STATE OF J&K Vs. NARESH KUMAR AND OTHERS

JUDGEMENT

(1.) These two appeals are directed against the judgment and orders dated 23.11.2005 and 15.10.2007 passed by the Sessions Judge, Udhampur in File No. 38/Sessions and 62/Sessions respectively, acquitting the appellants of the charge under Section 302/34 RPC. The case arose out of FIR No. 64/2002 registered at Police Station Rehmbal.

(2.) At the outset, it would be appropriate to mention here that after filing of the charge sheet, the trial was concluded against two of the accused persons as the third accused, namely, Naresh Kumar, absconded and was proceeded under Section 512 Cr.P.C. The charge was accordingly framed against the other two accused persons under Sections 302/34 RPC and 4/25, 5/25 Arms Act and they were accordingly tried. After their acquittal vide order and judgment dated 23.11.2005, the absconding accused, Naresh Kumar surrendered before the trial Court and he was separately tried and vide judgment and order dated 15.10.2007 he too was acquitted of the charges. The State has preferred CRAA No. 30/2006 against the judgment and order dated 23.11.2005, acquitting two of the accused persons and CRAA No. 04/2008 has been preferred against the acquittal order dated 15.10.2007 acquitting third accused, hence the two acquittal appeals.

(3.) The persecution case, as pleaded in the challan, is that on 19.08.2002 information was received at Police Station Rehmbal at 7 PM that two non-Sikh and one Sikh persons came on a motor cycle bearing Registration No. JK02G-6798 and attacked one Gani Ahmed son of Hakim Din, who was sitting in the shop of one Sham Lal at Kehmbal Danga. One of the persons fired whereas the others inflicted sharpe edged weapon injuries on the person of Gani Ahmed due to which he was seriously injured and succumbed to the injuries on spot. After registration of the FIR the Investigating Officer visited the spot of occurrence where the dead body of Gani Ahmed was lying in a pool of blood. The site plan was prepared and after completing the formalities the dead body was sent for the post-mortem. The prosecution case was that the accused persons have attacked Gani Ahmed at the shop of Sham Lal where he was purchasing cloth for his wife along with his minor child. During the investigation it was found that accused Naresh Kumar alias Billa entered the shop of Sham Lal whereas the other two accused persons kept waiting outside and Gani Ahmed was dragged by Naresh Kumar out of the shop, the other accused persons inflicted Kirch blow on the person of Gani Ahmed and accused Naresh Kumar was alleged to have fired at him. The wife of the deceased, namely, Parveen Akhtar continued to raise hue and cry for help but nobody intervened. It was the further case of the prosecution that after accomplishing their job, i.e. killing Gani Ahmed the accused persons fled away from the place of occurrence in a Matador No. JK02E- 4259 and scooter No. JK02N-2023, by leaving the motor cycle bearing registration No. JK02G-6798 on spot, which were seized during investigation.