of Chief Judicial Magistrate,
\nRajouri, committed it to the court of Sessions Judge, Rajouri for trial after drawing
\nproceedings against the said militants in terms of Section 512 Cr.P.C.\n<\/p>\n
        Appellant and Altaf Hussain came to be chargesheeted, they denied the
\ncharges and claimed to be tried.\n<\/p>\n
        Prosecution examined PW 3 Mst. Amro Devi, PW 4 Mst. Jatti Devi, PW 5
\nMst. Shanti Devi, PW 6 Babu Ram, PW 7 Krishan Lal, PW 9 Munshi Ram, PW 10
\nMohammad Rafiq, PW 11 Mohammad Iqbal, PW 12 Mohammad Bashir, PW 13
\nMohammad Tariq, PW 14 constable Ramesh Kumar, PW 15 Dr. Mohammad
\nAshraf.\n<\/p>\n
        Prosecution has failed to examine PWs 6, 8, 16, 17, 18 and 19.
\n        Accused Altaf Hussain and Mohammad Taj have not examined any witness
\nin defence.\n<\/p>\n
        In terms of Section 273 of Cr.P.C, the trial court after hearing arguments,
\nacquitted Altaf Hussain, while as accused Mohammad Taj came to be convicted and
\nsentenced to death only for the commission of offence punishable under Section
\n302 RPC.\n<\/p>\n
        Feeling aggrieved Mohammad Taj questioned the same by the medium of
\nthis appeal. The trial court has made a reference for confirmation of the death
\nsentence. Brief resume of evidence of the prosecution:-\n<\/p>\n
        P.W. No. 3 Amro Devi deposed that she knows the accused present before
\nthe court. Near about nine months ago at about 7.00 p.m. she and her husband were
\nsitting under the Tarpolene Sheet. Four persons came, out of them three were
\nmilitants and fourth one was accused Mohammad Taj who was accompanying
\nthem. They asked her and her family members whether they had their meals. They
\nreplied that they had cooked the meals in the house of Sobha Ram. All of them went
\ninto the house of Sobha Ram. Accused Taj and other two militants out of three
\nentered into the house of Sobha Ram. One militant stayed outside the house.
\nMilitants who had gone inside the house had already taken Mushi Ram, Sobha
\nRam, Suresh, Rajinder Kumar and Hans Raj with them. One militant came outside
\nthe house while as accused Taj and another militant remained inside the door. The
\nmilitant who came out demanded from them instrument of wood cutting. On their
\nrefusal he went inside the cowshed and brought out two sickles. She requested the
\nmilitants not to kill them and were ready to leave all property. The militant who
\nbrought sickles pushed aside the witness and went inside the house. They heard
\nnoise of slitting\/ cutting. She fell down unconscious and gained senses
\n(consciousness) after some time. Thereafter those persons asked Jatti Devi and
\nShanti Devi to go and see inside that five persons were killed by the militants. In
\ncross-examination she has stated that Taj was bearing mask\/ veil on his face and
\nthree militants were without mask\/ veil.\n<\/p>\n
        PW No. 4 Mst. Jatti Devi has deposed that she knows the accused present in
\nthe court. Occurrence took place last year prior to nine months at about 7.00 pm.
\nThey were residing in a tent because their house was damaged. Four persons came
\nand asked them about the meals. They went to Sobha Rams house, out of these
\nfour persons three were having arms and accused Taj was bearing mask on his head
\nand face. Militants took four persons namely Hans Raj, Rajinder Kumar, Sobha
\nRam and Munshi Ram inside the room. Accused Mohammad Taj called Rajinder
\nKumar. They bolted the room from inside. One militant asked them and the children
\nto remain near the kitchen. They tied the hands of the aforesaid five persons one of
\nthe militants came outside and asked for axe and sickles and brought out two sickles
\nfrom the cowshed.  They were gheored by one militant and other three militants slit
\nthe throats of aforesaid five persons. Taj was also in the group of those three
\nmilitants who murdered the aforesaid five persons. Accused Taj was bearing mask
\non his head and face. However, she easily identified him by his voice.
