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Judgment
The present appeal is directed against the conviction and sentence of the appellants by virtue of the judgment dated 29.12.2012 and order on
sentence dated 03.01.2013. Both the appellants have been convicted for commission of offences under Section 364, 302 read with 120-B of
RPC. The Principal and Sessions Judge, Anantnag, by virtue of the said judgment dated 29.12.2012 held that the prosecution has proved beyond
reasonable doubt that the accused Fayaz Ahmad Shah and Mohammad Syed Bhat (the appellants herein) on 10.06.2003 in furtherance of a
criminal conspiracy, abducted the deceased Mukhtar Ahmad Khan s/o Nazir Ahmad Khan r/o Sarnal-bala with intention to kill him and in
furtherance of the common intention committed his murder. By virtue of the order on sentence dated 03.01.2013, the appellants, having been
convicted of offences under Sections 302, 364 read with 120-B of RPC were sentenced to life imprisonment under Section 302, RPC read with
120-B, RPC and rigorous imprisonment for five years and fine of Rs. 5000/- each for the offence under Section 364, RPC and in default of the
fine, further imprisonment for six months. The sentences in respect of both the offences were directed to run concurrently and the period of
detention undergone by the accused as under trials was to be set-off as per the rules.
The prosecution story is that the complainant Nazir Ahmad Khan (s/o Master Ghulam Ahmad Khan) (PW-1), father of the deceased Mukhtar
Ahmad Khan, lodged a complaint before the Station House Officer (SHO), Anantnag of Police Station Anantnag, stating therein that his son
(Mukhtar Ahmad Khan) was sitting in his shop on 10.06.2003, when at about 12:00 noon, two unknown persons came to his shop and spoke to
him regarding the purchase of a vehicle. Thereafter, the same persons returned at 7:00 p.m. to purchase the vehicle (Black Alto) bearing
registration No. H.R. 06 HQT 0796 and took Mukhtar Ahmad Khan along with the driver Abdul Rashid Sofi (PW-3) for payment of money to
Mattan. As per the complaint which was lodged on 11.06.2003, the driver Abdul Rashid Sofi (PW-3) returned and stated that at the Akura
Bridge, some unknown persons stopped their vehicle and took away Mukhtar Ahmad Khan at gun point along with the vehicle to an unknown
place and that he (Abdul Rashid Sofi) was taken away blindfolded in another Maruti vehicle which was already parked and waiting to pick him up
and took him to some unknown destination. It was further stated in the complaint that Abdul Rashid Sofi stated that he was released in the morning
by removing the blindfold in the fields. Thereafter, he came to know that he was released near village '' Kanalwan''. However, he did not know
where Mukhtar Ahmad Khan had been taken.
This complaint became the foundation of FIR No. 280/2003 at P/S Anantnag under Sections 420, 364 of RPC and Section 7/27 of the Indian
Arms Act, 1959. Immediately thereafter, the police machinery was set into motion and the investigation of the case was initiated. The Investigating
Officer (IO) visited the spot, prepared a sketch map of the place of occurrence and statements of the witnesses were recorded. During
investigation, the IO received information that an unidentified dead body was found lying on the banks of the river Lidder at Aangmati. The same
was recovered and was identified by Tawseef Ahmad Khan (PW-2) (brother of the deceased) and Nazir Ahmad Khan (PW-1) (father of the
deceased). The police took possession of the dead body and prepared the Fardi-Mukboozgi Naash (memo of possession of dead body) as well
as Fardi-Baramdigi-Naash (memo of recovery of dead body) along with the map of recovery. Fardi Shinakhtigi Naash (identification memo) was
also prepared. The dead body was examined by the doctor and photographs of the dead body were also taken. The injury form and form of
violence were also prepared. The blood stained clothes of the deceased were seized and after completion of all the formalities, the dead body was
handed over to the legal heirs of the deceased against proper receipt.
As per the report of the medical certificate of the doctor, it appeared that the deceased had died due to firearm injuries. The statements of
witnesses associated with the facts and circumstances of the case were recorded. Since the dead body of the deceased had been recovered,
Section 302 of RPC was added during the investigation.
The Police at Pampore informed the IO that they had seized the Alto car bearing registration No. HQ-06/HQT/077. As per the prosecution,
this was the very vehicle in which the deceased was allegedly abducted. The statements of the witnesses were recorded and the vehicle after its
seizure was ultimately released in favour of PW-1 on the directions of the Court.
Further as per the prosecution story, during investigation, it was revealed that the said vehicle had been sold by the appellant No. 1 (Fayaz
Ahmad Shah) to PW-2 in lieu of debt. A hunt was launched to seek the arrest of Fayaz Ahmad Shah. It appears that after a period of two months,
on the basis of the recovery of the Alto vehicle, Fayaz Ahmad Shah had asked the legal heirs of the deceased as to why they were after him and
why the police was searching for him. It was also revealed that in the abduction and death of the deceased, the appellant No. 2 Mohammad Syed
Bhat was also involved. On the basis of the statements of the witnesses, as per the prosecution, it came to the fore that both the appellants had
entered into a criminal conspiracy to cause the death of Mukhtar Ahmad Khan and that he had been abducted by the accused in order to cause his
death. The said Alto vehicle was taken by the appellant Fayaz Ahmad Shah with him and then sold to PW-2. On the basis of the facts and
circumstances as had emerged during investigation, Section 120-B of RPC was added in the FIR. Subsequently on 13.01.2004, the appellant No.
2 Mohammad Syed Bhat was arrested and during the identification parade, PW-2 and PW-3 also allegedly identified him and confirmed in their
statements that on the date of occurrence, i.e., 10.06.2003, the said Mohammad Syed Bhat along with another person came to the house of PW-
1 along with the deceased. Thereafter, the challan was filed in the court. The search to apprehend the appellant No. 1 continued at the time of filing
of the challan. The charge sheet came to be presented in the court of the Chief Judicial Magistrate, Anantnag on 29.03.2004 in the presence of the
appellant No. 2 Mohammad Syed Bhat in custody and in the absence of the appellant No. 1. Since the case was one which was exclusively triable
by the Court of Sessions, the same was committed to that Court on the same day.
Thereafter, the matter was further investigated and on the basis of such further investigation, a supplementary charge sheet under Section 302,
RPC and Section 7/25 of the Indian Arms Act, 1959 came to be filed before the court. On 15.12.2004, the Sessions Court, granted formal
permission to the Investigating Agency to collect further evidence. Subsequently, after Fayaz Ahmad Shah had also been arrested, the Sessions
Court while considering the charge sheet found that grounds existed to presume the commission of offence under Section 302 read with Section
120-B and Section 364 of RPC and, accordingly, the appellants were formally charge sheeted of the aforesaid offences.
The charge against the accused/appellant No. 1 (Fayaz Ahmad Shah) was as under:-
''That you'' Fayaz Ahmad Shah S/o Ghulam Hassan Shah r/o Babanad Shopian'' on 10th of June, 2007 along with other accused while
boarding an Alto vehicle bearing No. HR06HOTO796 appeared in the Iqbal Market and kidnapped son of the complainant namely
Mukhtar Ahmad Khan s/o Abdul Rahman Khan and private driver namley Abdul Rashid and took them toward Akura Khan was killed at
an unknown place and after killing him, you destroyed the evidence. Therefore you are charged under Section 302, 364 and 120 of RPC.''
The charge against the accused/appellant No. 2 was identical. It may however be pointed out that the reference of the date 10.06.2007 is a
typographical error and the same should be read as 10.06.2003 which had been fairly conceded by the counsel for the parties as being an
inadvertent clerical error before the trial Court. Thereafter, the prosecution was directed to produce the evidence and the prosecution produced
and examined 23 witnesses including PWs- 1, 2, 3, 4, 7, 8, 9, 10, 13, 15, 16, 18, 19, 22, 23, 24, 25, 26, 27, 32, 34, 36 & 44. It appears that on
behalf of the accused, the statement of PWs- 11, 12, 14, 19, 20, 27, 28, 29, 30, 31, 37 and 40 were admitted. Apparently on behalf of the
accused, the following statements had been made:- ''that the alleged accused persons admit the statements of prosecution witnesses Nos. 11, 12,
14, 19, 20, 27, 28, 29, 30, 31, 37, 40 as recorded on 27.10.2003, 27.10.2003, 29.10.2003, 11.06.2003, 25,06.2003, documents issued by
witnesses Nos. 28, 29, 30 and 31, 11.06.2003 respectively as per the calendar of the witnesses annexed with the charge sheet by the
prosecution.''?
