Mere presence of accused at crime scene cannot be ground to implicate him: Jammu and Kashmir High Court [Read Judgement]

Mere presence of accused at the scene of crime cannot be a ground to implicate him for the crime, the Jammu & Kashmir High Court recently observed as it upheld an order of acquittal against a person accused of murder of the father and other relatives of an Army Personnel (State v. Abdul Qayoom)..A Bench of Justices Sanjeev Kumar and Puneet Gupta held that the appellant-State utterly failed to make out a case for setting aside the order of acquittal of the respondent. ."Except for stating presence of accused on spot, there is no murmur in the statement of the witness about the accused carrying the killings himself or helping the others in the diabolical act. Mere presence of accused, in any case, cannot implicate him in the case," the judgment said. .The Court was hearing an appeal filed by the appellant against the judgment passed by the court of Principal Sessions Judge, Rajouri by which the respondent was acquitted of the charges framed against him under Sections 302, 120-B, 121, 123, 449 Ranbir Penal Code (RPC) read with sections 4/27 and 7/25 Arms Act..The accused had been charged with killing of four ladies and two children at the house of the father of an army personnel.."No doubt, the occurrence is horrendous and heart-wrenching in which the lives of innocent including children of tender age were taken awayyet the same cannot be the reason to hold the person guilty unless the prosecution proves its case against the accused beyond shadow of doubt," the Court observed. .The case against accused, Abdul Qayoom, was that he had links with the militants and also worked as their guide. Two militants, namely, Saif Ullah and Wazir Khan, from Pakistan are stated to have visited the house of Qayoom on the intervening night of 4-5th May, 2003 and he took those two persons to the house of Wazir Hussain and stayed there under threat from the two militants. The next day when Wazir Hussain came to know about Abdul Qayoom having brought those militants in his house he threatened Qayoom that he will inform the police and Army and get him arrested.On the intervening night of 18/19th May, 2003 the accused along with three unknown militants came to the house of Wazir Hussain but as the house was locked they went to the house of Mehboob Bakerwal, father of Wazir Hussain, and killed four ladies and two children by slitting their throats. The militants belonging to Jaish-e-Mohammad could not be identified and the challan came to be filed against the respondent, Abdul Qayoom.FIR was registered against Qayoom on May 19, 2003 .The case was tried by the court of Principal Sessions Judge, Rajouri which by a judgment dated February 9, 2007 acquitted Qayoom. .The appeal was filed on the grounds that the trial court failed to appreciate the prosecution evidence, and though the prosecution witnesses fully supported and corroborated the case of the prosecution, and successfully proved the allegations against Qayoom, he was acquitted. .The High Court proceeded to dissect the testimonies of witnesses produced by the prosecution. Out of that only one was an eye-witness. That witness was one Lal Begum who had deposed of having seen the face of Qayoom alone and not the other accused. She stated that due to old age, her eye-sight had become weak and specifically stated that she had not seen the faces of other accused. .Taking the above into account, the Court ruled that the benefit of doubt about the presence of accused at the spot of crime should be in favour of the accused. .Moreover, even if the statement of that witness is taken into consideration of the accused having been present at the spot, no overt act was attributed to the accused during the course of occurrence of the killings. Except for his presence at the spot, none of the witnesses spoke about him participating in the killings or helping those who indulged in the diabolical act, the Court noted. .Such presence alone cannot be a ground to hold him guilty, the Court said. "There can be every possibility that the accused was forced to accompany the other three persons to the house where killings took place," it added. .The Court, therefore, dismissed the appeal. .[Read Judgment]