\nPW No. 5 Shanti Devi:- has deposed that she knows the accused present in the
\ncourt. Prior to one and a half year at about 7.00 pm she was cooking meals when
\nfour persons entered into their house, one of them was Taj. She does not know the
\nother three persons. Accused Altaf was not present on spot. They were all armed.
\nThey forcibly entered into their house and took her husband and son, Munshi Ram,
\nHans Raj, Rajinder Kumar inside the room and they closed the room. One person
\nwho was having long hair came outside and took a sickle with him and killed all
\nthose persons who were taken inside. Thereafter accused locked them in another
\nroom. In cross examination she has deposed that accused were not bearing veils.
\nThey have not seen who was murdered by whom.\n<\/p>\n
PW No. 7 Krishan Lal:- has deposed that he came on spot after deceased were
\nmurdered by slitting of throat. He admitted the contents of seizure memos of dead
\nbodies, samples of soil, clothes of deceased as true and correct and exhibited as
\nEXPW7 to EXPW7\/Q. He has not admitted the contents of seizure memo relating
\nto seizure of clothes of accused Mohammad Taj. He admitted the seizure of one
\nsickle-EXPW7\/10. In cross examination he has deposed that he was not present in
\nthe house on the date of occurrence and does not know who murdered the deceased.
\nPW 9 Munshi Ram is not witness to occurrence. However, he deposed that he came
\non spot next day. Sickle was seized on spot in his presence, admitted the signatures
\non EXPW7\/A, EXPW7\/L to EXPW7\/P.\n<\/p>\n
PW 10 Mohammad Rafiq: has deposed that he is a chowkidar of village Rajnagar
\nBudhal. Last year in the month of October, militants murdered 10 people belonging
\nto the family of Munshi Ram and Kartar Singh. Police came on spot and seized the
\ndead bodies. Weapon of offence i.e. one sickle having wooden handle was seized,
\nEXPW7\/10 was prepared. He identified the sickle shown to him in the open court
\nand came to be marked as R. In cross examination he has deposed that documents
\ni.e. seizure memos prepared were blank and his signatures were taken in one go in
\nPolice Station. Being chowkidar of village he has knowledge that militants are
\ninvolved in the killings of the said persons and not the accused present in the court.
\nPW 11 Mohammad Iqbal:- has deposed that he has no knowledge about the
\noccurrence and came to be declared hostile. PP was permitted to cross-examine
\nhim. On cross examination he has deposed that in the intervening night of 5\/6th
\nOctober, 2005 he was present in his house. It is wrong that in next morning three
\nmilitants including accused Altaf entered into his house and demanded meals by
\nthreatening.\n<\/p>\n
PW No. 12 Mohammad Bashir:- has deposed that he has no knowledge about the
\noccurrence and came to be declared hostile. PP was permitted to cross-examine
\nhim. On cross-examination PP was not in a position to extract any incriminating
\nmaterial against the accused. Virtually he has deposed nothing against the accused.
\nPW No. 13 Mohammad Tariq:- has deposed that he has no knowledge about the
\noccurrence, the witness was declared hostile and PP was permitted to cross-examine
\nhim. During cross-examination he has deposed nothing against the accused.
\nPW No. 14 Constable Ramesh Kumar:- has deposed that he is not knowing the
\naccused present in the court. In the month of October, 2005 he was posted at Police
\nStation Budhal, he took the sealed packets as per the directions of the Investigating
\nOfficer to FSL Jammu.\n<\/p>\n
PW No. 15 Dr. Mohammad Ashraf:- has deposed as under:-\n<\/p>\n
        That on 10.10.2005 I conducted the post mortem on the dead body of
\nMunshi Ram S\/o Nihal Chand R\/o Rajnagar Mohra Dhar, Budhal, Rajouri at 1 PM
\nidentified by Babu Ram S\/o Karam Chand R\/o Rajnagar and Munshi Ram S\/o
\nKaram Chand R\/o Rajnagar Budhal brought by ASI Mohammad Bashir P\/s Budhal.
