GULZAR AHMED MIR Vs. STATE

JUDGEMENT

(1.) BY this common judgment petition 561A, Cr. P.C. No. 46/2002 and two criminal Revision petition Nos. 17/2002 and 4/2003 are being disposed of as all these petitions are directed against the same order dated 16th of July 2002 passed by the Ld. Sessions Judge, Anantnag.

(2.) BY the chargesheet filed before the Sessions Judge, Anantnag seven accused persons named in the order of the Ld. Session Judge are alleged to have kidnapped and killed the deceased Mohamad Maqbool Mir on 1.9.2001 by beating and shooting him with A.K. 47 gun. PWs Hamid Laway and Yousuf Dar are the eye witnesses. Their evidence has been relied mainly by the Ld. Sessions Judge for framing charge against the accused Gulzar Ahmad Mir for commission of offences under sections 364, 302 and 149 RPC. Broadly speaking these eye witnesses in their statements recorded under Sec. 161 Cr. P.C. have stated that when they went out in search of the accused at the scene of occurrence they saw that the deceased was tied with the ropes and was being beaten up by eight/ten persons out of which they identified accused Gulzar Ahmad Mir, Iqbal Mir, Yaqub Mir, Iqbal Mir and Farooq Laway; that the deceased was crying for help. Then after some time there was complete silence and twenty minutes after they heard gun shots. They watched this from the place where they had concealed themselves, out of fear, when the accused went away, they went to the scene of occurrence and saw the deceased dead.

(3.) THE evidence of these witnesses clearly implicates the accused and the Ld. Trial Judge has ordered for framing up of the charge on the basis of the aforesaid evidence against accused Gulzar Ahmad Mir, while the other accused whose names appeared in the evidence are absconding; as such no order for charge against them has yet been made. The Ld. Counsel for the petitioner accused submits that FIR and Criminal proceedings against the accused should be quashed because there is contradiction between the evidence of these eye witnesses and the other witnesses. As according to Mr. Lone the other witnesses have not implicated the accused. I am not in agreement with the Ld. Counsel. Evidence of each witness requires to be considered at its own face value and after taking the version in the statement, to be truthful it is to be seen whether commission of any offence is disclosed. Contradictions between the two or more witnesses at the stage of charge is not to be taken note of because such contradiction can only be material for assessing the credibility and value of the statement made during the trial. If there is clear evidence of any witness available in the report submitted by the Investigating agency under Sec. 173, sub -section (2) indicating the commission of an offence by an accused such evidence must be accepted for the purposes of framing of the charge. This court will be loath to interfere with the framing of the charge by a criminal court unless there is a legal bar to the continuance of the criminal proceeding or framing of the charge or there is no evidence, prima facie to indicate the commission of any offence, I am supported in my view by the judgment of the apex court reported in (2001) 9 SCC page 631 in which it has been held as follows: