Jammu & Kashmir High Court - Srinagar Bench
Kamal Jeet Singh @ Rinku vs Ut Through Ps Beerwah on 20 December, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH, AT SRINAGAR
CrlA (D) No. 43/2022
c/w
CRRef No. 13/2016
Kamal Jeet Singh @ Rinku ... Appellant
Through M.A. Wani, Ld. Adv. With Mr. Z.A.Wani. Adv, Mr.
Saleem Gul. Adv. And Mr. Rahil Habib, Adv.
Versus
UT through PS Beerwah ... Respondent
Through Mr. Alla-Ud-Din Ganai, Ld. AAG
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
HON'BLE MR. JUSTICE JAVED IQBAL WANI
ORDER
This appeal has been filed against the judgement of conviction dated 10/12/2016, passed by the Court of the Ld. Principal Sessions Judge, Budgam in file No. 139/session by which the Ld. Trial Court held the appellant guilty of an offence u/s. 366. 342, 376 and s.302 of the Ranbir Penal Code (hereinafter referred to as "RPC) and vide order of sentence dated 15/12/2016, was sentenced to suffer rigorous imprisonment for life and was also liable to fine of Rs. 30,000/- (rupees thirty thousand) and Rs. 45,000/- (rupees forty five thousand) for the offences punishable u/ss. 376 and 302 of the RPC. Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 2
2. The evidence has been appreciated on the basis of the translation given in the Trial Court order as the original evidence before the Trial Court has been recorded in Urdu by hand, a language that the author of this judgement (Atul Sreedharan J.) is not conversant with. The accuracy of the translation given by the Ld. Trial Court has not been disputed by the counsel for the appellant or UT.
3. The brief facts of the case are as follows. The appellant is a resident of Attina Beerwah in district Budgam and works as a bus conductor in Jammu. The case of the prosecution is that on 04/10/2002, the complainant Jodh Singh (PW1), a resident of Atina Beerwah, Budgam, lodged a written missing report at PS Beerwah stating that on 03/10/2002, his two minor granddaughters whose names are not being mentioned herein but are referred as D1 aged about six years and D2 aged about three years, returned home from their school at 4 PM and thereafter, the children, wearing their school uniform went towards the local Gurudwara but did not return thereafter.
4. A search was conducted by the SHO of the PS who is also the IO of this case. He was accompanied by witnesses at serial number 19 to 24 of the challan, and they reached village Attina where the members of the Sikh and the Muslim community joined the search operations which led Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 3 to the discovery of the bodies of the two children recovered from the house of a migrant Sikh named Jagdesh Singh. The police took custody of the bodies which were identified by PW1. The search of the scene of crime led to the recovery of a steel glass having a small quantity of liquid that appeared to be mustard oil. In the bottom portion of the steel glass was inscribed in English the words "P.unit"
and "NPS". also recovered from the scene of crime were two small trousers, one underwear, one blanket and one sheet having some stains. The police were of the opinion that deceased were enticed, kidnapped and taken to the house in question, kept under confinement and then murdered. The SHO sent a docket to the PS for the registration of the FIR.
5. The Executive Magistrate Beerwah was also requested to join the investigation looking into the sensitive nature of the case. The bodies were taken into custody by the police and photographs of the scene of crime was taken. The postmortem report revealed that both the girls had been subjected to rape and that the oil that was found in the glass, was also used in the commission of the crime. On the basis of the postmortem report, the offence u/s. 376 RPC was also added. A search was made for other steel glasses which bore resemblance to the steel glass seized from the scene of crime (hereinafter referred to as the Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 4 "SOC"). One steel glass was recovered from the house of Aya Singh, the father of the appellant on which was inscribed in English the words "N.P.S" and "P.unit" which was identical to the inscription on the steel glass seized from the SOC.
6. Upon interrogation of Narinder Paul Singh and the appellant Kamal Jeet Singh, the two sons of Aya Singh, the appellant is stated to have confessed to the police of having committed the crime. He is stated to have told the police that on the date of occurrence, at about 4.30 PM he found the girls still in their school uniform, searching for their mother. He enticed the girls and took them to the single storeyed house of a migrant named Jagdesh Singh who is the uncle of the appellant in relation and there he committed rape on both the girls and thereafter murdered them by throttling. He brought mustard oil from his house in the absence of his family members in the steel glass. After committing the offence, he jumped from the attic of the house in the course of which he suffered injury on his right knee.
