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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.700 OF 2006

SHABIR AHMED TELI      … APPELLANT

VERSUS

STATE OF JAMMU & KASHMIR                 … RESPONDENT

J U D GM E N T

Aftab Alam,J.

1. This appeal by special leave is directed against the judgment and order dated  

October 16, 2003 passed by the Jammu & Kashmir High Court in Criminal Appeal  

No.4 of 2002 with criminal reference No.27 of 2002. By the impugned judgment,  

the High Court dismissed the appellant’s appeal and affirmed the judgment and

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order passed by the trial court by which the appellant was convicted under section  

302 of the Ranbir Penal Code and sentenced to undergo life imprisonment.

2. According to the prosecution case, on August 6, 1997, at about 8:30 P.M.  

one Gani Shah (the deceased) was returning to his house after offering the ‘Isha’  

(late  evening)  prayers  at  the  local  mosque  in  village Magray-pora  of  tehsil  

Anantnag.  The appellant  intercepted him in the lane,  at  a spot  just  outside the  

kitchen of the house of the deceased and taking aim at him fired several shots from  

the gun, which he was carrying. Gani Shah, hit by the gunshots fell down dead on  

the spot.  His  wife  and son and some neighbours who gathered at  the place of  

occurrence lifted him physically and took him inside the house.  It is further the  

case of the prosecution that the appellant wanted to marry the younger daughter of  

Gani  Shah,  namely,  Lovely.  But  the  proposal  for  marriage  sent  by  him  was  

rejected both by Gani Shah and Lovely and it was in retribution of the rejection of   

his marriage proposal that he killed Gani Shah.

3. Apparently, no one from the victim’s family went to the police to report the  

matter. On the following morning, i.e., on August 7, 1997, the village Chowkidar,  

Ghulam Rasool Shah learnt that Gani Shah had been killed. Then, he along with  

the village Numberdar, Mohd. Ahsan Dar went to the police station at Achabal and  

reported  the  matter  there  at  8:15 A.M.  In  the  report,  he  simply  stated  that  on

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August 6, 1997, at 8:30 P.M. one Gani Shah, son of Gh. Mohd. Shah, while he was  

coming to his house from the mosque after offering the ‘Isha namaz’, was attacked  

with gunfire by unknown gunmen outside his own kitchen and he died on the spot.  

He  also  made  it  clear  that  neither  he  nor  the  Numberdar had  witnessed  the  

occurrence; that they had only heard that one Gani Shah was killed by unidentified  

gunmen by gunshots fired from an automatic weapon, the previous evening after  

the  ‘Isha  Namaz’.   The  information  given  by  the  Chowkidar  was  reduced  to  

writing  by  the  SHO  and  was  registered  as  FIR  No.21/1997  of  Police  Station  

Achabal.  

4. The police after investigation submitted charge-sheet against the appellant  

following  which  the  case  was  committed  to  the  court  of  sessions  where  the  

appellant  was  charged  for  commission  of  offences  under  sections  302/341/201  

RPC read with sections 7/25 of the Arms Act. The appellant pleaded not guilty and  

the case was set for prosecution evidence. At that stage, the public prosecutor filed  

an application for further investigation of the case under section 170(8) of the Code  

of Criminal Procedure. The court allowed the prayer and on further investigation  

the  police  submitted  a  supplementary  report,  this  time  naming  three  others  

Mansoor Ahmad Wagey, Nasir Ahmad Hajam and Shabir Ahmad Hajam, also as  

accused. The newly added accused were charged for commission of offences under  

sections 302/341/201/109 RPC and 7/25 of the Arms Act.

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5. At the conclusion of the trial, however, the trial court acquitted the three  

other accused who were named in the supplementary charge-sheet but held and  

found the appellant guilty of committing murder of Gani Shah. It,  accordingly,  

convicted and sentenced the accused, as noted above, by judgment and order dated  

August 23, 2002/September 21, 2002. As the sentence awarded to the appellant  

was  life  imprisonment,  the  trial  court  made a  reference  to  the  High Court  for  

confirmation under section 374 of  the Code of  Criminal  Procedure,  which was  

registered as Reference No.27 of 2002. The appellant in turn preferred an appeal  

against the judgment and order passed by the trial court which was registered in the  

High Court as Criminal Appeal No.4 of 2002.  The High Court upheld the criminal  

reference and dismissed the appeal  filed by the appellant  by the judgment and  

order dated October 16, 2003.