\nOn examination and during autopsy, I found the following injuries:\n<\/p>\n
1. Big incised wound over anterior aspect of neck just below the hyoid bone with
\ninjuries over Oesophagus, trachea and both sides of large vessels and vagus
\nnervous. In my opinion after conducting the autopsy of the deceased the case of
\ndeath is irreversible hemorrhage shock due to injuries. The postmortem report on
\nthe file is in my hand writing and bears my seal and signature. The contents are
\ncorrect. It is exhibited as EXPW-15\/1.\n<\/p>\n
        On the same day, I also conducted the postmortem on the dead body of
\nRajinder Kumar son of Munshi Ram R\/o Rajnagar Mohra Dhar, Budhal Rajouri
\nidentified by Babu Ram S\/o Karam Chand R\/o Rajnagar Budhal and Munshi Ram
\nS\/o Karam Chand, Rajnagar Budhal, brought by ASI Mohammad Bashir P\/s
\nBudhal.\n<\/p>\n
        On examination and during autopsy, the following injuries were found:-\n<\/p>\n
1.      Big incised wound over anterior aspect of neck just below the hyoid bone
\nwith injuries over Oesophagus, trachea ands both sides of large vessels and vagus
\nnervous. In my opinion after conducting the autopsy of the deceased the cause of
\ndeath is irreversible hemorrhage shock due to injuries. The postmortem report on
\nthe file is in my hand writing and bears my seal and signature. The contents are
\ncorrect. It is exhibited as EXPW-15\/2.\n<\/p>\n
        On the same day, I conducted the postmortem of Hans Raj S\/o Munshi Ram
\nR\/o Rajnagar Mohra Dhar Budhal, Rajouri, identified by Babu Ram S\/o Karam
\nChand, R\/o Rajnagar Budhal and Munshi Ram S\/o Karam Chand R\/o Rajnagar
\nBudhal, brought by ASI Mohammad Bashir P\/s Budhal.\n<\/p>\n
        On examination and during autopsy, I found the following injuries:\n<\/p>\n
1.      Big incised wound over anterior aspect of neck just below the hyoid bone
\nwith injuries over Oesophagus, trachea ands both sides of large vessels and vagus
\nnervous. In my opinion after conducting the autopsy of the deceased the cause of
\ndeath is irreversible hemorrhage shock due to injuries. The certificate placed on the
\nfile is in my hand writing and bears my seal and signature. The contents are correct.
\nIt is exhibited as EXPW-15\/3.\n<\/p>\n
        On the same day, I also conducted the postmortem of Suba Ram S\/o Karam
\nChand R\/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S\/o
\nKaram Chand R\/o Rajnagar, Budhal and Munshi Ram S\/o Karam Chand R\/o
\nRajnagar, Budhal, brought by ASI Mohammad Bashir P\/S Budhal.\n<\/p>\n
        On examination and during autopsy I have found the following injuries:\n<\/p>\n
1.      Big incised wound over anterior aspect of neck just below the hyoid bone
\nwith injuries over Oesophagus, trachea ands both sides of large vessels and vagus
\nnervous. In my opinion after conducting the autopsy of the deceased the cause of
\ndeath is irreversible hemorrhage shock due to injuries. The postmortem report on
\nthe file is in my hand writing and bears my seal and signature. The contents are
\ncorrect. It is exhibited as EXPW-15\/4.\n<\/p>\n
        On the same day, I have also conducted the autopsy of Suresh Kumar S\/o
\nSoba Ram R\/o Rajnagar Mohra Dhar, Budhal, Rajouri, identified by Babu Ram S\/o
\nKaram Chand R\/o Rajnagar, Budhal and Munshi Ram S\/o Karam Chand R\/o
\nRajnagar, Budhal, brought by ASI Mohammad Bashir P\/S Budhal.\n<\/p>\n
        On examination and during autopsy I found the following injuries:\n<\/p>\n
1.      Big incised wound over anterior aspect of neck just below the hyoid bone
\nwith injuries over Oesophagus, trachea ands both sides of large vessels and vagus
\nnervous. In my opinion after conducting the autopsy of the deceased the cause of
\ndeath is irreversible hemorrhage shock due to injuries. The postmortem report on
\nthe file is in my hand writing and bears my seal and signature. The contents are
\ncorrect. It is exhibited as EXPW-15\/5.\n<\/p>\n
        On cross examination, no question was put to the witness by the Ld counsel
\nfor accused, although opportunity was granted.
