Cr. Appeal No. 79/2013, MP No. 03/2015 and Confirm No. 27/2013. Case: Mohammad Iqbal Vs State of J&K. Jammu and Kashmir High Court
|Case Number:||Cr. Appeal No. 79/2013, MP No. 03/2015 and Confirm No. 27/2013|
|Party Name:||Mohammad Iqbal Vs State of J&K|
|Counsel:||For Appellant: P.N. Raina, Sr. Advocate and J.A. Hamal, Advocate and For Respondents: Seema Shekhar, Sr. AAG|
|Judges:||Mohammad Yaqoob Mir and B.S. Walia, JJ.|
|Judgement Date:||February 17, 2017|
|Court:||Jammu and Kashmir High Court|
Mohammad Yaqoob Mir, J.
By medium of this Criminal Appeal, Judgment and and order both dated 30.11.2013 passed by learned Sessions Judge Bhaderwah recording conviction and awarding sentence, are assailed.
For confirmation of sentence of life imprisonment, reference in terms of Section 374 CrPC (State Code) has been made, same is registered as Confirm No. 27/2013.
Learned counsel for the appellant at the very outset argued that there may be little scope for denying the occurrence but alleged act committed by the appellant does not fall within the ambit of Section 300 RPC punishable under Section 302 RPC. The act committed at the most may fall within the ambit of Section 326 RPC and even if the extreme view is taken, it may attract applicability of Section 304 Part-II RPC.
Learned Senior Additional Advocate General argued that the natural witnesses to the occurrence examined have given a vivid account as to what happened on spot. A gruesome murder has been committed in a most brutal manner, that too with all calculations. By no stretch of imagination the act committed can be said not to fall within the ambit of Section 300 RPC punishable under Section 302 RPC. The learned trial Court has passed a well reasoned judgment.
The prosecution case as unfolded reveals that on 29.06.2002 deceased Saidulla Paray and other persons were sitting in a hotel (a shop run under the style of Muslim Hotel) owned by Jameel Ahmed, in the meanwhile at about 12.45 PM, appellant (accused) entered, sat on a table, started writing letter, then quietly moved out and went to an adjacent Butcher shop of Haq Nawaz, picked up the Butcher's knife ("Toka" as referred to in the judgement impugned) from the Butcher's block ("wooden bar" as referred to in the judgement impugned), came back running and entered into the hotel. The Butcher Haq Nawaz chased him but while entering into the hotel gave two forceful blows with the butcher's knife one on the head and another on the face of the deceased, then left Butcher's knife there and ran away. He was again chased by Haq Nawaz (Butcher), while running towards old bus stand, Haq Nawaz raised voice, with the aid of CRPF personnel stationed there, accused was caught hold of and taken to the police station. The persons who were sitting in the hotel took the deceased to the SDH Doda. Police registered the case as FIR No. 82/2002 P/S Doda, filled up the Injury memo. In the SDH Doda, doctors noticing seriousness of the injuries and the condition of the deceased referred him to Sher-i-Kashmir Institute of Medical Science (SKIMS), Soura Srinagar for treatment. The deceased remained there under treatment till 16/17th July, 2002 and it is in the intervening night of 16/17th July, 2002 he succumbed to the injuries. Dead body was brought back to SDH Doda. CMO constituted team of doctors for conducting the post-mortem who after conducting the post-mortem prepared the post-mortem report. Initially case was registered for commission of offence punishable under Section 307 RPC and 4/27 Arms Act, and then altered to 302 RPC.
The investigation of the case on its completion culminated in filing the charge sheet (challan). On conclusion of trial, the accused has been convicted under Section 302 RPC and 4/25 Arms Act and sentenced to life imprisonment and fine of rupees five thousand (Rs. 5,000/-) under Section 302 RPC. In default of payment of fine to undergo further simple imprisonment of two months whereas under Section 4/25 Arms Act has been sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rupees one thousand (Rs. 1,000/-). In default of payment of fine to undergo further simple imprisonment for fifteen days.
During Trial, prosecution in support of the case has produced 11 out of 14 prosecution witnesses. PW-5 was given up by the PP whereas PWs- 11 and 14 were not produced.
After closure of the prosecution evidence, the accused has been examined in terms of Section 342 CrPC. The incriminating circumstances have been put to him. He has denied complicity in the crime and claimed to be innocent. After hearing the PP as well as defence counsel, learned trial Court vide order dated 20.11.2012 opined that it is not a case of no evidence. The accused is required to enter upon the defence, as such had asked him to enter upon defence. The accused in defence appears to have submitted a list of six witnesses, four were given up as is clear from the statement of the defence counsel recorded by the trial Court on 21.06.2013 and only two were produced and examined.
Out of listed six natural witnesses to the occurrence, five have been examined whereas one-Abdul Rashid listed witness No. 5 was given up as having been allegedly won over by the defence.
Five independent natural witnesses to the occurrence...
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