MOHAMMAD RAFIQ Vs. STATE OF J&K

JUDGEMENT

(1.) MAJOR Narinder Singh, Company Commander, F COY 39 Rashtriya Rifles Grenadiers, stationed at Jagal, Mendhar on 8th December 2006 received a source information regarding presence of terrorists in the area under his control. The information prompted him to launch joint search operation with CRPF and SOG Mendhar in general area Banola Kaneti. While search operation was on, the search party came to know that one terrorist was holed up in appellantsb residential house at Kaneti. It was learnt that the appellants to help the terrorist escape arrest, kept him locked inside an alimirah/cupboard in the house. The information received made Major Narinder Singh to deploy a search column at 730 hours, to the target area i.e appellantbs house. The search party went into the house and found an alimirah locked. The appellants were not found in the house. However, their two daughters were present in the house. The search party asked the younger daughter namely Ms. Kiran Firdous to get keys of almirah from her mother Azmat Bi, who was stated to have gone to perform her duties in the local school. Ms. Kiran did not return and the head of the search party made a similar request to Ms. Anjum Firdous, elder daughter of appellant no. 1. Ms. Anjum also did not return with the keys. Shri Singh thereafter went to appellantbs second house at Salwah met Azmat Bi wife of appellant No.1 and mother of appellant No.2 and requested her come to her house at Kaneti and help the search party to search the house and the locked almirah. Mst. Azmat Bi avoided to cooperate with the search party, leaving no option with the Company Commander but to search the almirah in absence of the owner of the house (appellant no. 1) or any of his family members. He, however, associated two Panchayat members, namely, Umer Din and Mohammad Sharief, with the search operation.

(2.) THE almirah was broken open at 2145 hours. The moment it was broken open, the terrorist holed up inside almirah opened indiscriminate fire on the search party, resulting in death to Security Force personnel, namely, Virender Singh 2694028AGDR and a civilian b " Mohammad Sharief. Shri Jung Sher Ali JC 450086X NB Sub was injured in the firing incident. The search operation continued till 1730 hours 9th December 2006. The terrorist identified as Abu Suhail alias M2 District Commander LET was also gunned down. The search party seized arms and ammunitions and other items including a mobile phone Nokia 6600 in use of the dead terrorist.

(3.) SHO Police Station Mendhar presented the Charge Sheet before JMIC, Mendhar on 24.2.2007. The case was committed to Sessions Court, Poonch on 24.2.2007 itself. The appellants were on 8.9.2007 formally charged of offence punishable u/s 302, 307 read with 120 B RPC. They denied the charge and claimed to be tried. The prosecution was asked to adduce evidence to substantiate the charge. The prosecution examined as many as 14 witnesses to prove its case. The witnesses who crossed the witness box, include members of the search party namely Major Er. Rama Mohan, Major Narinder Singh, Sepoy Rotus, Grenadier Rakesh Kumar, Jung Sher Ali. The civilian namely Umer Din who was associated with the search operation, constables Mohammad Faqir and Zubair Ahmad witnesses to the seizure made by the Investigating Officer, Dr. Parvez Ahmad Khan who conducted post mortem examination, Shri Pardeep Kumar a local photographer, claimed to have taken photographs of the crime scene and developed the photographs, found stored in Nokia 6600 cell phone recovered from the deceased terrorist also appeared in the witness box.