The prosecution evidence was closed on 02.05.2011 and the accused/appellants were examined on 15.07.2011. Thereafter, the accused
were called upon to produce any evidence in their defence. However, they had not opted to adduce any evidence in their defence, and, therefore,
the matter was put up for final arguments. This was followed by the impugned judgment dated 29.12.2012 and the order on sentence dated
03.01.2013.
Essentially, the case turns upon the deposition of PW-3 (Abdul Rashid Sofi) who was the driver of the deceased Mukhtar Ahmad Khan. As
per the learned counsel for the appellants, this witness is unreliable as he has given various versions, none of which were believable or
corroborated by any other substantive evidence. However, the learned trial Court believed this witness and convicted the appellants. As per the
learned Sessions Judge, both the appellants in furtherance of the common object and criminal conspiracy had gone to the shop of the deceased
under the pretext of purchasing his vehicle. According to the learned Sessions Judge, this fact is supported by the testimonies of PWs. 1, 2, 3 &
PW-1 is the father of the deceased and PW-2 is the brother of the deceased. PW-3, as we have indicated above, was the driver of the
deceased and PW-22 (Javaid Ahmad Wagay) was a person who deposed that on 10.06.2003, the appellants had come to the shop of the
deceased for purchase of the vehicle and that they had returned in the evening to the shop and that the driver and a friend of the deceased had
boarded the vehicle.
The learned Sessions Judge also concluded that the prosecution had been able to prove beyond any reasonable doubt that the appellants
abducted the deceased. This, according to the learned Sessions Judge was supported by PW-3.
Insofar as the offence punishable under Section 302 is concerned, the learned Sessions Judge concluded that in pursuance of the criminal
conspiracy and in furtherance of the common intention, the appellants abducted the deceased in order to kill him and thereafter did kill him.
According to the learned Sessions Judge, this was established inter alia by the evidence of PWs 1, 2, 3 & 22. It was further observed that the
recovery of the vehicle added credibility to the prosecution case. It was also noted that as the weapon of offence was a pistol and the intention was
to kill, a clear case for murder had been established.
Challenging the findings and conclusions of the learned Sessions Judge, Mr. S. T. Hussain, the learned senior counsel appearing on behalf of
the appellants, submitted that no case had been made out against the appellants beyond the realm of reasonable doubt. He also submitted that
although PW-3 Abdul Rashid Sofi (the driver) has been referred to as an eye-witness, as per his own statement, he did not see the alleged incident
of firing, but only heard three shots. Therefore, this was a case based purely on circumstantial evidence and that before a finding of conviction
could be returned, each and every link in the chain of circumstances had to be established which was missing from the present case. He further
pointed out that no post-mortem examination of the body of the deceased was conducted. As such, there was no determinative cause of death.
The so-called post-mortem report was only a medical certificate and the doctor who gave that certificate was not examined by the prosecution.
Interestingly, even the Investigating Officer was not brought to the witness box and that in itself was a significant circumstance for throwing out the
prosecution story. It was also submitted that in his examination, PW-3 (Abdul Rashid Sofi) had stated that when the appellants had fired in the air,
a number of persons were present after the Magrib Namaz, but, the prosecution failed to examine any of those persons in order to corroborate the
story given out by PW-3. Furthermore, it was pointed out by the learned counsel for the appellants that as per PW-3, the two appellants, the
deceased and PW-3 himself stopped their vehicle at village Adlach and that while PW-3 remained near or in the vehicle, the deceased along with
the appellants entered a house in the village and that after about five minutes, the deceased came out running and told PW-3 that the appellants
wanted to snatch his vehicle. It is, thereafter, that the appellants appeared with a pistol. Some people had assembled there after Magrib Prayers,
so, the appellants fired in the air and took the deceased along with PW-3 and reach Alaknala. After sometime, he heard three shots fired at a
distance. Thereafter, the appellant No. 2 Mohammad Syed Bhat came towards PW-3 and told him not to disclose the incident to anybody.
