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Judgment
J.P. Singh, J.—Mohammad Rafiq Dar died of the head injury he suffered on March 11, 2005 at about 1530 hours, at Village Naroo
Ichgam of District Budgam.
PW-1 Manzoor Ahmad Dar, his brother, lodged a written report with Police Station Budgam, saying that the appellant Mohammad Maqbool
Dar had hit his brother Mohammad Rafiq Dar with a stone on his head with the intention to commit his murder. The motive behind the murderous
attack is stated to be the animosity which the appellant had nurtured for Mohammad Rafiq Dar's objecting to his intimacy with Ms. Naza, and for
the complaint which the deceased had made to Nazam Dar about his daughter's intimacy with the appellant.
According to the complaint of Manzoor Ahmad Dar, his brother Mohammad Rafiq Dar had left his house to know about the result of his
brother Abdul Qayoom Dar and one Ali Mohammad Dar's son who had appeared in B.A/B.Sc Final Examination and he, along with others, had
been waiting outside the house for him to know about the results, when at about 3.30 p.m. he saw his brother coming out of the house of Ali
Mohammad Dar. His brother had walked hardly a few steps when the appellant intercepted, caught hold of him, and with intention to commit
murder, struck a blow on his head with a stone. He raised alarm and some persons from the vicinity came on spot. The appellant, however, is
stated to have succeeded in running away from the place of occurrence. He took his injured brother to the hospital.
On the written report of PW-1, a case FIR No. 35/05 was registered under Sections 307/341 RPC at Police Station Budgam.
Mohammad Rafiq Dar was shifted to Sher-I-Kashmir Institute of Medical Sciences, Srinagar where, after undergoing a brain surgery, he
succumbed to the injury on March 02, 2005.
After investigation of the occurrence, a Final Police Report was laid before the Chief Judicial Magistrate Budgam indicating commission of the
offence punishable u/s 302 RPC by the appellant. Offence u/s 341 RPC however, appears to have been dropped during the investigation of the
case.
Learned Chief Judicial Magistrate committed the case to the Sessions Court at Budgam.
Pleading 'Not Guilty' to the charge framed u/s 302 RPC, the appellant claimed to be tried.
The prosecution examined PW-1 Manzoor Ahmad Dar, the brother of the deceased, PW-2 Mst. Sakina and PW-3 Mst. Maimoona, the
daughters of Ali Mohammad Dar, PW-4 Ghulam Mohammad Sufi, PW-5 Showkat Ali Darzi, PW-7 Mst. Naza, daughter of Nazam Dar; PW-8
Mohd. Nazam Dar, PW-9 Ghulam Hassan Dar, PW-10 Ghulam Nabi Bhat, PW-12 Constable Ghulzar Ahmad, PW-14 Dr. Anil, PW-15 Dr.
Niaz Ahmad, FW-16 Rais Ahmad, PW-17 Manzoor Ahmad Photographer, besides PWs-18 & 19 who had investigated the occurrence.
When examined for his explanation of the circumstances appearing in the prosecution evidence against him, the appellant, pleading alibi, denied
his involvement in the case.
After appreciating the evidence produced before it, the trial Court of Learned Sessions Judge, Budgam found the prosecution to have
established its case and accordingly vide its judgment and order of December 18, 2008 and December 20, 2008 respectively, convicted and
sentenced the appellant u/s 302 RPC to Imprisonment for life, making reference to this Court for confirmation of the sentence.
We have gone through the evidence and the material produced by the prosecution, and considered the submissions made at the Bar by
Learned Counsel for the parties.
The resume of the statements of the witnesses examined during the trial of the case has been given by the trial Court in its judgment of
December 18, 2008, reference whereto, shall be made, wherever necessary during the discussion.
The arguments raised on behalf of the appellant projecting his innocence highlighting the defects appearing in the prosecution case and the
contradictions in the prosecution evidence, though noticed in the judgment, have not been dealt with by the trial Court.
We would, therefore, deal with the appellant's submissions on the aspects highlighted before the trial Court while appreciating the prosecution
evidence.
