ATTA MOHAMMAD Vs. STATE OF J&K

JUDGEMENT

(1.) Shri Atta Mohammad S/o. Sh. Nizam Din R/o. Lohai, Tehsil Billawar-appellant herein, was arrested by Police Station Billawar sometime in 1st week of November, 2003 in connection with case FIR No. 84/2003 under Sections 376/363 RPC. During his custodial interrogation, appellant allegedly admitted to have been a member of militants outfit Hizbul Muzahideen and to have alongwith other militants, namely, Mohd. Mushtaq alias Bittoo, Mohd. Hussain, alias Junaid, Aijaz Anjum alias Hyder and Mohd. Abbas alias Qasid in May, 2003 kidnapped one Kamlesh Kumar alias Kamloo from a forest in Bani area and later done him to death and buried dead body near the hideout set up by him and other militants in the forest. Sub Inspector, Kishor Lal, Incharge Police Station Billawar on 08.11.2003 recorded his statement and addressed a docket through Jagat Singh Constable 185 to SHO Police Station Bani informing him about the disclosure statement made by the appellant. Alongwith the docket, disclosure statement of appellant recorded in presence of Bhagat Ram S/o. Makoru R/o. Madhon and Chet Ram S/o. Mangu R/o. Dungal was also forwarded to SHO Police Station, Billawar. The receipt of the docket and the disclosure statement prompted Police Station, Bani to register case FIR No. 37 of 2003 under Sections 302/34/147/148 RPC. The investigation was taken over by SHO Police Station, Bani. The Investigating Officer took over custody of the appellant from Police Station, Billawar recovered the dead body of Kamlesh alias Kamloo S/o. Makoru R/o. Madhon from the forest allegedly at the instance of the appellant and after recording statements of witness and taking other connected steps, concluded investigation as proved against the appellant and three other accused, namely, Mohd. Mushtaq alias Bittoo, Mohd Hussain alias Junaid and another accused with code name Arshid. However, Mohd. Mushtaq, Mohd. Hussain and code name Arshid could not be traced during investigation and were shown as absconding. The chargesheet was presented before Judicial Magistrate First Class, Bani in presence of appellant and in absence of other accused. The case was committed to the Court of Sessions on 31.01.2004.

(2.) The case set up by the prosecution in the charge sheet was that the appellant and other militants were members of outfit of Hizbul Muzahideen and operating in Bani forest; that Shri Kamlesh Kumar alias Kamloo S/o. Makoru R/o. Madhon Billawar on 12.05.2003 went to Village Dungal to purchase corn (maize); that after making the purchase he on his way back to his village decided to pluck leafy vegetables (Krode) from the local forest and while doing so reached Mand Nallah; that the group of militants who had set up a hideout in the forest spotted the deceased and taking him to be an informer of Security Forces caught hold of him, strangulated him to death and thereafter buried his dead body in a Khud near their hideout. Two of the militants involved in the occurrence, namely, Aijaz Anjum alias Hyder and Mohd. Abbas alias Qasid were latter killed in an encounter on 08.11.2003. The other three militants, namely, Mohd. Mushtaq alias Bittoo, Mohd. Kussain alias Junaid and unknown militant alias Arshid were stated to be still active but not traceable. It was alleged that the dead body of the deceased was recovered at the instance of the appellant from the local forest in presence of prosecution witnesses and subjected to postmortem examination. Prosecution claimed to have collected sufficient material during investigation, connecting the appellant and his accomplices with the crime. The trial Court proceeded under Section 512 Cr.P.C. against the accused except the appellant.

(3.) The appellant was formally charged of the offence punishable under Sections 302, 201, 147, 34 RPC on 06.08.2004. The appellant denied the charge and asked for a regular trial. The other two accused, namely, Mohd. Mushtaq alias Bittoo and Mohd. Hussain alias Junaid (accused 2 & 3) were produced before the trial Court on 17.05.2006. They were formally charged of the offences punishable under Sections 302/201/147 RPC on 20.07.2006. They pleaded not guilty. However, the accused opted not to cross examine the witnesses who had appeared in the witness box in their absence and were already cross examined by the counsel for the present appellant (accused No. 1).