7. Inspection of the attic from where the appellant had jumped off revealed a cluster of human hair in the wooden beam of the tin roof which was seized. A sample of the appellant's hair was also taken and sent to the FSL for Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 5 analysis and matching. The FSL returned a finding of similarity between the hair found at the SOC and the sample hair of the appellant.
8. The alleged confession by the appellant to the police also disclosed the tendering of an extra judicial confession by the appellant to two maternal uncles named Tirath Singh and Prahlad Singh and also to Mrs. Kulwant Singh, the mother of the appellant. It is also the case of the prosecution that the appellant made the confession before the print and electronic media without any pressure. On the basis of the confession by the appellant while in police custody, an offence u/s. 176 RPC was also registered against the mother and the two maternal uncles of the appellant for not disclosing the offence committed by the appellant despite the appellant having confessed to them. Post investigation, the chargesheet was filed against the appellant, his two maternal uncles and his mother.
9. Before this Court appreciates the evidence adduced, it wishes to record that the case against the appellant is based on circumstantial evidence. There is no witness who has last seen the victims with the appellant shortly before the went missing. There is one witness who has seen the appellant drying his hair sitting in the veranda of the SOC. There are witnesses who saw the appellant alone on the Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 6 relevant date but not in the company of the victims. The appellant is related to the owner of the house which is the SOC as has been stated by several witnesses. Some of the witnesses are also related to the owner of the house. One witness who is also related to the owner of the house stated in cross examination that he had access to the house in question. Besides these witnesses, there is the scientific evidence to reckon with which is the PMR and the FSL reports.
10. PW1 is Jodh Singh. He is the grandfather of the victims.
He knows the appellant. In his examination in-chief, the witness says that the father of the victims is Narinder Paul Singh who was alive. He says that the victims were students of Gangi Memorial Public School and that on 03/10/2002, the girls returned from school and enquired about their mother. He says that he met the girls near the house of one Prahlad Singh, when he was going towards the Gurudwara. He asked the girls to go home. He also states that he saw the appellant sitting at the shop of the appellant's muslim tenant and then he went to the Gurudwara. He further says that he reached home at 4.30 PM and found that the girls had not reached home. He searched till late into the night but could not find them and early morning the next day, he filed a missing report at PS Beerwah which is ExPW1/1. He says he even got the Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 7 announcement made in the Friday prayer congregation also. He says that the police recovered the bodies from the house of the uncle of the appellant named Jagdesh Singh, who was a migrant. He was a witness at the SOC and gives details of the seizure of artefacts related to the crime such as the trousers of the deceased, the steel glass containing the oil. He has signed the identification memo of the victims which is ExPW1/2. He has also signed the memo relating to the possession of the bodies being taken by the police which is ExPW1/3. He has also signed and proved ExPW1/4 which is the seizure memo of the steel glass containing the mustard oil. IN CROSS EXAMINATION, the witness says that he has three sons and three daughters. Narinder Paul Singh is his son (father of the victims as stated by this witness in his examination in chief) and is a 9th pass and before the incident, he was running a canteen in the State Bank. He further says that he takes tea in steel glasses purchased from the market. He says that "the glass bears the words "NPS" written on the same. That the name Narinder Paul Singh can also be read from the said words" (the portion within inverted commas is extracted ad verbis from the judgement of the Ld. Trial Court). As regards the school of the victims, the witness says that it is at a distance of fifty yards from his home. The witness says that he was in the school when Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 8 the deceased girls reached home and that he met the girls when he was on his way to the Gurudwara. He says that the people of his locality take tea in steel glasses of the kind that was seized by the police. He says that when the bodies were recovered, Deedar Singh and Narinder Paul Singh were also present.
11. PW2 is Gurdeep Singh. He is a Special Police Officer. He says that he knows the complainant and the appellant. Narrating the events of 03/10/2002, he says that he was having lunch at his home at about 4 PM when the victims came to his house and enquired from him about their mother to which he replied that he has not seen her. From his home, the witness says he went to the Gurudwara. Between 4 and 5, he heard a hue and cry that the girls were missing. He says that he participated late into the night in search for the missing girls and the next day morning also he searched for the girls whose bodies were found by the police in the house of Jagdesh Singh who happens to be the uncle of the appellant. He says that the bodies were in a denuded state inside a closed room and an oil can and a steel glass containing edible oil and some clothes lying in the scene were also seized. IN CROSS EXAMINATION, the witness says that the deceased were related to him being the daughters of his cousin. He further states that he was posted at police lines Budgam Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 9 on the date of occurrence and that his duty hours were from 9 AM to 4 PM daily and that on 03/10/2002, he reached home between 4 and 4.30 PM.