6. The appellant has now come to this Court in appeal by special leave.  

7. There are certain features of this case that stand out and that need to be dealt  

with at the outset.  

(I).  According  to  the  prosecution,  the  occurrence  took  

place  on August  6,  1997 at  8:30 P.M.  Achabal  Police  

Station  is  at  a  distance  of  3  kilometers  from  village  

Magray-pora  where  the  occurrence  took  place.  

Nonetheless,  no  one  from the  victim’s  family  went  to

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report the matter to the police. It was only the following  

morning that the  Chowkidar and the  Numberdar of the  

village went to the police station and there they reported  

that Gani Shah was killed by “unknown gunmen”. They  

also made it clear that they were not the witnesses of the  

occurrence and they had only heard that Gani Shah was  

killed by “unidentified gunmen”.   

(II). On getting information about the occurrence,  the  

police came to the place of occurrence at Magrey-Pora at  

about 8:30 or 8:45 a.m. and went back after about half an  

hour, leaving behind the body of the deceased with the  

family members for burial.  

(III).  On that date (August 7, 1997) the police recorded  

the statements only of the informant Rasool Shah and Dr.  

Shabbir Ahmad, Medical Officer, PHC, Achabal, whom  

they had brought with them to examine the deceased. The  

informant Rasool Shah stated that he was a chowkidar of  

village Kanganhal and resided there. On August 6, 1997  

at  about  8:30  in  the  evening  he  heard  a  gunshot  but  

fearing terrorist fire he did not come out from his house.  

On the next morning he came to village Magrey-Pora and  

came  to  learn  that  Abdul  Gani  Shah,  while  he  was  

returning to his  house after  offering Isha prayer in the  

mosque,  was  killed  by an  unknown gunman.  He  once  

again  made  it  clear  that  he  was  not  a  witness  to  the  

occurrence nor did he have any information as to who

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killed Abdul Gani Shah, the previous night. Dr. Shabir  

Ahmad  in  his  statement  recorded  under  section  161  

Cr.P.C. said that on medical examination it was apparent  

that the death (of Gani Shah) was caused due to bullet  

shots and loss of blood; further, that the cause of death  

being apparent, there was no need for any post-mortem.  

(IV).  No  post-mortem  was  held  on  the  body  of  the  

deceased  Gani  Shah.   Dr.  Basheer  Ahmad  Paddar,  

Assistant Surgeon, Achabal, who was examined as one of  

the prosecution witness stated that on August 7, 1997 the  

police  had  taken  him  to  Magrey-pora  where  he  was  

shown the dead body of Gani Shah. On examination he  

found three gunshot injuries on the body of the deceased.  

He identified the death certificate dated August 7, 1997  

given  by  him  which  was  marked  as  Ex.PWM1.  He  

further said that no detailed post-mortem was conducted  

because the cause of death was apparent. He added that  

the cause of death was due to multiple gunshot wounds  

resulting  in  hemorrhage  and  shock  with  cardio-

respiratory arrest. He also said that he could not tell the  

time of death as it was not recorded in certificate given  

by him. He was also unable to state the distance from  

which the shots might have been fired.   

(V).    Zakir Hussain Shah and Abdul Rehman Shah who  

are  the  son  and  the  son-in-law  respectively  of  the  

deceased and who are among the six eye witnesses later

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examined before the trial court, were first examined by  

the police on August 9, 1997. Fatah, the widow of the  

deceased  and  Zubaida,  one  of  the  daughters  of  the  

deceased  who too are  eye-witnesses  of  the  occurrence  

were first examined by the police under Section 161 of  

the RPC and on August 13, 1997 and August 15, 1997  

respectively.  The remaining two eye-witnesses  namely,  

Mohd. Aslam Shah and Ali Mohd. Lone, who are not the  

family members of the deceased,  and who are also the  

eye witnesses of the occurrence were examined by the  

police on October 7, 1997.  The statements of all these  

witnesses were also recorded before a Magistrate under  

section 164 of the RPC on May 5, 2000.   

(VI). The appellant was arrested on May 15, 2000 that is  

to say after about three years of the occurrence.

