HC upholds life sentence of ex-militant in murder case

Srinagar, March 11: The High Court of Jammu & Kashmir and Ladakh upheld the conviction and life imprisonment awarded to an ex-militant in 2005 murder case in Handwara.
A division bench of Justices Rajnesh Oswal and Mohan Lal upheld the judgment of conviction and order of sentence passed by the trial court in December 2021 against Mushtaq Ahmad Malla for commission of offence punishable under Section 302 (murder), 201 (disappearance of evidence of offence) RPC and Section 7/27 of Arms Act.
In 2005, Malla along with another accused, Farooq Ahmad Chopan, who was later killed in an encounter, had allegedly shot dead Tariq Ahmad Malik, while he was with his in-laws watching a cricket match at the fields nearby.
However, the counsel representing the appellant contended that the accused was a laborer and was helping his father and brother in building a cowshed.
The counsel argued that the statements of two witnesses were recorded by the Investigating Officer after many years of the incident and the delay has not been explained by the prosecution, “which clearly shows that they were planted witnesses.”
It was also alleged that the Army had killed the deceased.
The Additional Sessions Judge Handwara in December 2021 held the appellant (Malla) guilty for the commission of offence punishable under Section 302, 201 RPC and 7/27 Arms Act.
The trial court sentenced the appellant to imprisonment for life and a fine of Rs.50,000 for the commission of offence punishable under Section 302 RPC, with further sentence of imprisonment for a term of seven years and a fine of Rs.10,000 for the commission of offence punishable under Section 201 RPC.
In default of payment of fine in each case, the appellant was ordered to undergo sentence for one year.
In a 47-page judgment, the bench noted that they do not find that the sentence of life imprisonment awarded to the appellant is disproportionate to the offence committed by him, particularly when Section 302 RPC provides punishment of either death penalty or imprisonment for life.
“We also find that the learned trial court has rightly convicted the appellant for the commission of offence under Section 201 RPC particularly when there was direct evidence regarding killing of the deceased by the appellant by gun and subsequently running away of the appellant from the place of occurrence with gun,” it recorded.
The court underscored that the trial court though has convicted the appellant for the commission of offence punishable under Section 7/27 of Arms Act but has rightly not sentenced him for the punishment prescribed under Sub Section 3 of Section 27 of Arms Act because the Apex Court has declared the Sub section 3 of Section 27 of Arms Act as unconstitutional in a case titled State of Punjab Vs. Dalbir Singh as the said Section provides for the punishment of death penalty only.
It pointed out that in the instant case, the witnesses have themselves furnished the reasons for not making the statement against the appellant till his arrest, that he was a militant.
The court observed that in the militancy related cases, the witnesses rarely come forward to assist the Investigating Agencies because of threat to their life.
“The delay in recording the statements of the witnesses during the investigation would have been fatal, had there been no explanation for the delay and the witnesses being suddenly associated with the investigation without there being any reason for their presence on the spot,” the court said.
Upholding a trial court judgment, the bench said that prosecution has successfully proved that the accused is a “dreaded militant” and the witnesses had every reason to apprehend threat to their lives at the hands of the appellant.
“Simultaneously, the fact that the appellant was named in the FIR, cannot be ignored as well,” the court said.
Dismissing the appeal, the court said, “In view of the above, we do not find any illegality or infirmity in the judgment of conviction and order of sentence dated 31.12.2021 passed by the learned trial court in CNR No. JKKW040000022012 titled State Vs. Mushtaq Ahmad Malla & Anr., in FIR No.337 of 2005 of P/S Handwara for commission of offence punishable under Section 302, 201 RPC and Section 7/27 of Arms Act, as such, the same are upheld.”