12. PW3 is Joginder Singh. In his examination in chief, the witness deposed that he knows the accused and also Narinder Paul Singh, the father of the victims. He has not stated anything significantly different from PW 1 and 2, he says that he was in Srinagar when he got the news about the missing girls and returned to his village on 04/10/2002 and joined the search for the missing girls. He also is a witness to the various memos of seizure made by the police regarding the seizure of the bodies, steel glass with oil, the oil can, the clothes and also the hair. He also says that the police arrested the appellant from his own house on 06/10/2002. He also says that the accused made the disclosure to the police in his presence. IN CROSS EXAMINATION, he has stated that the complainant and the accused are both related to him. He says that the house of Jagdesh Singh had three rooms. He also stated that he used to go inside the said house even before the incident as Jagdesh Singh was his relative.
13. PW4 is Narindra Paul Singh. He is the father of the deceased children. He knows the accused. On 03/10/2002, he had gone for harvesting paddy and Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 10 returned home by 4.30 PM. He was informed by his wife that the girls were not home. He says he started searching for them alone and then the people of the village also joined in the search. The rest of his examination in chief has remained the same as that of the other witnesses hereinabove relating to the discovery of the body, the artefacts seized from the SOC, being a witness to the various seizure memos etc., IN CROSS EXAMINATION, he says that there was no previous dispute between him and the appellant and that the appellant lived at a distance of two hundred yards from his home. He also says that only one glass was seized from the house of Narinder Paul Singh, the elder brother of the appellant.
14. PW5 is Kartar Kaur. She is the grandmother of the victims and the mother of PW4. She corroborates in her examination in chief that PW4 had gone to harvest the crop of his uncle. She further states that her husband PW1 had gone to Mata Gangi Memorial Public School to teach. The victims had returned home from school at 4 PM and she told them that their mother had gone to graze the cows. She further says that the victims had gone to meet their grandfather who was going to the Gurudwara. The grandfather told the victims to go back home (this is a hear say as PW1 never says that PW5 was accompanying the victims when he met them near the house of Prahlad Singh Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 11 and neither does this PW5 say that she accompanied the victims when they went to meet PW1). The rest of her statement is similar to that of the other witnesses already referred to hereinabove. However, one aspect of her examination in chief is striking as, upon seeing the bodies of the victims at the house of Jagdesh Singh she says that they were subjected to sexual intercourse. One other witness PW 22 Const. Mohammad Shafi also states that the victims appeared to have been raped and then murdered by someone. Her cross examination is insignificant.
15. PW6 Inderjeet Kour. In her examination in chief she says she knows the accused as he lives in her village. She is the mother of the victims. She says that she was not at home when the victims came back from school but her mother in law was. She says that the victims came back from school and kept their books in the veranda and they asked their grandmother about the whereabouts of this witness. She further says that she was not at home when the victims returned as she was at the farm. She further says that the grandmother told the victims that their mother had gone to "uncle's house". She further says that the accused had a shop that was nearby, and the accused had given the victims some biscuits and toffees and told them that he would take them to their mother. She further says Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 12 that there was no animosity between her and the appellant, that he was of sound mental disposition and that he committed rape on the girls. IN CROSS EXAMINATION, this witness has stated what the others have. As regards her statement in chief that the appellant enticed the victims with biscuits and toffees, she says that she has said this on the basis of the confession of the appellant before the police and she has not herself seen the appellant giving biscuits and toffees to the victims.
16. PW7 is Kripal Kour. She has turned hostile. Her examination in chief corroborates the statement of PW1 only to the limited extent of her having seen the victims with PW1 who told the victims to go back home. Rest of her statement is of no relevance.
17. PW8 is Satbir Kaur. She is the cousin of the appellant. She states that four to five years before her deposition was recorded in Court, she had seen the appellant crossing her and her sister when they were returning home after washing clothes in the local spring and two days thereafter, the victims went missing and their body was recovered on the next day. This would put the date of the chance meeting of the witness and the appellant on 01/10/2002. She does not state that there was any Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 13 conversation between her and the appellant when they crossed each other.