\n        Prosecution has not examined PWs 6, 8, 16, 17, 18 and 19 who are
\nimportant and material witnesses.\n<\/p>\n
        Neither the names of FSL experts are figuring in the witness calendar nor
\nexamined by the prosecution as witness(es).\n<\/p>\n
        According to the prosecution story appellant Mohammad Taj and Altaf
\nHussain had hatched a conspiracy with other three accused-three militants and
\nInvestigating Officer found them involved in the commission of offence punishable
\nunder Section 302 read with 120-B, RPC. Accused Altaf Hussain came to be
\nacquitted and State has not questioned the same, thus the acquittal of Altaf Hussain
\nhas attained finality. In this background the question is whether the conviction
\nrecorded and sentence awarded is legally tenable?\n<\/p>\n
        We are of the considered view that the entire case of the prosecution is
\nshrouded in doubts and the very foundation of the case i.e hatching of criminal
\nconspiracy by Mohammad Taj and Altaf Hussain has not been proved by the
\nprosecution for the following reasons:-\n<\/p>\n
CRIMINAL CONSPIRACY:-\n<\/p>\n
        The statements of PWs 3, 4, 5 and 10 are relevant. None of them have said
\nabout hatching of conspiracy. Neither there is direct evidence nor circumstantial
\nevidence on the file. The story of the prosecution is that accused Altaf Hussain
\naccompanied three militants at the first instance i.e. on 4th and 5th of October and
\nthereafter on 5th and 6th of October, accused Mohammad Taj met them, but failed to
\nprove. PW Mohammad Rafiq has deposed that only militants were involved in the
\ncommission of offences and not the accused Mohammad Taj and Altaf Hussain
\npresent in the court. Altaf Hussain accused stands acquitted and appellant has not
\nbeen convicted by the trial court for the commission of offence punishable under
\nSection 120-B RPC and the State has not questioned the same.\n<\/p>\n
        It is apt to reproduce para 57 of the judgment in case Musheer Khan vs State
\nof Madhya Pradesh, 2010 AIR SCW 996.\n<\/p>\n
        57. As a result of acquittal of A-1, A-2, A-3 and A-6, the conspiracy theory
\nof the prosecution in this case fails. A substantial part of the prosecution
\ncase has not been accepted on valid grounds either by the High Court or by
\nthis Court. Thus, a very vital part of the prosecution case is finally knocked
\noff. As the prosecution fails to prove its case of conspiracy, the motive angle
\nbehind the alleged crime committed by A-4 and A-5 disappears. The
\nprosecution case is that A-4 and A-5 are hired criminals and were engaged
\non payment by A-1, A-2, A-3 and A-6 for killing the deceased. The acquittal
\nof A-1, A-2, A-3 and A-6 which is upheld by this Court casts a serious
\ndoubt on the entire prosecution and its case against A-4 and A-5 suffers a
\nserious setback.
