Dismissed

State of J and K v. Abdul Qayoom

J&K HC16 Mar 2021CRAA/24/2007

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the acquittal of Abdul Qayoom charged with murder and waging war. Holding the prosecution witness's statement self-contradictory and recovery evidence ambiguous, the court found the evidence insufficient to prove guilt beyond doubt.

What did the court decide?

The appeal was dismissed and the acquittal was upheld. The trial court record was sent back.

State of J and K Vs Abdul Qayoom — Murder and Culpable Homicide | J&K HC (2021)

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

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Pronounced on :/6 03.2021

CRAA No. 24/2007

State

...Appellant

Through Mr. Bhanu Jasrotia, GA.

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v/s

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Abdul Qayoom .. .Respondent

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Through Mr. Mohd. Latief Malik, Advocate.

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Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

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JUDGEMENT

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Per- Puneet Gupta, J

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The appellant-State has preferred the appeal against the judgment dated 09.02.2007, passed by the court of Principal Sessions Judge, Rajouri, whereby the respondent has been acquitted of the charges framed against him under Sections 302/120-B/121/122/123/449 RPC read with Sections 4/27 and 7/25 Arms Act in a case arising out of F.I.R. 220/2003 registered with Police Station, Rajouri on 19.05.2003 on an information received from reliable source that some unknown militants on the intervening night of 18/19th May, 2003 entered the house of Mehboob Bakerwal, resident of Nagrota Chowkian Mohra Khet, and killed Khatoon Begum, Haniefa Begum, Zakir, Rashid Ahmad, Maroof, and Mumtaz Begum by slitting their throats with knife and the dead bodies are lying on spot. The investigation was conducted and on the completion of the same charge sheet came to be presented before the court of learned District Mobile Magistrate, Rajouri, who committed the case to the Court of Sessions, Rajouri as the offences were exclusively triable by the court of Sessions.

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2 CRAA No. 24/2007

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The appeal was filed on the grounds: that judgment is passed against law and facts of the case, the trial court has not appreciated the prosecution evidence and though the prosecution witnesses fully corroborated and supported the case of the prosecution and successfully proved the allegations against the respondent yet the respondent was acquitted of the aforesaid offences.

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The charges framed were denied by the respondent Abdul Qayoom (referred as accused in the appeal), and thereupon the prosecution was directed to produce its evidence to prove the charges in support of its case. Before proceeding further, it may be mentioned herein that the respondent, Abdul Qayoom, was made accused in the case though not named in the F.I.R. on the basis of investigation carried out in the present case. The respondent, Abdul Qayoom, was found to have links with militants and also worked as their guide. Two militants, namely, Saif Ullah and Wazir Khan,_ffom-Eakistan are stated to have visited the house of Abdul Qayoo^^^fheQi^^^^^r^ht of 4-5th May, 2003 and he took tho^ tw^erson#t^the house of ^azir Hussain, who is // % \ Army Personnel, and staye^Weri^asU threat waSj extended by those persons. The'^next^ay whei||p^mfussaim^am^^ know of Abdul Qayoom having^r^^^tho^'milita hi^^ouse he threatened Qayoom that he will ihfmmirt-he-polig.e::and Army and get him arrested. Those two above named militants got killed on the same day in the encounter near the house of Wazir Hussain which made the accused Abdul Qayoom suspicious about the Wazir Hussain and his family members regarding providing information to the police and army and got them killed and that they will get the accused Abdul Qayoom arrested. As Abdul Qayoom suspected Wazir Hussain and his family in the elimination of the two militants and that he will also be arrested, therefore, on the intervening night of 18/19th May, 2003 the accused Abdul Qayoom along with three unknown militants came to the house of Wazir Hussain but as the house was locked they went to the house of Mehboob Bakerwal, father of Wazir Hussain, and killed four ladies and two children by slitting their throats. The militants belonging to Jaish-eMohammad could not be identified and the challan came to be filed against the respondent, Abdul Qayoom.

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CRAA No, 24/2007

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The prosecution examined number of witnesses in support of its case. The brief account of the depositions of the witnesses is as under:

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PW-Lal Begum has deposed that she was at Kot Dhara with her daughter Zatoon. After she offered Namaz-e-Isha, three persons visited the house and the accused Qayoom was also with them and asked as to why they have not tied the dogs and have kept them loose and upon this the dogs were tethered. Then those persons enquired if she possesses axe, lathi and pathi to which she replied in negative. Thereafter the neck of Khatoon Begum was tied with dupatta and her throat was slit. Two children were also slit from throat and thereafter those persons ran away from the spot. She remained there whole of the night and on the morning many persons came on spot. In cross-examination the witness has deposed that she is before the court today. She had seen those persons from close distance. Her eyesight has become weak due to old age and after the death of her daught^her eyesight has become weaker. The persons were in civ-il'^rpss/ahd(!|h'e1)dQes.,n0t^know the place to which they belongedfto. She did not seB'their faces. ^