18. PW9 is Amarjeet Kaur. She has turned completely hostile and therefore there is no need to refer to her deposition. PW 10 is Santosh Kaur. She is also a resident of the same village as the appellant, and she knows the appellant and the victims. The only relevant part of her deposition is that when she went in search of her calf, she saw the appellant drying his hair in the veranda of the SOC at 2 PM.
19. PW11 is Ishpaul Singh. He says that he knows the accused and the deceased and that in the course of investigation, four glasses were seized from his home. He has proved the seizure memo. It is also necessary to mention here that the during investigation, four steel glasses were seized from his house, however, it is the undisputed case that none of these glasses had N.P.S or P.Unit etched on them. This witness has not testified anything relevant to support a material fact or the fact in issue.
20. PW12 is Aijaz Ahmad Khan. He is the son of Bashir Ahmad Khan who was running a shop in the house owned by the appellant. On the day on which the victims went missing, the witness was managing the shop of his father, and the appellant had brought sweets worth Rs. 2 from him at around 4.30 PM. Besides this, the statement bears no Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 14 relevant to a material fact or a fact in issue. It is relevant to mention here that Bashir Ahmad Khan was never examined as a witness.
21. PW13 is Mohammad Yousuf Dar. He was posted as Incharge FSL unit at Budgam. He was a part of the SOC investigating team. He says he was shown the hairs and steel glass at the SOC. He also says that the appellant also accompanied them to the SOC.
22. PW23 is Fareed Ahmad. This witness is a constable with the police force and a member of the investigating team. He, like the other witnesses has deposed about the process of investigation. However, he has also stated that the appellant had informed the police that it was his elder brother Narendra Paul Singh who had committed the rape and murder as he is in the habit of misbehaving with children. This witness says that Narendra Paul Singh was arrested but later absolved by the police itself as he was found to be impotent. He further says that the appellant himself accepted the guilt by confessing that he had raped and murdered the girls. IN CROSS EXAMINATION, this witness says that the accused had been arrested on suspicion prior to bodies of the girls being discovered as the appellant was in a state of intoxication. He does not know when the brother of the appellant was arrested. On Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 15 being asked by the defence as to how the police arrived at the conclusion that Narendra Paul Singh, the brother of the appellant was impotent, the witness states that Narendra Paul Singh himself stated that he is impotent.
23. PW25 is Dr. Sarvar Hussain. This witness examined the accused when he was produced by the police. He was brought before the witness for the treatment of some ailment. In cross examination, the witness says that he did not find any injury on the body of the accused.
24. PW26 is Dr. Fayaz Ahmad Banday. During the relevant period, he was posted as Assistant Surgeon S.D.H Beerwah. He performed the postmortem of the victims. On D1, he found bruises on either sides of the neck as well as on the anterior aspect of the neck. He also records in his report that there were bruise marks on the back and labia majora and minora and noticed a big haematoma inside the vaginal cavity. He noticed bruises on the vaginal wall and an oily substance around the genitalia of the victim that smelt like mustard oil. He records that the hymen was completely ruptured. He opines that the mustard oil was used as a lubricant to facilitate penetration. He records that the hyoid bone was fractured with the presence of extravasation of blood in the subcutaneous tissue around the bruise marks reflecting the force that was used and Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 16 that the cause of death was asphyxia due to throttling, leading to cardiac arrest. As regards D2, she too had been subjected to the same violence and indignity as her elder sister and had similar injuries with the same cause of death as her elder sister.
25. PW28 is Hakim Abdul Rashid. He is an FSL expert. In his examination in chief he deposed that he received a packet that was marked as Q-1 and an envelope marked as S-1 for detection and comparison of finger prints. Q-1 contained a steel tumbler (seized from the SOC) and S-1 contained sample finger prints of the accused. On examination of the steel tumbler, he did not find any fingerprints on it.
26. PW29 IS Shahul Ahmad Kanth. On the date he took the stand, he was the Scientific Assistant, Serology at FSL Srinagar. On 12/10/2002, he received four sealed envelopes from Dy.S.P Headquarters, Budgam. One envelope being Q-V contained strands of hair which was collectively marked as K-359. The other envelope marked as S-VI contained a few strands of hair allegedly taken from the suspect and collectively marked as K-360. After conducting the tests, the witness opined in the report "That hair samples marked as K-359 and K-360 were Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 17 found similar and could be of the same person." (emphasis added).
