Mere Presence At Crime Scene Insufficient For Conviction: Jammu & Kashmir and Ladakh High Court Acquits Accused In Fatal Free Fight Case

It was held that when the evidence is the same for all accused, and many have already been acquitted on that basis, selective reliance on the same "shaky and untrustworthy" material to convict a few is perverse and results in a grave miscarriage of justice.

​The Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar observed, “When the evidence is considered cumulatively, it becomes evident that the prosecution case lacks reliability. Mere presence of the appellants at the scene of occurrence, even assuming their participation at some stage, is insufficient to fasten liability in the absence of clear, cogent and trustworthy evidence establishing their specific role and common intention…There was a land dispute and quarrel between the parties. Though the appellants were stated to be the aggressors, this fact has not been proved from the evidence on record, as the oral evidence led in this regard is not only contradictory but also insufficient.”

AAG Alla-u-din Ganie appeared on behalf of the Petitioner, whereas Senior Advocates S. T. Hussain and Z. A. Qureshi appeared for the Respondents.

Facts of the Case

The case dates back to May 19, 1997, involving a violent clash between residents of village Khull Choher and Renipora over a disputed pathway across grazing land (Kachahri). The prosecution alleged that fifteen accused persons, armed with axes and lathis, intercepted the complainant party while they were moving cattle toward the forest. During the altercation, the deceased, Ghulam Hassan Reshi, was allegedly struck on the head with an axe by Nazir Ahmad Bhat, leading to his eventual death. The trial court initially convicted four individuals (Appellants 1-4) under Section 304-I/34 of the Ranbir Penal Code while acquitting the remaining eleven accused.

Contention of the Parties

The State contended that the trial court erred by convicting the appellants only under Section 304-I RPC instead of Section 302 (Murder), asserting the act was premeditated and carried out in furtherance of a common object. The State also argued that the three-year sentence imposed was "grossly inadequate" and "manifestly lenient".

It was argued by the Accused that the incident was a "free fight" involving large groups from both sides, making it impossible to attribute specific criminal intent or common object to individuals. They pointed to material contradictions regarding the place of occurrence, the timing of the incident, and inconsistencies between ocular testimony and medical evidence

Observations of the Court

The Court noted significant investigative lapses and evidentiary contradictions. Witnesses provided conflicting accounts of whether the attack happened while going to or returning from the jungle, and gave varying locations for the crime scene.

Furthermore, while the prosecution claimed an axe was used, medical evidence suggested the fatal head injuries were caused by a blunt object, possibly a stone or the blunt side of a weapon, which could not be conclusively linked to the appellants.

The Court observed, “Applying the aforesaid principles to the facts of the present case, it emerges that there are conflicting versions with regard to the precise location of the alleged clash between the two groups of villagers, as well as with respect to whether the incident occurred while the complainant party was proceeding towards the jungle or while it was returning there from. These are two distinct and mutually exclusive situations which cannot be conveniently merged so as to infer that the prosecution has proved its case in material particulars. Where the prosecution evidence itself gives rise to two competing probabilities, the prosecution is under a legal obligation to establish either of them with clarity and certainty. If doubt arises regarding the timing or circumstances of the incident, such doubt must necessarily ensure to the benefit of the accused. The prosecution cannot evade the consequences of such doubt by merely glossing over or trivialising the issue of timing, as it strikes at the very root of the prosecution case.”

The Court emphasized that the "free fight" nature of the confrontation involving hundreds of villagers made the selective conviction of only four persons unsustainable when the evidence against them was the same as that against those already acquitted.

“The nature of the injuries caused to the person of the deceased has been proved to be fatal; however, it has not been proved beyond doubt that the injuries inflicted on the deceased were perpetrated by the appellants. When there is a free fight and stone pelting by both sides, the probability of the deceased being hit by a stone from a distance cannot be ruled out, especially considering that the injury sustained was caused by a blunt object. The fact that an offence under Section 336 formed part of the charge-sheet strengthens the defense case that both parties were pelting stones at each other. Once this is so, it cannot be said with certainty that the deceased suffered fatal injuries due to the acts of the appellants.”, the Court observed.

Conclusion

“There being a presumption of innocence in favour of the accused, and in view of the acquittal of as many as ten accused persons, the same set of evidence could not have been used to fasten criminal liability on appellants 1 to 4. Suspicion, however grave, cannot take the place of proof. There were clear lapses in the investigation, giving rise to serious doubt, and therefore we are not persuaded to believe that the prosecution has proved its case beyond reasonable doubt. We are of the considered view that the finding of conviction recorded against appellants 1 to 4 is not only perverse but is based on shaky and untrustworthy material. By placing reliance on such evidence, a grave miscarriage of justice has resulted in fastening criminal liability on the appellants.”, it was concluded.

Accordingly, the Court set aside the conviction and acquitted the accused.

Cause Title: State Of J & K Through Additional Advocate General v. Nazir Ahmad Bhat and Ors. [CRAA No. 11/2003 c/w CRA No. 08/2002]

Appearances:

Petitioner: AAG Alla-u-din Ganie with Advocate Naubahar Khan.

Respondents: Senior Advocates S. T. Hussain, Z. A. Qureshi, Advocates Aswad Attar, Nida Nazir, Razia Amin, Rehana and H. Furrahi.

Click here to read/download the Judgment