The learned counsel for the appellants submitted that even the person (Nazir Ahmad) in whose house at village Adlach, the deceased and the
appellants had allegedly entered had not been examined. This again indicated that there was lack of corroboration of PW-3''s testimony which
according to the learned counsel for the appellants was fanciful and full of contradictions. It was also submitted by the learned counsel for the
appellants that in cross-examination, PW-3 has stated that he did not know as to who fired at the deceased as he was kept blindfolded about 10
to 15 meters away. It was also pointed out by the learned counsel for the appellants that PW-3 (Abdul Rashid Sofi) during his cross-examination
also retracted his earlier statements recorded under Sections 161 and 164, Cr.P.C. Thus, according to the learned counsel for the appellants, there
was no corroboration of the testimony of PW-3 upon which the entire case against the appellants was built.
On the other-hand, the learned counsel for the State submitted that the learned Sessions Judge has meticulously examined the evidence of all
the witnesses as also examined the documentary evidence on record which included the FIR, Forensic Science Laboratory (FSL) Report and the
post-mortem report. He submitted that after examining the same threadbare, the learned Sessions Judge had rightly convicted the appellants of the
offences for which they were charged and they have also been appropriately sentenced. According to the learned counsel for the State, the case
against the appellants has been established beyond reasonable doubt and there is no cause for interfering with the impugned judgment and order on
sentence.
Having considered the rival contentions of the parties and having examined the case in detail including the evidence on record both oral and
documentary, we are of the view that the prosecution has not been able to establish its case beyond reasonable doubt. The doubts that occur are
primarily due to the shoddy manner in which the investigation was conducted and the evidence was produced before the court. First of all, the so
called post-mortem report is in truth not a report of a post-mortem examination at all. The learned Sessions Judge was mistaken in considering this
medical certificate to be a post-mortem examination report. The certificate given by the doctor was to the following effect:-
'' Certified that the dead body of Mukhtar Ahmad Khan was brought by Police Station Mattan today on 11.06.2003 at 11:40
C/o one bullet shot on back side of the upper vertebra = three bullets on stern chest.
Opinion reserved.
Patient dead, pulse BP not recordable/Cause of death-evident.
No need of post-mortem.''?
The certificate indicates that the dead body of Mukhtar Ahmad Khan was seen by the doctor and he observed one bullet shot on back of the
upper vertebra and three bullets on the stern (sternum) chest. The said certificate indicated that the opinion was reserved. Thereafter, it is recorded
that the patient was dead, pulse and BP were not recordable and that the cause of death was evident. Interestingly and surprisingly, it was noted
that there was ''no need of post-mortem''?. How would the doctor, who has not been produced for examination by the prosecution, have come to
the conclusion that the injuries were bullet injuries? There is no indication as to whether the so-called bullet shots on the back and on the chest
were entry or exit wounds. Were there three shots or four shots. Inasmuch as they may be an entry and exit wounds in respect of one bullet and
two entry wounds in respect of the second and third bullet or were there four shots all of which were entry wounds. This was necessary to be
established through a thorough post-mortem examination as then only would it be revealed as to whether there was any bullet lodged inside the
body or not. This would then enable us to conclude as to whether there were three bullets, or four bullets or any bullets at all fired at the deceased
and whether these bullets so called were the cause of death of the deceased Mukhtar Ahmad Khan. Therefore, it appears that the cause of death
is far from being evident and there was a definite need for a post-mortem examination in order to corroborate the testimony of PW-3 that he heard
three shots being fired.
The second point that has caused doubt in our minds with regard to the conviction of the appellants is borne out by the two FSL reports. The
first report is dated 21.08.2003 and is by Nazir Ahmad, PG Diploma in Forensic Ballistics. The said report reads as under:-
'' FSL Report 1st:-
'' Office of the J&K Forensic Science Laboratory Srinagar.
Report No: FSL/702-Bal/Sgr.
Dated: 21.08.2003
Report by:- Nazir Ahmad, P.G. Diploma in Forensic Ballistics.
The Dy. Superintendent of Police,
Hqrs. Anantnag.
Subject:- Case Fir No. 280/2003, U/Ss. 364, 420 RPC 7/25 A.AC P/S Anantnag.