27. PW30 is Nazir Ahmad. He is the investigating officer of this case. He states that on 04/10/2002, ten to fifteen people from the Sikh community approached him to file a missing report of two minor girls who went missing on 03/10/2002. Upon searching for them, they found the dead bodies of the girls in an abandoned migrant home. He gives the investigative process in great detail and says that the search of the house of the appellant led to the recovery of a steel glass. He further says that the glass that was seized from the house of the appellant and that seized from the SOC, both bore "N.P.S" and "P.unit" etched on them. The appellant was arrested on suspicion and when subjected to interrogation, he disclosed having committed the crime. He says that the appellant disclosed that on the date of the incident, he was going to the local spring to wash his clothes with his brother when he met two of his cousin sisters. He told one of them to meet him at the SOC but she never turned up, then about 4.30 PM he saw the girls coming his way and he thought why not have sex with them instead and then took both the girls inside the house of Jagdesh Singh, gave them a few sweets and biscuits that he has purchased from some shopkeeper and then left the place, went to his house from where he got some mustard Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 18 oil and then raped them and when they began to cry, he murdered both of them by throttling. He left the dead bodies at the SOC, and went home. He further states that the accused also informed him that he had confessed his crime to his mother and his uncles. The accused also disclosed that after commission of the offence, he jumped from the attic and received bruises in his leg. This is the disclosure statement of the appellant according to this witness. IN CROSS EXAMINATION, this witness said that the door of the SOC was locked which had to be forced open. Rest of his testimony relates to the investigative process as in seizure memorandums, dispatch to the FSL etc.,
28. FOR THE APPELLANT: The Ld. Amicus has argued that the entire case of the prosecution is based upon circumstantial evidence. According to the Ld. Amicus, the Ld. Trial Court failed to appreciate that the so called material on record did not constitute an unbroken and contiguous chain instead, the prosecution has laid fragmented pieces of facts before the Ld. Trial Court which did not even constitute legal evidence. He said that no material fact has been proved against the appellant and that he has been held guilty on the basis of surmises and conjectures.
Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 19
29. Ld. Counsel for the appellant has also submitted that the appellant has been convicted only on the basis of the recovery of a steel glass with "N.P.S" and "P.unit" inscribed on it from the SOC which contained some mustard oil which was allegedly used in the commission of the crime. The ownership of the glass was never proved. The Ld. Counsel has referred to the deposition of PW23 who in cross examination has stated that the appellant/accused was arrested on the basis of suspicion as he was drunk, and this arrest was made before the discovery of the bodies of the girls. He further says that PW23 is a police witness, and he has not been declared hostile and therefore, the statement of this witness that the appellant was arrested even before the discovery of the bodies, is binding against the prosecution and in favour of the accused. He says that from the evidence of the prosecution witness itself, it is clear as day that the appellant has been falsely implicated in a botched up investigation and has completed more than twenty two years of the sentence.
30. FOR THE RESPONDENT: Ld. Counsel for the State has argued that the impugned order is well considered and elaborate and has considered every aspect of the case and only thereafter has held the appellant guilty as charged. He has submitted that even though the evidence against the appellant is purely circumstantial without any Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 20 eyewitnesses or a witness to "last seen", the chain of circumstances is complete without any missing links and that the prosecution has been successful in proving the case against the appellant beyond reasonable doubt.
31. The Ld. Counsel for the UT has drawn the attention of this Court to the scientific evidence on record which, according to the Ld. Counsel, establishes the involvement of the appellant in the crime. According to him, the evidence brought on record establishes beyond reasonable doubt that it is only the appellant who has committed the crime and there is no material to raise a doubt in favour of any hypothesis relating to the innocence of the appellant. In this regard, the Ld. Counsel has argued that the recovery of the glass with some mustard oil still in it, the PMR which establishes the presence of mustard oil on the vagina of the victims, the seizure of human hair from the attic from where the appellant has said to have jumped out and escaped, the report and testimony of the FSL expert that the hair seized from the SOC and the sample taken from the appellant could be from the same person, the recovery of an identical steel glass from the house of the appellant, the appellant being seen by a witness in the veranda of the SOC at 2.30 PM, drying his hair on the date of the incident, the injury suffered by the appellant when jumping from the attic to make good his escape and finally, his Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 21 memorandum u/s. 27 of the Evidence Act which led to certain recoveries from the house of the appellant which raises the inescapable inference of the appellant as the only person who could have committed the offence to the exclusion of any other person.
