DB gives benefit of doubts to HM Militant in murder case

gy correspondent Jammu may 4
[ May 04, 2017 ] in a criminal appeal filed against the judgment of trial court whereby Trial Court awarded life-imprisonment, under Section 302/34 RPC to Mohammad Hussain, Mushtaq Ahmed and Gul Mohammad, all residents of Ramnagar tehsil (revenue unit) under Udhampur District for killing Arshad Begum and Amina Begum with sharp edged weapons by slitting their throats at village Kadwa, A Division Bench of State High Court Comprising Justice Mohammad Yaqoob Mir and Justice BS Walia after hearing Adv MA Bhat for the accused person whereas AAG Ravinder Gupta for the state set-aside the life-imprisonment with the observations that doubtful position about the identity of the assailants favours the appellants and giving benefit of doubt. According to Police case, on August 2, 2001 some unidentified assailants killed Arshad Begum and Amina Begum. On this information Police started investigation and found that the accused persons are hardcore militants belonging to Hizb-ul-Mujahideen (HM) outfit and were suspecting deceased Arshad Begum and Amina Begum of supplying information regarding their activities to the Police as the Police officials were frequently visiting their houses.Division Bench after hearing both the sides observed that It is quite unfortunate that two young ladies at the prime of their life have been murdered brutally. Conscience gets shocked. The criminals who have C0mmitted this dastardly act have remained to be punished.Division Bench further observed that Trial Court has been very sensitive regarding the gruesome murder committed but in the process appears to have been swayed by sentiments because while appreciating the evidence has missed to focus on the testimony of the two other related witnesses i.e. PW-Mohd Hanief, PW-Altaf Hussain brothers of the deceased Arshad Begum and also of PW-Mushtaq Ahmed brother of Mst. Amina Begum (deceased), has also missed to take notice of withholding of witness i.e. Mst. Mariyam Ahkter D/o Zahoor Ahmed.Division Bench further observed that Trial Court has also erred in not correctly appreciating the testimony of two defense witnesses i.e. Jameel Ahmed and Farzi Begum who were named by the Mst. Afroza Bano daughter of the deceased Arshad Begum to be present at the scene of occurrence. Though they were not produced by prosecution but were produced in defense by the accused. How could their testimony be rejected when they were named by Afroza and were respectively her uncle and aunt (her father"s brother and sister). The Trial Court while relying on the testimony of the Afroza bano and pw zahoor ahmed has ignored the other prosecution witnesses and the defence witnesses and it is trite that the standard of proof vis-a-vis defence has to be on the principle of preponderance of probabilities.DB further observed that the cardinal principle of criminal jurisprudence is that the accused are presumed to be innocent until proved guilty. It is also settled principle that guilt against the accused shall be proved beyond shadow of doubt. The testimony of the two witnesses Afroza Bano and Zahoor Ahmed is not free from doubt the identity of the assailants has remained a mystery. We are not persuaded to accept the testimony of Afroza Bano and Zahoor Ahmed in absence of corroboration that too in the backdrop of the fact and circumstances as quoted hereinabove so as to inspire confidence for recording conviction. In our view, the doubtful position about the identity of the assailants favours the appellants (accused). Therefore, appellants are entitled to benefit of doubt, so are, accordingly, acquitted. In the upshot the appeal is allowed, judgment dated 26.04.2011 and order dated 27.04.2011 impugned are set aside. Reference for confirmation of the imprisonment for life is rejected. The appellants (accused) be released forthwith, if not required in any other case.