Received one packet in open condition from Serology Division FSL Srinagar forwarded by Dy. S.P. Hqrs. Anantnag vide letter No.
HQ/A/01-PS-Ang/03-2741-42 dated 24-06-2003 on 30-06-2003.
Description of the Packet:-
I. One jeans pant allegedly having blood stains, marked K-91/03, which was further marked as Exhibit No. B-382/2003 by me.
II. One torn out half sleeves shirt allegedly stained with blood, marked K-92/2003 which was further marked as Exhibit No. B-383/2003
by me.
III. One torn out undershirt allegedly stained with blood, marked as K-93/2003, which was further marked as Exhibit No. B-384/2003 by
me.
IV. One underwear marked K-94/2003 which was further marked as Exhibit No. B- 385/2003 by me.
Examination and Report:-
The jeans pant marked as Exhibit No. B-382/2003 having one hole marked H1 measuring 5mm x 7mm approximately.
The torn out half sleeves shirt marked as Exhibit No. B-383/2003 having three holes marked H1 to H3 measuring H1 = 7mm x 7mm, H2 =
6.5 mm x 7mm and H3 = 3.2cms approximately.
The torn out undershirt marked as Exhibit No. B-384/03 having two holes on front side marked as H8 and H9 measuring H8 = 8mm x
8mm and H9 = 7mm x 7mm approximately.
These holes on Exhibit Nos. B-382/03 to B-384/03 were subjected to chemical analysis and the following opinion formed:-
RESULT:-
The Hole Marked H1 on the Jeans Pant Marked Exhibit No. B-382/03 HAS
Been Caused Due to Projectile Hit.
The Holes Marked H1 And H2 on the Torn Out Half Sleeve Shirt Marked
As Exhibit No. B-383/03 Had Been Caused Due to the Projectiles Hit.
The Holes Marked H8 And H9 on the Torn Out Under Shirt Marked As
Exhibit No. B-384/03 Had Been Caused Due to Projectiles Hit.
The Firing Has Taken Place at a Distant Range.
Examined By.
Sd/
Nazir Ahmad.
SC. Asstt.
FSL. Srinagar'' ?
On going through the result of the said report, it is evident that there is a hole H1 on the jeans worn by the deceased which apparently has been
caused due to a projectile hit. The holes H1 and H2 on the torn half sleeved shirt are also said to have been caused due to projectile hits and Holes
marked H8 and H9 on the torn under shirt have also been caused due to projectile hits. Thus, if the holes in the half sleeved shirt and the under
shirt correspond it appears that there were two projectile hits on the upper body of the deceased and one projectile hit in the lower body as the
same was found on the jeans worn by the deceased. These results of the ballistic expert submitted by the FSL completely contradict the medical
certificate given by the doctor of there being four bullet injuries (one in the back and three in the chest of the deceased). The ballistic report also
indicates that the projectiles were fired from a distance. It has not been indicated as to what may have been the weapon of offence and that is also
a material fact inasmuch as, according to PW-3, the one of the appellants was armed with a pistol, which incidentally was never recovered.
The second FSL report is dated 01.08.2003 and the same reads as under:-
''FSL Report 2nd:-
Directorate of J&K Forensic Science Laboratory, Srinagar (Admissible as Evidence in the Court of Law)
Report No. FSL/703
Dated 21-08-2003
Subject: Case FIR NO. 280/2003 U/Ss. 364, 420 RPC 7/25 A. ACT OF P/S Anantnag.
Received on 25.06.2003, one sealed packet and one sealed bottle enclosed within khaddar cloth marked as A and B bearing 10 and 4
intact seals respectively forwarded by Dy. Superintendent of Police (Hqrs) Anantnag vide his letter No. Hq/A/01-PS-Ang/03/2741-42
dated 24.06.2003, sent through Muzaffar Ahmad, Constable No. 1616/A.
Description of the Packet And Bottle:-
Packet Marked (A) By You:- on opening was found to contain the
following items:-
(i) One jeans pant allegedly stained with blood and was marked as Exhibit No. K-91/2003 in the laboratory by me. The exhibit is having
one small hole allegedly the bullet hole and the said exhibit was further forwarded to Scientific Officer, Ballistics for further examination.