32. Heard the Ld. Counsels for the parties and perused the records of the case. The PMR report of the victims reflects the commission of a brutal crime which shakes the human conscience. The manner in which the crime was committed and the pain and agony that was endured by the hapless victims sends a shiver down the spine of the strongest amongst men. This was an act done by an animal masquerading as a human. The victims were only six and three years of age. However, shocking as the crime may be, it is for this Court to examine if the conviction arrived at by the Ld. Trial Court was based upon a just and proper appreciation of the evidence against the appellant.
33. The evidence against the appellant is twofold. (a) Witness Testimony and (b) Scientific Evidence.
34. WITNESS TESTIMONY: PW1, the grandfather of the girls says that the girls reached home from school in the evening of 03/10/2002 and enquired about their mother when he was leaving for the Gurudwara. He does not state Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 22 that his wife PW5 was at home at that time. Then he says that on his way to the Gurudwara, he met the girls near the house of one Prahlad Singh, and he asked them to return home. He later returns home at 4.30PM and found that the girls had not reached home. In cross examination this witness contradicts himself and says that when the girls reached home in the evening, he was at the school and not at home and that he had met them on his way to the Gurudwara. PW5 who is the grandmother of the girls and the wife of PW1 on the other hand says that PW1 had gone to the Mata Gangi Memorial Public School to teach and that the children returned home from school at 4 PM and she told the girls that their mother had gone to graze the cow and that the girls had left to meet their grandfather (PW1) who was on his way to the Gurudwara and that the grandfather told them to return home. PW6 is the mother of the girls who was not at home when they came back from school and is not privy to any of the events from the time the girls came home from school and went missing. She only narrates what she has heard from PW5 who is her mother in law. The Statement of PW4 Narinder Paul Singh, the father of the girls, is also not very relevant as he was not at home when the girls returned home from school and then went missing. His status as a witness to the events relating to the girls after they reached home and Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 23 went missing is no different from that of his wife PW6 and their knowledge is based on hearsay information that they may have received from PW1 and PW5. PW2 Gurdeep Singh who is an SPO says that he was having lunch at 4PM when the victims came to his house and enquired about their mother to which he said that he hasn't seen her. This part of his narrative does not seem probable as PW5 the grandmother says that she had told the girls that their mother had gone to graze the cows and the mother of the girls PW6 says that the place for grazing was between twenty and fifty yards from their house. Thus it is most unlikely that the girls would have gone to the house of the PW2 searching for their mother when PW5 had already told them where their mother was. Also, from the witness narrative it appears that the girls were very familiar with their neighbourhood as they used to go to school and come back on their own as no witness has stated that the girls used to go to school accompanied by an adult. Thus, there is inconsistency in the evidence given by these witnesses to that part of the events of 03/10/2002 when the girls came back home from school and thereafter went missing.