(VII).  No gun was recovered from the appellant or from  

any other accused in the case and it was for that reason  

that the trial court acquitted the appellant of the charge  

under section 7/25 of the Arms Act.  

(VIII).  The  charge-sheet  was  finally  submitted  after  

almost three years of the occurrence.    

8. Applying the normal standards for judging the soundness and correctness of  

a  criminal  charge,  the  aforesaid  facts  and  circumstances  would  tend  to  

considerably  weaken  the  case  of  the  prosecution.  But  the  question  is  why the

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police investigation was so painfully slow, reluctant and shoddy? We have seen the  

village  Chowkidar saying that  he heard the gun shot at  8.30 in the evening of  

August 6, 1997 but he did not venture out of his house for fear of terrorist fire.  

Next morning when he went to report the matter to the police he seems to be at   

pains to make it clear that he had not witnessed the occurrence and as far as he was  

concerned the killer was some unknown gunman. On getting the report, the police  

come  to  the  village  but  do  not  stay  for  more  than  half  an  hour.  There  is  no  

investigation at the site of the killing. No statement is taken of any witness. No  

need  is  felt  to  have  the  post-mortem of  the  body of  the  deceased.  The empty  

cartridges fallen at the site of the killing that were collected by the witnesses are  

handed over to the police but those are either thrown away or put away somewhere  

as never again to see the light of the day.  No attempt is made to look for  the  

accused,  much less  to  arrest  him even though he lived in  village  Magray-pora  

itself. No attempt is made to search for or recover the weapon of crime which,  

according to the charge-sheet submitted by the police almost three years after the  

occurrence, was an AK-47 rifle.

9. In  order  to  understand  the  highly  unusual  way  in  which  the  police  

investigation took place, it is necessary to probe further and to see the personality  

of  the  appellant.  The  appellant  is  described  by  the  prosecution  witnesses  as  a  

member of “Ikhwan”. The “Ikhwan” is supposed to be a loose organization that

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was made of surrendered militants in Kashmir who worked or purported to work as  

informers for the security forces and were also used for liquidating the secessionist  

militants.  The members of the “Ikhwan1” were mostly unruly,  violent elements  

generally believed to enjoy the patronage and protection of  the security forces.  

Common people feared them and as it would appear from this case even the state  

police was wary of laying a hand on them.

Zakir Husain Shah (PW.2) stated:

“Accused  Shabbir  Ahmad Teli  had relationship  with Ikhwan  Tanjeem.”

He further said:

“I used to see the accused persons with army men, however, at  the time of occurrence, army men were not with him.”   

Abdul Rehman Shah (PW.3) stated before the court:

“Accused Shabbir Teli was concerned with Ikhwan and the said  Tanjeem gave rifle to him.”  

Zubaida Zakir Husain Shah (PW.4) stated before the court:

“Shabbir Ahmad Teli had gun and was working with Ikhwan.  Other  accused  persons  have  no  concern  with  Tanjeem.  However,  the  above-named  accused  persons  were  friend  of  Shabbir Ahmad.”  

1 The full name of the group was “Ikhwan-ul-Muslemin” which literally means the Brotherhood of Muslims.

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Mohammad Afzal Shah (PW.7) stated before the court:

“Accused Shabbir Tali was not wearing Maran but he was in  police uniform and was having rifle in his hands.”  

10. From the statements of the prosecution witnesses,  it is also clear that the  

family members of the deceased were full of fears of the appellant. The appellant  

was a neighbour of the deceased; he would come to the house of the deceased as he  

wished and give to his family members open threats of dire consequences for not  

giving Lovely to him in marriage. The family members of the deceased had the  

apprehension that  to give effect  to his threats he might do something dreadful.  

Lovely was sent away to live with some relatives in some other place for fear that  

she might be kidnapped by the appellant.  

11. Mohammad Afzal Shah who was examined as PW.7 stated before the court  

that he was a marriage broker and about three years ago he had fixed the marriage  

of Lovely, the daughter of the deceased in some family at Palipura. This greatly  

displease the appellant who came to his house carrying a rifle and asked him to  

break the marriage fixed by him and giving the threat that otherwise he would kill  

him. He also said that the appellant was connected with Ikhwan.  