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I \ PW-Dr.Itibal Malik hasmondu^ted the post-mortem of the deceased and issued thevxertificates ahd^t^feis opinion regarding cause of death of the

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PW-Abdul Haq K^deposed-tha^e^knows the accused present in the court. He came to know of the occurrence in the morning. The witness is signatory to certain documents prepared during investigation. He was informed by her maternal grandmother Lai Begum of the accused accompanying the three militants and who told his grandmother that if she raised hue and cry she will also be killed. He was not present on spot at the time of occurrence. The witness has further deposed that he has seen the accused, Abdul Qayoom, with militants though their identities are not known to him. It is wrong to state that the deceased persons had got killed and helped in apprehending the militants and in order to take the revenge the militants had carried out the killings.

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PW-Mohd. Noorani, Panch of the village Nagrota Chowkian, is not eye witness to the occurrence and is only signatory to certain documents prepared during investigation.

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CRAA No. 24/2007

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PW-Mohd. Khan is also witness to the seizure memo of blood stained clothes of the deceased and one shawl and one blanket. He is also not eye witness to the occurrence. He was informed by Lai Begum that the accused had identified the victims and got them killed. The army did not carry attack in his village and the militants were killed in other village.

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PW-Altaf Hussain has stated that Mehboob is his grandfather and Khatoon Bibi is his grandmother. Lai Begum had raised hue and cry at night on 19.05.2003 but because of fright he visited the house early in the morning. Lai Begum was saying that the accused present in the court came at night and killed six persons including four women and two children. As per the witness, a shawl was found near the dead bodies outside the house and was blood stained and belonged to accused Abdul Qayoom. Police also found one blanket near the bushes which also belonged to accused Qayoom. He identified the shawl and blanket by police U \ today. The s hawl and blan keLd|^ot|bkeLd^otlb ear the name opf any person. He is not witness toXthe occurrence! M PW-MohdAiT^4^1so hot Wtnes^s^to thr occurrence. He also speaks of chadder lyin^o^the_dead2b.oidy and blanket lying near the spot and belonged to the accused Abdul Qayoom. The shawl and blanket are of common type but they belonged to the accused. It is wrong to say that the occurrence was an act of revenge as his family got the militants eliminated.

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PW Naseeb-ullah Khan has conducted the investigation in the case from 19.5.2003 to 4.6.2003. He visited the spot and prepared certain seizure memos including that of shawl and blanket. The dead-bodies were not meddled with before the police reached the spot. Two militants were killed near the place of occurrence about ten-fifteen days before the occurrence in question took place. PW-Ashok Kumar Sharma has partially conducted the investigation and presented the challan against the accused. The witness has recorded the statement of some of the witnesses. The statement of PW Lai Begum was recorded on 26.6.2003. He cannot say who

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CRAA No. 24/2007

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recorded the statement of Lai Begum on 19.5.2003. He did not visit the spot.

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It was through above evidence that the prosecution intended to prove its case against the accused. On the closure of prosecution evidence the incriminating circumstances appearing in the prosecution evidence were put to the accused in terms of Section 342 Cr.P.C. The accused denied the allegations.

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The learned counsel for the appellant has placed reliance on the statement of PW-Lal Begum who is stated to be the sole eye witness to the occurrence. It is argued that the statement of the said witness in clear terms mentions of the accused, Abdul Qayoom, being present on the spot along with other militants and perpetrating the crime.

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The learned counsel for the respondent has argued that the statement of the said witness when read in whole makes out that the witness did not recognize and identify the persons-wlm allegedly committed the crime. 8. PW Lai Begum^^ho^^^^^s|arQ'3i|s^^ prosecution being sole eye-witness in/the case, has^Jstatkd during examination-in-chief that // w accused Qay^oom was accprngan^tpg three persons and was present during the coume^Qf occur^etl^,#i!ii^during^erosSyexamination she has stated that due tojvol^^l'ihe^e^s^gMj^^^^come weak and further specifically stating that sKB^hadmot-seelT^the^ of those persons. The argument of the learned counsel for the appellant that the witness has deposed of having not seen the faces for the persons other than the accused Abdul Qayoom as she had specifically mentioned of the presence of Abdul Qayoom during the course of occurrence in her examination-in-chief. The Court is of the view that though all important witness Lai Begum has mentioned the name of Abdul Qayoom in examination-in-chief yet she has referred to having not seen the faces of all the persons( ^ visited her house and carried out the killings in the house. It is unfortunate that the prosecution did not take pains to get clarification from the witness in re-examination regarding the persons for which she had deposed of having not seen the faces. Had the prosecution been careful some clarity could have been on the board in this respect but that did not happen in the present case. A benefit of doubt about the presence