35. Now this Court proposes to examine the witness narrative relating to the search for the girls till their bodies are recovered from the SOC. PW1 says that when he reached home from the Gurudwara at 4.30 PM on 03/10/2002, Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 24 and found the girls missing, he started searching for them and he was joined by several other including PW2, PW3, PW4, PW5 and PW6 and several other persons residing in the village. The search went on late into the night, but the girls could not be found. The next day i.e., 04/10/2002, PW1 went to the police station and gave a missing report of the girls to PW30 Nazir Ahmad who is the IO of this case who undertook the search along with the family members of the girls and the general public in the locality. They started searching the houses of Sikhs and also the unoccupied houses of the migrants. PW 30 says that the house of Jagdesh was locked from outside and had to be opened using a "kundi" and inside in the kitchen, the bodies of the girls was lying on the ground in a denuded state. A steel glass etched with "N.P.S" and "P.unit" with some mustard oil in it was near the bodies. There were some clothes lying nearby. In the course of investigation, strands of hair were seized from the attic, stuck between the beam and the roof which was suspected to be that of the appellant which he left behind while making his escape by jumping from the attic after committing the crime. The statement of the witnesses after they witnessed the SOC are similar and largely corroborate each other and they have been witnesses to the seizure of articles from the SOC which these witnesses have stood by in Court. Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 25
36. As per the case of the prosecution, the appellant was arrested on 06/10/2002. The main evidence against him is his memorandum under section 27 of the Evidence Act. PW30 who is the IO of this case deposes that the appellant was arrested on suspicion and was subjected to interrogation, upon which he disclosed having committed the crime. The appellant disclosed, that on the date of the incident, he was going to the local spring to wash his clothes with his brother when he met two of his cousin sisters. He told one of them (PW8 Satbir Kour) to meet him at the SOC but she never turned up, then about 4.30 PM he saw the girls coming his way and he thought why not have sex with them instead and then took both the girls inside the house of Jagdesh Singh, gave them a few sweets and biscuits that he had purchased from some shopkeeper and then left the place, went to his house from where he got some mustard oil and then raped them and when they began to cry, he murdered both of them by throttling. PW8 Satbir Kaur for whom the appellant says he was wating at the SOC, in her testimony does not state that the appellant ever asked her to meet him at the SOC. In fact PW8 does not even mention that there was any conversation between her and the appellant. All that PW8 says is that she and her sister were returning from the local spring after washing their clothes when they passed the appellant and Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 26 his brother who were going towards the spring. Thus, there is a variation in the deposition of PW8 and the 27 memorandum of the appellant as regards their meeting. PW8 has not been declared hostile and therefore her limited statement is binding on the prosecution.
37. As regards the arrest of the appellant on 06/10/02, the same is also under a cloud of doubt. In this regard, it is necessary to refer to the deposition of PW23 Fareed Ahmad who says that the accused had been arrested on suspicion, prior to bodies of the girls being discovered as the appellant was in a state of intoxication. Thus according to PW23, the appellant was arrested before 04/10/2002 which is the date on which the bodies were discovered, and this goes to the root of the prosecution's case. PW23 is a police constable who has not been declared hostile and so yet again, the statement of this witness is binding on the prosecution. Thus, if the date of arrest of the appellant is itself under doubt, then the 27 memorandum and any seizure made pursuant thereto is also rendered doubtful.
38. As regards the attempt to connect the steel glass found at the SOC to the appellant, the prosecution has relied upon the initials N.P.S etched on it as referring to the brother of the appellant whose name is Narendra Paul Singh. However, PW4 is also Narendra Paul Singh who is the Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 27 father of the victims who was harvesting the crop of his uncle on the date of the incident and returned home only in the evening. The prosecution seeks to connect the glass to the appellant on the basis of his 27 memorandum where he says that he went to his house to get oil in the glass that was subsequently seized from the SOC. Besides that, one glass with identical etching has been seized from the house of the appellant. As per PW23, the appellant had initially told the witness that it was his elder brother Narendra Paul Singh who had committed the rape as he had such an inclination towards children. Thereafter, they arrested Narendra Paul Singh but released him as he informed the police that he was impotent. This witness says that later the appellant made the disclosure u/s. 37 of the Evidence Act and admitted everything. As per PW23, the police never got the appellant's brother tested for potency and instead accepted as gospel truth the suspect's statement that he was impotent. This reflects a totally unprofessional and amateurish investigation on the part of the police. Between the appellant and his brother, the needle of suspicion was stronger against the brother as the etching on the steel glass found at the SOC was more likely to be the abbreviation of Narinder Paul Singh and coupled with the fact that another steel glass was seized from the house of the appellant where his brother also lived, Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 28 suggested that Narinder Paul Singh was the one who should have been strongly investigated instead of the appellant.
39. Now coming to the scientific evidence, the first document is the PMR which has been proved by PW26 and its details are in paragraph 24 supra. The same proves that the victims were brutally raped causing serious and painful injuries to them and there after they were killed by throttling. However, the PMR and its findings cannot by itself be evidence of who committed the crime.
40. The second piece of scientific evidence is the fingerprint expert's testimony. The fingerprint expert is PW28, and he proved his report, details of which are in paragraph 25 supra. He mentions in his testimony that he received the glass and the fingerprint samples of the accused for comparison. Upon examining the steel glass, the expert did not find any fingerprints on it to compare it with the appellants sample. Thus, the report of PW28 is inconclusive and does not link the steel glass seized from the SOC to the appellant.