12. In this background, we propose to test the truthfulness of the prosecution  

case on the intrinsic worth of the prosecution evidence leaving aside the failings of  

the police investigation.

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13. In support of its case, the prosecution examined six eye witnesses. Four of  

the eye-witnesses are the family members of the deceased, being his son (Zakir  

Husain Shah), widow (Fatah), daughter (Zubaida) and son-in-law (Abdul Rehman  

Shah). The other two, namely Mohammad Aslam Shah and Ali Mohammad Lone  

are residents of the same village, unrelated both to the deceased and the appellant.

14. From the deposition of PW.2 Zakir Husain Shah, it appears that after doing  

the ‘Isha Namaz’ on August 6, 1997, he returned to his house leaving behind his  

father in the mosque. As he came to the house, there was a gunshot outside in the  

lane. On hearing the shot, he and his mother Fatima came out of the house carrying  

a lantern.  He saw the appellant standing in the lane carrying an automatic rifle.  

The appellant threatened them and asked them to go back inside the house.  They  

came back to the house and watched from the open window.  He saw his father  

coming out of the mosque and Manzoor Ahmad (one of the three accused acquitted  

by the trial court) who was standing near the mosque signaling to the appellant that  

his  father  was  returning to  the  house.  As  his  father  came near  the  house,  the  

appellant, taking aim at him, fired several shots from his gun, as a result of which  

his father fell down at the spot and died. He also stated that on hearing the first  

gunshot (that was perhaps meant to announce the arrival of the appellant at the spot  

or to scare away any people from there), his sister Zubaida too had come out of the  

house and she and her husband Abdul Rehman Shah were also present at the spot

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when the appellant killed his father by firing at him from his gun. Zakir Husain  

Shah was subjected to long and searching cross-examination but there is nothing  

that  can  be  said  to  create  any  doubt  about  the  veracity  of  his  narrative.  His  

deposition is truthful, clear and definite.  

15. The other three family members, namely, Fatah, the wife of the deceased,  

Abdul Rehman Shah, son-in-law of the deceased and Zubaida, the daughter of the  

deceased also narrated the same facts.  Their  evidences are quite consistent  and  

fully corroborative of each other.  Zubaida also said that as her father fell down hit  

by the shots fired by the appellant, she rushed to him and took her head in her lap  

and he took his last breath in her arms.  

16. Apart from the four family members, the prosecution case is also supported  

by Mohammad Aslam Shah and Ali Mohammad Lone.  

17. Mohammad Aslam Shah testified that  he saw the appellant  with the gun  

standing near the kitchen of the house of the deceased. As the deceased arrived  

there, on his way back from the mosque, the appellant fired four shots from his gun  

hitting the deceased in his chest and killing him on the spot. Mohammad Aslam  

Shah also stated that the occurrence was witnessed, besides him, by Zakir Husain,  

Zubaida,  Fatah  and  Rehman  Shah  and  some  other  witnesses  including  Ali  

Mohammad Lone.

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18. Ali Mohammad Lone who was a neighbour of the deceased and the accused  

unequivocally stated that he saw the appellant carrying a gun and as the deceased  

arrived at the spot, he took aim at him and opened fire.  Gani Shah, hit by the  

shots, fell down.  He also stated that the motive behind the killing was the refusal  

by the deceased to give his daughter Lovely in marriage to the appellant.  

19. We have carefully examined the testimonies of the eye-witnesses and we  

find that those are intrinsically sound and reliable. There is no reason for this Court  

not to accept the evidences of those ocular witnesses.  The evidences of each of the  

six  witnesses  are  sound internally  and corroborate  the testimonies  of  the  other  

witnesses.  

20. On a careful  consideration of  all  the materials  on record and on hearing  

counsel for the parties, we are of the view that both the trial court and the High  

Court rightly held the appellant guilty of the charge of murder. We see no merit in  

the appeal.  It is, accordingly, dismissed.

21. The bail bonds of the appellant are cancelled. The appellant is directed to  

surrender within one month from today failing which the trial court should take  

coercive steps  for  taking him in custody to make him serve out  the remaining  

period of his sentence.

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……….…………………..J. (Aftab Alam)  

………………….. …………………..J.

(R.M. Lodha)  New Delhi,  April 11, 2013.