(ii) One torn out half sleeves shirt allegedly stained with blood and was marked as Exhibit No. K-92/2003 in the Serology section by me.
The exhibit is having some small holes allegedly the bullet holes and the said exhibit was further forwarded to Scientific Officer, Ballistics for
further examination.
(iii) One torn out under shirt allegedly stained with blood and was marked as Exhibit No. K-93/2003 in the Serology section by me. The
exhibit is having some small holes allegedly the bullet holes. And the said exhibit was further forwarded to Scientific Officer, Ballistic for
further examination.
(iv) One underwear allegedly stained with blood and was marked as Exhibit No. K-94/2003 in the Serology section by me.
Packet Marked (B) By You:- on opening was found to contain a small glass bottle allegedly containing blood with soil emitting foul smell
due to purification and was marked as Exhibit No. K-95/2003 in the Serology section by me.
The above seals were opened in my presence and the contents of the packets were duly examined by me remaining under my immediate
custody until the examination was completed.
The Result is as Under:-
Blood-Stains Were Detected on the Exhibit Nos. From K-91/2003 TO K-95/2003.
Blood-Stains on the Exhibit Nos. From K-91/2003 to K-94/2003 Were of human Origin.
Origin and Group of the blood in the Exhibit No. K-95/2003 Could not be determined as the Blood Sample Was Disintegrated.
Group of the Blood-Stains on the Exhibit Nos. K-91/2003, K-92/2003,
K-93/2003 And K-94/2003 Were Of ''A''? Blood Group.
Opinion Regarding Exhibit Nos. K-91/2003 , K-92/2003 And K-93/2003 From Ballistic Expert is enclosed.
Examined By,
Sd/
Nissar Ahmad.
I/c Assistant Director,
Biology/serology,
Fsl, Srinagar.'' ?
It is on the basis of the testimony of PW-3 and the so called post-mortem report and the FSL Report that the learned Sessions Judge
concluded that the same confirmed the death of the deceased at the hands of the appellants in furtherance of a criminal conspiracy. We cannot
agree with this finding because, there are several deficiencies both in the so called post-mortem report as also in the ocular evidence and
particularly of PW-3 Abdul Rashid Sofi (the driver) to which we have also alluded. In fact, the FSL Ballistic Report contradicts the medical
certificate of the doctor and the chemical analysis as per the 2nd FSL report also does not further the case of the prosecution.
The fact that there was no post-mortem examination of the deceased does not enable us to conclusively determine the cause of death of the
deceased. The medical certificate which has been considered to be, albeit wrongly, a post-mortem report has been clearly contradicted by the
ballistic report of the FSL. These facts coupled by the factum of non-examination of the doctor and more importantly the Investigating Officer (IO)
have thrown up serious doubts in our minds with regard to the prosecution story. These doubts are further aggravated by other related facts, such
as, non-examination of the persons who are present after the Magrib Namaz in village Adlach; non-examination of Nazir Ahmad in whose house
the appellants and the deceased had allegedly gone in and from whose house the deceased allegedly came out running followed by the appellants;
the several contradictions in the testimony of the most important witness, PW-3 (Abdul Rashid Sofi) and the lack of corroboration by any medical
or scientific evidence of PW-3''s testimony.
There is another factor which has troubled us. Apparently, the vehicle in question was taken away by the accused/appellants without making
any payment therefor, yet, strangely, the very same vehicle was allegedly sold by the appellant No. 1, after the death of the deceased to PW-2
who was the brother of the deceased. This part of the prosecution story is difficult to believe. Why would the appellants having snatched the
vehicle from the deceased in the manner alleged by the prosecution, and then have sold the very same vehicle to the brother of the deceased?
Since there are serious doubts in our minds with regard to the prosecution case, the benefit of the same would have to go to the appellants.
Consequently, their conviction under Sections 364, 302 read with 120-B of RPC by virtue of the judgment dated 29.12.2012 and order on
sentence dated 03.01.2013 is set-aside. The appellants are directed to be released forthwith.
The criminal appeal is allowed. The criminal reference stands disposed of accordingly. The bail application, in view of our decision above, also
stands disposed of as having become infructuous.
Appeal allowed.