\n      Even otherwise prosecution has failed to bring charge of conspiracy home to
\nappellant Mohammad Taj. Apex Court in the cases titled as B. H. Narasimha Rao
\nversus Government of Andhra Pradesh reported as AIR 1996 SC 64 Para 4, Hardeo
\nSingh versus State of Bihar and others reported as AIR 2000 SC 2245, Para 10,
\nState of Kerala versus P. Sugathan and another reported as AIR 2000 SC 3323 Para
\n17, Saju versus State of Kerala reported as AIR 2001 SC 175 Para 16, Hira Lal Hari
\nLal Bhagwati versus C.B.I. New Delhi reported as AIR 2003 SC 2545, Para 37,
\nRam Narain Poply versus Central Bureau of Investigation reported as AIR 2003 SC,
\n2748 Paras 345 and 349 has laid down the test. It is apt to reproduce Para 345 of
\nAIR 2003 SC 2748 herein:-\n<\/p>\n
345. No doubt in the case of conspiracy there cannot be any direct
\nevidence. The ingredients of offence are that there should be an agreement
\nbetween persons who are alleged to conspire and the said agreement should
\nbe for doing an illegal act or for doing illegal means an act which itself may
\nnot be illegal. Therefore, the essence of criminal conspiracy is an agreement
\nto do an illegal act and such an agreement can be proved either by direct
\nevidence or by circumstantial evidence or by both, and it is a matter of
\ncommon experience that direct evidence to prove conspiracy is rarely
\navailable. Therefore, the circumstances proved before, during and after the
\noccurrence have to be considered to decide about the complicity of the
\naccused.\n<\/p>\n
      It is also profitable to reproduce Para 10 of AIR 2000 SC 2245 :-
\n10. . As a matter of fact some connecting link or connecting
\nfactor somewhere would be enough for framing of charge since framing of
\ncharge and to establish the charge of conspiracy cannot possibly be placed at
\npar: To establish the charge of conspiracy, there is required cogent evidence
\nof meeting of two minds in the matter of commission of an offence-in the
\nabsence of which the charge cannot be sustained-.\n<\/p>\n
        (Para 37 of AIR 2003 SC 2545)
\nCONTRADICTIONS:-\n<\/p>\n
        The Investigating Officer came to the conclusion that Altaf Hussain and
\nMohammad Taj were not directly involved in the commission of offence punishable
\nunder Section 302 RPC but were involved with the aid of Section 120-B RPC and
\naccordingly submitted the final report in terms of Section 173 Cr.P.C. But despite
\nof that trial court has convicted the appellant Mohammad Taj for the commission of
\noffence punishable under Section 302 RPC holding that direct evidence was
\navailable. Amro Devi, Jatti Devi and Shanti Devi, PWs 3, 4 and 5 respectively are
\nthe only eye witnesses and their evidence is contradictory on material particulars.
\nAmro Devi and Jatti Devi have deposed that Mohammad Taj was bearing mask\/
\nveil on his head and face while as three militants were not bearing mask\/ veil.
\nShanti Devi has deposed that all the accused were without masks; now whom to
\nbelieve? Whether the statement of PW Shanti Devi is correct or PW Amro Devi is
\ncorrect. PW Shanti Devi has specifically stated that accused Altaf Hussain was not
\npresent on spot. PW Jatti Devi and Amro Devi have said nothing on this count; PW
\n10 Mohammad Rafiq has deposed that Mohammad Taj and Altaf Hussain were not
\ninvolved in the commission of offence and even he was not declared hostile by the
\nprosecution. His statement gets corroboration by the acquittal of Altaf Hussain and
\ncannot be brushed aside in the given circumstances. The Apex Court in the cases
\ntitled Harkirat Singh versus State of Punjab reported as AIR 1997 SC 3231 Para 3,
\nKalyan and others versus State of U.P. 2001 Cr.L.J 4677 Para 19, Krishna Mochi
\nand others versus State of Bihar AIR 2002 SC 1965, Para 94, State of U.P. versus
\nBhagwant and others AIR 2003 SC 2293 Para 7, State of Madhya Pradesh versus
\nChamru @ Bhagwandas etc. etc. 2007 AIR SCW 4260 Para 10 has laid down tests.