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CRAA No. 24/2007

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of the accused on spot qua the statement of the witness has to be in favour of the accused. The other aspect of the statement is that even if the court is to take into consideration that the said witness has indeed spoken of the presence of the accused in addition to other persons on the spot at the time of occurrence yet the court finds no overt act having been attributed to the accused during course of occurrence by the witness. Except for stating presence of the accused on spot there is no murmur in the statement of the witness about the accused carrying the killings himself or helping the others in their diabolical act. Mere presence of the accused, in any case, cannot implicate him in the case. There can be every possibility that the accused was forced to accompany the other three persons to the house where killings took place. Some of the prosecution witnesses deposing that PW Lai Begum informed that the accused threatened her and carried the killings- the fact which is not deposed by the witness during her statement in the court. The statement of the all important?is''halfjb,ake^®d7 fails'^t'tKimpress this court of the involvement oEthe accused in th^'c^se in hand. d (^0 % 9. The other evidence on whic^h^^p^llant relies upon is the recovery of shawl and blanket from the shb¥inlthe bushes.and which are exhibited as It is vehemently argued on behalf^of^^d^appellant-That^^^Th^tatements of PWs Altaf Hussain and Mohd. Amin cormect the accused with the commission of offence as both the witnesses have stated that the shawl and the blanket found near the spot and seized by the police belonged to the accused Abdul Qayoom. PW-Mohd. Amin and PW-Altaf Hussain are not signatories to the seizure memo of blanket and shawl. PWs-Wazir Hussain and Mohd. Khan are the only witness to the aforesaid seizure memos of the articles, namely, shawl and blanket. The blanket and the shawl do not bear any specific mark, feature or name as per seizure memos which can be identified with the accused. The statements of the witnesses that the both the articles belong to the accused is general in nature. PW Altaf Hussain says so because the accused used to visit the house and PW Mohd. Amin identifies the two articles as that of the accused though stating in the same breath that both the articles are of common type. To say the least, both the articles cannot be said to be of

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CRAA No. 24/2007

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the accused Abdul Qayoom and thus relating the accused with the commission of offence.

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The Court does not find any other evidence worth on record which can connect the accused with the commission of offence. The prosecution has brought Dr. Iqbal Malik in the witness box who conducted the post mortem in the case but his statement can be of no consequence to the prosecution unless the other evidence points finger towards the involvement of the accused in the commission of offence. The statements of two investigating officers, again, are not significant in the case in hand. The statements of the prosecution witnesses, family members of the deceased, to the effect that the accused bore the grudge against the family of deceased as the accused was of the view that they were involved in the killing of the militants or may cause his arrest and that was the reason of the accused participating in the gruesome crime does not by itself prove culpability of the accused.

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The trial court has?^p^edaf^dQ100u^ence^^ right perspective by holding that th^^^^te^nt of JPVsLal Beg^, the>,sole eye witness, is if \ contradictory/with regard t®th^i'^ntification of the accused and does not appear to be convincing,^il^M'^d trustworthy.^Whatever the other witnesses have stated%b'out fhe alleged^Bcurrenee is only hearsay and cannot connect the accused:^.th_the-CQmrrfission of offence.

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No doubt, the occurrence is horrendous and heart-wrenching in which the lives of innocent including children of tender age were taken away yet the same cannot be the reason to hold the person guilty unless the prosecution proves its case against the accused beyond shadow of doubt. The prosecution evidence has failed to prove the case against the accused beyond shadow of doubt. The circumstances when viewed in the light of the facts of the case do not rescue the case of the prosecution from getting knocked out.

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This Court finds no reason to take contrary view to the one held by the trial court whereby it acquitted the accused of the charges framed against him.

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In addition, the trial court has also taken care of the charges framed under Sections 121, 122 & 123 RFC having failed on the legal ground that the prosecution has not been initiated on a complaint made by the

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8 CRAA No. 24/2007

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District Magistrate and, therefore, the provisions of Section 196 Cr.P.C have not been complied with. Cognizance for these offences on the basis of FIR and charge framed is without jurisdiction is what is held by the trial court.

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In the light of the discussion made above, the appellant- State has utterly failed to make out a case for setting aside the order of acquittal of the respondent and record conviction against him in the present appeal. The appeal is without merit and is dismissed. The record received of trial court be sent back.

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(PUNEET GUPTA) (SANJEEV KUMAR) JUDGE JUDGE

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Jammu:

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16.03.2021 Pawan Chopra

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The judgment is pronounced by me in terms of Rule 138 (4) of the

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Jammu and Kashmir High Court Rules, 1999.

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Jammu: 16.03.2021 (SANJEEV KUMAR) JUDGE

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PAWAN CHOPRA 2021.03.19 15:06 I attest to the accuracy and integrity of this document

State of J and K v. Abdul Qayoom

Case brief

What is this about?

What did the court decide?

State of J and K v. Abdul Qayoom

Case brief

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