‘Investigation agency produced no concrete evidence of Banday’s involvement’
SRINAGAR: The Jammu and Kashmir High Court on Thursday acquitted a Special Operations Group (SOG) sleuth, Bilal Ahmed Banday, of murder charges, overturning the verdict of the trial court that it deemed went “against law”.
The court held that the investigation agency did not produce any concrete evidence of Banday’s involvement in the killing of Mohammad Altaf Lone, son of Abdul Aziz Lone, and the injuring of Abdul Yasin Bhat, son of Ali Mohammad Bhat, both residents of Tikkipora Khurhama. The incident dates back to 1 May 2006 when “unknown persons” fired gunshots at Khurhama market.
The court observed that the investigation was flawed and no evidence was produced to show that the accused had killed the two persons. Also the trial court while examining the witnesses had not applied its mind and had thereby convicted Bilal Ahmed Banday for murder charges “against law”, the High Court held.
The case diary says that Lone died on the spot in the firing incident, while Bhat sustained injuries. The two used to work in 8 Sector of Rashtriya Rifles as sources and both were armed at the time of the incident. The information was forwarded by the Police Post Khurhama to SHO Police Station in Lalpora, where a case for offences punishable under section 7/27 Arms Act, and section 302 RPC, was registered vide FIR No.23 of 2006.
During the investigation, it surfaced that Bilal Ahmad Banday, resident of Warnoo, Lolab, was working with SOG Group Warnoo and had strained relations with the victims, the case dairy said. The accused had asked the victims to work for SOG Warnoo which they didn’t agree to, resulting in a fight in which the accused warned the two “to be prepared to face the consequences”. The case diary says that the accused “ultimately fired upon them”.
On the completion of the investigation of the case, a charge sheet for the commission of offences punishable under section 302/326 RPC was brought against the accused before Judicial Magistrate Sogam. The Judicial Magistrate committed the case to the Court of Sessions Judge Kupwara in terms of Section 205 Cr P C. The accused was charged for the commission of offences punishable under section 302, 326 RPC vide Trial Court order dated 06.09.2006 and was convicted for murder charges in 2011 after 22 witnesses were examined.
The accused assailed the judgment of conviction and sentence in an appeal filed before the High Court on the grounds, inter alia, that the judgment under appeal is against facts, law and canons of justice.
Hearing the arguments, the division headed by Chief Justice Badar Durrez Ahmed and Justice M K Hanjura observed that from the investigation point of view there is not single evidence pointing to the accused having killed the deceased, and the eyewitness produced by the prosecution had given contradictory statements with regard to identification of the accused.
“And also the FSL report has not given whether the bullets which killed deceased and injured other persons were fired from Banday’s gun,” the high court said. “So, on these grounds, it is imperative that there is no evidence on which the accused can be convicted. So, we direct that Bilal Ahmed Banday to be released forthwith.”
The court cited that in the case of State of Orissa vs Brahmananda, reported in AIR 1976 SC 2488, which applies in all force to the instant case, it has been held as under: “Where in a murder case the entire prosecuting case depended on the evidence of a person claiming to be eyewitness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, (the bench) held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness.”