41. The third piece of scientific evidence is the report of the serologist to whom the strands of hair, allegedly belonging to the appellant, were recovered from the between the beam and the roof in the attic when the appellant is said Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 29 to have made his escape after the crime by jumping from the attic, were sent for analysis. The expert is PW29, and his deposition and report have been dealt with in paragraph 26 supra. His finding after comparing the hair found at the SOC and the comparison done with the sample hair taken from the appellant is "That hair samples marked as K-359 and K-360 were found similar and could be of the same person". The opinion of the expert is speculative and not conclusive when he says that the hair at the SOC could be that of the appellant. It would be unsafe to base a conviction only on the basis of this speculative report in the absence of any strong corroborative evidence.
42. The next piece of evidence is the alleged injury that the appellant suffered when he jumped from the attic while escaping. The police had got him examined by a doctor. That doctor was examined before the Ld. Trial Court as PW25, and the summary of his deposition is at paragraph 23 supra. He says that upon examining the accused he did not find any injury on the body of the appellant. The statement of this witness knocks the basis out of a material fact related to the narrative of the appellant jumping out from the attic after the crime, where the injury suffered by him in the process was a corroborative fact which now stood nullified by the statement of PW25. Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 30
43. One more aspect of the prosecution's case which renders it dubious is that the IO who was examined as PW30 states that the SOC was locked from outside and that they had to force open the door. The SOC was a migrant property which was lying abandoned, and it gave access to anyone and everyone. In this regard, this Court deems it necessary to refer to the cross examination of PW3 Joginder Singh who states that he too used to go inside the SOC before the incident as the owner Jagdesh Singh was his relative. His statement reflects that the house was unattended, and the door was open for anyone to enter it, so the question arises as to who locked the door of the SOC from outside between 03-04/10/2002?
44. As per the disclosure memorandum of the appellant/accused, he was waiting for his cousin PW8 who never came and thereafter the girls are said to have passed by the house when the appellant decided to entice them and rape them. PW8 in her deposition says that the children went missing two days after she chanced to see the appellant and his brother while she was returning with her sister. That would put the date of PW8 seeing the appellant as 01/10/2002 and therefore, the same does not fit in with the disclosure statement of the appellant who firstly states that he had met PW8 while going to the spring and had asked her to meet him at the SOC and if one goes Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 31 by the statement of PW8, this incident was on 01/10/2002 and not 03/10/2002, which was the date of the commission of the offence.
45. The other aspect is that the appellant says that after he enticed the two girls to the SOC, he went to his house get the mustard oil and then came back to the SOC and committed the crime. This shows that there was no need for the appellant to jump from the attic, come back to the front door, lock it and then go home. If he had to lock the front door, he could have come out of it and then locked it, there was no need for him to jump out of the attic. Therefore, the narrative of the prosecution that the appellant jumped out of the attic after committing the offence is based solely on the disclosure of the appellant u/s. 27 of the Evidence Act and it is impermissible in law to use the disclosure statement beyond proving what was recovered at the behest of the accused.
46. When this is seen in the backdrop of the testimony of PW23 who states in cross examination that the appellant was arrested even before the bodies of the girls were discovered along with the inherent attending infirmities of the evidence led by the prosecution, it appears that the disclosure of the appellant has been prised from him and Yasmeen Rashid I attest to the accuracy and authenticity of this document 23.12.2024 32 that is why the same suffers from infirmities as pointed out by this court.
47. Thus, in view of what has been argued, considered and held by this Court hereinabove, the prosecution's case against the appellant is nothing more than a bundle of contradictions, omissions, speculations and conjectures and it has miserably failed to prove the case against the appellant beyond reasonable doubt. Under the circumstances, the impugned judgement of conviction is set aside, and the appellant is acquitted of all charges. He shall be released forthwith. Before parting with the case, this Court records its appreciation for the able assistance rendered by the Ld. Amicus Curiae Mr. M.A. Wani.
48. The appeal is disposed of.
(JAVED IQBAL WANI) (ATUL SREEDHARAN)
JUDGE JUDGE
Srinagar: 20/12/2024
Yasmeen
Whether the order is speaking: Yes
Whether approved for reporting: Yes
Yasmeen Rashid
I attest to the accuracy and
authenticity of this document
23.12.2024