PWs-2 & 3, the daughters of Ali Mohammad Dar, outside whose house, Mohammad Rafiq Dar is stated to have been injured by the
appellant, cited as eye witnesses to the occurrence in the Final Police Report, have not supported the prosecution case saying that they had not
seen the appellant on spot when they came out of their house on hearing noise.
PW-7 Ms. Naza and her father PW-8 Mohammad Nazam Dar who had been cited by the prosecution to prove the motive of the appellant to
commit the murder of Mohammad Rafiq Dar, too have not supported the prosecution case. They have, on the other hand, supported appellant's
plea of alibi saying that PW-6 Fiaz Ahmad Sufi, another eye witness and the appellant had been playing Carom in their house when on hearing
noise, all of them came out to find Mohammad Rafiq Dar lying injured, and the persons present there were saying that the deceased had fallen
down from the staircase.
The success or failure of the prosecution case thus depends primarily on the acceptability or otherwise of the statements of PW-1 Manzoor
Ahmad Dar, the brother of the deceased, and PW-6, Fiaz Ahmad Sufi, a close relative of the deceased, because there is no other eyewitness to
the occurrence to support the prosecution story.
We have scanned the statements of these two witnesses in the light of the material the prosecution has produced in the case.
We find the initial version of the occurrence by PW-1, as it so appears in his written complaint, on the basis whereof FIR No. 35/05 was
registered at Police Station Budgam, to be different from the one he Had narrated while deposing in the Court in so far as the description of the
manner in which the appellant is stated to have attacked the deceased, was concerned.
According to the initial version, the appellant had intercepted, caught hold of, and thereafter struck the deceased with a stone, whereas in the
other version of the occurrence, the appellant is stated to have stealthily followed the deceased for some time and thereafter hit him on the head
from behind.
As against these two versions, the version of the occurrence in the statement of PW-1 recorded u/s 161 of the Code of Criminal Procedure is
that both the deceased and PW-1 had been proceeding to their place together when the appellant had stealthily followed the deceased and struck
him with a stone from behind.
The contradictions in the statement of PW-1, when considered in the light of the statement of the Investigating Police Officer that the initial
information conveyed to him about the occurrence was, that a fight had taken place in which the deceased had been injured with a stone, puts the
Court on guard to find out as to whether or not PW-1 's version of the occurrence in the Court could be believed for acceptance, and for that
purpose reference to the other statements and material on records becomes necessary.
The statement of the Investigating Police Officer that the initial information about the occurrence was that a fight had taken place in which
Mohd. Rafiq Dar had been injured with a stone, finds support from the Memo of the Injury Statement prepared by the Police and sent to the
Medical Officer Budgam for his expert opinion, which records the deceased to have received injuries in a scuffle (Marpeet). PW-5 Showkat Ali
Darzi too is stated to have been informed immediately after the occurrence that the deceased had been injured in a fight.
When asked to explain the above contradiction in his two versions about the description of the manner in which the appellant had hit the
deceased, PW-1 explained it saying that he was not in a fit state of mind and it was because of the hurry that the petition writer could not record it
correctly in the complaint that, the appellant had attacked the deceased from behind, although he had told him about the appellant's hitting the
deceased from behind.
PW-1 has indicated in his complaint EXPW1/1 that he would produce evidence and proof about the occurrence on spot. Although he
indicates in the EXPW 1/1 that number of persons of the locality knew about the occurrence, yet he does not name any one therein to be the
eyewitnesses to the occurrence because according to him the appellant had left before the neighbors reached on spot.
PW-6 Fiaz Ahmad Sufi, who has deposed to have seen the appellant hitting the deceased with a stone from a distance of about 35 while sitting
across a stream-let flowing between the place of occurrence and the grazing ground where he was sitting, has given a dramatic account of the
occurrence indicating him to have kept a close vigil on each and every moment of the appellant and the deceased. While giving graphic account of
the incident, he says that Mohd. Rafiq Dar had been walking on one side of the road, when he came towards the other side to follow the
deceased. He had been noticing the hands of both these persons and according to him, the deceased had put his hands in the Phern, the Gown
which is usually worn in winters in Kashmir. Appellant was carrying a stone in his right hand. After receiving the injury Mohd. Rafiq Dar had fallen
down on a heap of stones lying nearby. He, however, did not receive any injury while falling on the stones but got his clothes mud stained because
of his falling in the drain. PW-6 had helped the deceased in taking him to the hospital where he remained with him until his death in the morning at
10.30 a.m. His statement was, however, recorded on 5th of March, 2005 i.e. after a period of four days of the occurrence.