\nIt is apt to reproduce Para 3 of AIR 1997 SC 3231 herein:-\n<\/p>\n
3. Having regard to the facts that except the evidence of the
\ntwo eye-witnesses there is no other legal evidence to connect the appellant
\nwith the offences for which he has been found guilty and that in view of the
\nmaterial contradictions the evidence of the two eye-witnesses cannot be
\nsafely relied upon the appellant is entitled to the benefit of doubt. We,
\ntherefore, allow this appeal and set aside the order of conviction and
\nsentence recorded against the appellant. The appellant, who is on bail, is
\ndischarged from his bail bonds.\n<\/p>\n
WEAPON OF OFFENCE.\n<\/p>\n
        The case of the prosecution is that accused used weapon of offence i.e.
\nsickle while as PWs 3, 4 and 5 have deposed that two sickles were taken by one
\nmilitant from the cowshed and used for the commission of offence. If the statements
\nof the said witnesses are to be believed then the prosecution story is not correct and
\ntrue.\n<\/p>\n
      The question is who used the seized weapon and what about second sickle?
\nThere is evidence on the file that three militants and appellant (whose identity has
\nnot been established) were on spot out of the three, one militant came out, took two
\nsickles and used the same. None of the witnesses have said that Taj was a militant.
\nThere is no evidence on the file that Taj has used the sickle(s). All these doubts
\nwould have been cleared by the Investigating Officer who has not been examined.
\nThe fingerprints of Mohammad Taj have also not been taken in order to ascertain
\nwhether he has used the seized sickle. The seized sickle has not been put to doctor
\nin order to prove that the injuries sustained by the deceased were caused by the said
\nsickle. Even that question has not been put to the doctor.\n<\/p>\n
        Prosecution has neither arrayed the expert of FSL in the witness calendar as
\na witness nor has been produced before the court in order to prove that the seized
\nsickle was the same which was produced before the court and was having the blood
\nstains. Virtually the prosecution has failed to prove the FSL report. It is apt to
\nreproduce relevant portion of Para 7 and 8 of the Apex Court judgment reported as
\nAIR 2002 SC 2707 titled Mathura Yadav alias Mathura Mahato and others versus
\nState of Bihar:-\n<\/p>\n
        7. We notice that the Courts below have implicitly accepted the
\nevidence of PWs, 1, 2, 4 and 5 without properly considering the deficiencies
\nand the contradictions in their evidence. Of course, in regard to the nature of
\nthe attack, the injuries suffered by the deceased and the individual overt act
\nof the accused person, there is a possibility of some discrepancy which
\nshould not in the normal course affect the prosecution case.It is also
\nrelevant to notice the fact that the seizure of the blood-stained mud and grass
\nis not established beyond reasonable doubt and there has been no recovery
\nof any weapon from the accused..\n<\/p>\n
        8. In the above doubtful circumstances, we consider it unsafe to
\nplace reliance on the evidence produced by the prosecution to hold the
\nappellants guilty for offence charged against them.
