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| DB set-aside life-imprisonment of alleged militant | | | Early Times Report
Jammu, Aug 26- Setting aside the conviction awarded by the Principal Sessions Judge Kathua to the alleged militant, the Division Bench of J&K High Court Jammu Wing today ordered that the appellant shall be set at liberty forthwith if not required in any other case.
The Bench comprising Justice Hakim Imtiyaz Hussain and Justice JP Singh observed that no doubt it stands established from the evidence that the militants were present at Khandara Top hiding in a doka and when the police patrolling party reached there, the militants fired upon them resulting into killing of Parshtom Singh. But there is no sufficient and cogent evidence to show that there was a conspiracy between the militants and the appellant and that the militants fired upon the police party at the instance of or on the abetment of appellant.
This approved for reporting judgment written by Justice Hakim Imtiyaz Hussain for the Division Bench observed that from the contradictory statements it is difficult to believe the prosecution version that it was at the instance of the appellant, the militants opened fire on the police party. Conspicuously no eye-witness stated that the appellant told the militants to open fire upon police party. The allegation is that he only alerted them. Recovery of RDX and battery etc from the house of appellant is also doubtful. It is said that immediately after the occurrence, the militants left the spot, and Constable Mool Raj accompanied by other constables went inside the house of appellant and found some material in a bag which according to them was RDX and handed over the recovered material to SHO. The RDX was recovered from house while as the fact as narrated by the witnesses is that the seizure memo prepared only after the SHO reached the spot when RDX had already been recovered by the police party from the house has not been examined. The prosecution has not produced any evidence to establish that this material was on chemical examination found to be RDX. Thus on mere assertion of the prosecution how can it be said that the material was RDX or this material was recovered from the appellant’s house. DB does not find sufficient and satisfactory proof by the prosecution on this fact, the judgment says.
According to the prosecution case on August 31, 2003 a police party of Special QRT group Malhar was on patrol in the area which was infested with militants who had waged a Guerrilla war against State. The police party headed by Constable Mool Raj conducted search in Kamlog Gala and Churchur Gala area. When they reached Khandara near the house of Bashir Ahmed appellant, they saw that some militants were hiding in the dohk of the appellant. The allegation against the appellant is that when the appellant saw the patrolling party, he cried loudly to give a signal to the militants to inform them about the police. On this the militants started indiscriminate firing on the police party. The police party also opened fire and the encounter continued for about half an hour. During the encounter SPO Parshtom Singh sustained a burst and died on spot. The militants however managed to run away from the spot. The police party searched the house of appellant and recovered RDX weighing 5 KG, 2 batteries and six small cells from there.. A case u/s 302, 307, 120-B and 109 RPC r/w sections 4 and 5 Explosive Substance Act was registered and after completion of the investigation challan was presented in the Court of law and accused was convicted and awarded life-imprisonment by Principal Sessions Judge Kathua. JNF
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