There is no explanation as to why PW-6, who is closely related to the deceased, being the son of the aunt of the deceased, had maintained
silence for a period of four days of the occurrence and two days after the death of Mohd. Raifq Dar, in making his statement to the police.
This witness has not indicated about the presence of PW-1 Manzoor Ahmad Dar on spot at the time of the occurrence.
Fiaz Ahmad Sufi's not noticing Manzoor Ahmad Dar anywhere near the place of occurrence at the time when he is stated to have seen the
appellant striking the deceased with the stone, makes his statement doubtful, in that, had he actually seen the occurrence, he could not have
avoided noticing Manzoor Ahmad Dar on spot who is stated to have seen whole of the occurrence from a distance of about 15'.
Reading the statements of PWs-1 & 6, in juxtaposition, in the light of the contradictions appearing in the two versions reflected in the complaint
and in PW-1's deposition in the Court, and in his statement recorded u/s 161 of the Code of Criminal Procedure where both PW-1 and the
deceased are stated to have been returning home when the appellant, following them stealthily, had attacked the deceased with a stone, it becomes
reasonably doubtful to believe their narration, additionally because these two witnesses do not indicate about each other's presence on spot at the
time of the occurrence.
The contradiction appearing in the FIR and the statement of PW-1 about the description of the manner in which the appellant is stated to have
hit the deceased, when considered in the light of other evidence on the records, hinting at a scuffle at the place of occurrence, Mohd. Rafiq Dar's
falling on a heap of stones shown to be lying at a distance of about 6' from the place of occurrence, the clothes of the deceased to have been found
drenched in mud during the incident when no drain is shown to be existing in the site plan near the place of occurrence which would have muddied
the clothes of the deceased, raise a reasonable doubt about the truthfulness of the prosecution story and the manner in which the occurrence had
actually taken place.
According to PW-1, he had carried with him the stone with which the appellant is stated to have hit the deceased along with him while going to
the Tehsil Office Budgam for getting the complaint drafted, and to the Police Station for lodging the FIR. This statement of the witness is difficult to
believe in the facts and circumstances of the case when the stone, as indicated in the seizure memo, is shown to have been seized on spot when
produced by PW-1. This is so because according to the statement of the witness he had remained all along with the deceased in the hospital till his
death on March 02, 2005 and it is thus incomprehensible that he would, in the interval, come to the place of occurrence to produce the stone for
its seizure by the police.
Perusal of EXPW 1/11, the seizure memo of the stone records the offence as one u/s 307 RPC whereas the offence indicated in the FIR
registered on the same day is shown to be one under Sections 307/341 RPC. It thus appears that EXPW 1/11 had been prepared by the police
after the death of Mohd. Rafiq Dar on 02.03.2005 when the version of the occurrence narrated in PW-1's complaint appears to have been given a
twist.
For all what has been noticed hereinabove, the prosecution, appears to have suppressed the genesis of the occurrence. The version of the
incident given by PWs-1 & 6, resulting in the death of Mohd. Rafiq Dar, cannot thus be believed in view of the discrepancies and major
contradictions appearing in the prosecution story.
Considering the evidence and material produced by the prosecution, the discrepancies and major contradictions appearing in the version of
PWs-1 & 6 about the manner in which the occurrence is stated by them to have taken place, We do not find it safe to rely on the statements of
PWs-1 & 6 to uphold appellant's conviction.
Accordingly, giving benefit of the reasonable doubt to the appellant regarding his involvement in the occurrence, We would, set aside the
judgment of December 18, 2008 and order of December 20, 2008 of Learned Sessions Judge, Budgam and acquit the appellant of the charge,
directing his release from custody forthwith, if not required in any other case.
The Confirmation Reference is accordingly declined.