\nNEW STORY
\n        Keeping in view the discussion made hereinabove the witnesses have put a
\nnew story different than the one given in the final report. Thus appellant is entitled
\nto benefit of doubt. It is apt to reproduce Para 175 of the Apex Court judgment
\nreported as AIR 2003 SC 2748 titled as Ram Narain Poply versus Central Bureau of
\nInvestigation:-\n<\/p>\n
        I would also state that it is not properly understood by the
\nprosecuting agency that by introducing or adding a new story in a
\ncriminal prosecution, in most of the cases, it adversely affects or
\ndestroys the prosecution case. Not only it creates doubts with regard
\nto that part of the prosecution version but on occasions casts doubt
\nabout the motive. Result is under our criminal jurisprudence, benefit
\nof doubt may go to the accused.<\/p>\n
IDENTITY OF THE ACCUSED
\n      The prosecution has failed to prove the identity of Mohammad Taj. As
\ndiscussed hereinabove one version is that he was wearing veil but other is he was
\nnot wearing veil. Amro Devi has not disclosed that how she identified appellant
\ndespite wearing mask. Mst. Jatti has said that she identified him by voice. The
\nstatements of PWs 3, 4 and 5 are contradictory on material particulars; they are
\ninterested and close relatives of deceased. Their evidence is to be scrutinized very
\ncarefully and cautiously. The Apex Court in case titled State of Bihar versus
\nBrahmdeo Prasad & Ors reported as AIR 1980 SLJ SC 9 has held that if the identity
\nof the accused is doubtful, accused is entitled to acquittal.\n<\/p>\n
      In the given circumstances the identification parade was a must which has
\nnot been conducted. PW Rafiq has categorically said that Altaf Hussain and
\nMohammad Taj were not there. Thus it can be safely held that identity of
\nMohammad Taj has not been established.\n<\/p>\n
MATERIAL WITNESSES WITHHELD
\n        The prosecution has withheld the material prosecution witnesses i.e. PWs 6,
\n8, 16, 17, 18 and 19. PW 6 Babu Ram is a witness of circumstances, seizure memo
\nand Fard Superdnama; PW 8 Jagan Nath is a witness of circumstances and seizure
\nof dead bodies; PW 16 is a Naib Tehsildar, in his presence the seized pockets were
\nresealed; PW 17 Mohammad Bashir is the Investigating Officer, who is a star
\nwitness; PW 18 Shri Veer Singh is the SHO who has recorded satisfaction that the
\ninvestigation conducted by the Investigating officer was to his satisfaction; PW 19
\nKewal Krishan, Inspector, has prepared the Final report in terms of Section 173
\nCr.P.C. In the given circumstances adverse inference is to be drawn against the
\nprosecution. Apex Court has laid down the same principle in cases titled Bahadur
\nNaik versus State of Bihar reported as AIR 2000, SC 1582, Para 2, and Raj Kishore
\nJha versus State of Bihar and others, AIR 2003, SC 4665 Para 11. It is apt to
\nreproduce said Paras herein:-\n<\/p>\n
2. The appellant has not been able to shake the credibility of the eye-
\nwitness. No material contradiction in the case of the prosecution has been
\nshown to us. Under facts and circumstances, the non-examination of the
\nInvestigating Officer as a witness is of no consequence. It has not been
\nshown what prejudice has been caused to the appellant by such non-
\nexamination.\n<\/p>\n
        (AIR 2003 SC 4664 Para 11)
\n        Mere non-examination of Investigating Officer does not in every
\ncase cause prejudice to the accused or affects the creditability of the
\nprosecution version. In Ram Dev and another v. State of U.P (1995 Supp (1)
\nSCC 547), it was noted that non-examination of the Investigating Officer
\ndoes not in any way create any dent in the prosecution case much less affect
\nthe credibility of otherwise trustworthy testimony of the eye-witnesses. It
\nwas, however, indicated that it is always desirable for the prosecution to
\nexamine the Investigating Officer. In the present case after examination-in-
\nchief and partial cross-examination, the Investigating Officer had died.
\nTherefore, this cannot be a case which can be stated to have caused any
\nprejudice to the accused on account of Investigating Officers non-
\nexamination. The prosecution cannot be attributed with any lapse or ulterior
\nmotives in such circumstances. In Behari Prasad and others, v. State of
\nBihar (1996 (2) SCC 317) it was held that case of prejudice likely to the
\nsuffered mostly depends upon facts of each case and no universal straight-
\njacket formula should be laid down that non-examination of Investigating
\nOfficer per se vitiates the criminal trial. The said view has been found
\nechoed in Ambika Prasad and another v. State (Delhi Administration) (200
\n(2) SCC 646), Bahadur Naik v. State of Bihar<\/a> (2000 (9) SCC 153) and Ram
\nGulam Chaudhury and others v. State of Bihar (JT<\/a> 2001 (8) SC 110).
\n        Having glance of the above discussion we are of the view that non
\nexamination of all material witnesses particularly the Investigating Officer, has
\nseriously caused prejudice to the appellant. The prosecution story is that three
\nmilitants have committed offence punishable under Section 302, 120-B, 121, 122 of
\nRPC and 4\/27 of Arms Act, while as accused Altaf Hussain and Mohammad Taj
\nhave committed offence punishable under Section 302 and 120-B of RPC. Accused
\nAltaf Hussain has been acquitted by the trial court as discussed hereinabove but
\nMohammad Taj has been convicted though prosecution has failed to prove charge
\nfor the commission of offence punishable under Section 302, 120-B RPC. There is
\nnothing on the file to show, as discussed hereinabove, that Mohammad Taj has used
\nthe seized weapon and killed any person. Witnesses have deposed that they have
\nnot seen who was murdered by whom. Then how appellant came to be convicted is
\nnot forthcoming.\n<\/p>\n
      In the given circumstances we would have directed retrial of the case, but
\nhandicap is the clean acquittal of Altaf Hussain, accused and acquittal of the
\nappellant for the commission of offence punishable under  Section 120-B RPC
\nwhich has attained finality as discussed hereinabove. Apex court in case reported as
\nAIR 1989 131 Para 10, observed as under:-\n<\/p>\n
10. Lastly, we are constrained to observe that the High Court has not
\nexamined the merits of the case at all. If it had done so, it could not have
\ncome to the conclusion that there was any material defect or omission in the
\nframing of the charges or giving the particulars thereof or any failure of
\njustice was occasioned thereby. It failed to appreciate that in an appeal by
\nthe respondents under S. 374(2) of the Code, the order of acquittal passed by
\nthe learned Additional Sessions Judge as against the 26 other accused could
\nnot be interfered with. The High Court also failed to appreciate that there
\ncannot be a piecemeal trial. The retrial directed by the High Court must
\nnecessarily revise the prosecution and must result in a trial de novo against
\nthe 42 accused. The 26 other accused acquitted by the learned Additional
\nSessions Judge were not impleaded as parties to the appeals before the High
\nCourt. In the absence of an appeal preferred by the State Government
\nagainst their acquittal, the High Court could not under S. 386(b) on an
\nappeal by the respondents against their conviction alter the acquittal nor can
\nthere be a splitting up of the trial. See State of Karnataka v. Narsa Reddy,<\/a>
\n(1987) 4 SCC 170: (AIR 1987 SC 2104).\n<\/p>\n
      The Apex Court has laid down the same principle in case reported as AIR
\n1962, SC 240 Para 9.\n<\/p>\n
        Having glance of the above discussion, we are of the considered view that
\nthe prosecution has failed to bring home guilt of appellant-accused Mohammad Taj
\nbeyond any shadow of reasonable doubt and also has failed to prove his identity.
\nTherefore, this appeal succeeds and is accordingly allowed. Impugned orders of
\nconviction and sentence are set-aside and accused Mohammad Taj is acquitted of
\nthe charges while giving him the benefit of doubt.\n<\/p>\n
        Criminal reference No. 19\/2009 is answered accordingly.\n<\/p>\n
         (Mansoor Ahmad Mir)    (Virender Singh)        \n                                     Judge                          Judge\nJammu  \n16.11.2010.\nAmjad lone \n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Mohammad Taj vs State on 16 November, 2010 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-137048","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nMohammad Taj vs State on 16 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammad-taj-vs-state-on-16-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammad Taj vs State on 16 November, 2010 - 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