Jammu & Kashmir High Court - Srinagar Bench
Raj Mohammad Piswal vs State Of J&K; And Others on 9 November, 2017
Bench: Mohammad Yaqoob Mir, Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Cr. Appeal No.06A/2012
C/W
Cr. Ref. No.03/2012
Date of decision:09.11.2017
Raj Mohammad Piswal v. State of J&K & ors.
Coram:
Hon‟ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon‟ble Mr. Justice Ali Mohammad Magrey, Judge
Appearance:
For the Appellant(s): Mr. S. T. Hussain, Sr. Adv. with Ms. Nida, Adv.
For the Respondent(s): Mr. M. A. Rathore, AAG, with Mr. Asif Maqbool,
GA.
i) Whether approved for reporting in Yes
Law journals etc?
ii) Whether approved for publication
in press? No
"Per Yaqoob J"
1. Appellant stand convicted by the Court learned Sessions Judge, Baramulla, vide judgment impugned dated 08.06.2012 for commission of offence punishable under Section 302 RPC and vide order dated 12.06.2012, has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/, in default of payment of fine, has been directed to undergo simple imprisonment of three months. The period of detention already undergone, has been directed to be set off. For confirmation of the Cr. Appeal No. 06A/2012 Page 1 of 29 sentence awarded, record of the case has been submitted. Same stand registered as Criminal Reference No.03/2012. Aggrieved by the judgment impugned and order, instant appeal has been filed.
2. Police has swung into action on receipt of report, EXPW-1/1, lodged by PW-1, Abdul Gaffar Ahangar, husband of the deceased, to the effect that on 28.04.2008, he (PW-1) had gone to Village Rohama for purchase of household goods. His mother, Mst. Mukhti, and his wife, Mst. Sakina, went to a nearby forest for getting firewood. Raj Mohammad Piswal (accused) with the intention to kill his wife, was hiding in the forest and abruptly caught hold of his wife and attacked her with an axe repeatedly and killed her. On the basis of said report, case was registered as FIR No.14/2008 P/S Panzullah. On completion of investigation, charge sheet (challan) has been presented to the effect that during investigation accused is established to have committed the offence punishable under Section 302 RPC.
3. Charge against the accused has been framed by the trial court on 19.09.2008 to the following effect:
"That you (accused) on 28.04.2008 at forest Wilanwar had hit Mst. Sakina wife of the Cr. Appeal No. 06A/2012 Page 2 of 29 complainant with an axe and injured her. She succumbed to injuries right on spot."
4. Accused pleaded not guilty and claimed to be tried. Prosecution in support of its case, out of listed 17 witnesses, produced 13 witnesses. Listed witnesses No.8, 13 and 14 have been dropped.
5. On closure of prosecution evidence, accused has been examined under Section 342 Cr. P. C wherein he denied complicity in the crime and claimed to be innocent.
6. After hearing both learned PP as well as counsel for the defence in terms of Section 273 Cr. P. C, Court noticed that it is not the case of no evidence, following mandate of Section 274 Cr. P. C, accused has been asked to enter upon the defence. In defence, he has produced two witnesses.
7. On perusal of the records, PW-2, Mst. Mukhti, mother-in-law of Mst. Sakina (deceased), appears to be the only eye witness to the occurrence. Learned trial court in the judgment impugned has recorded that testimony of Mst. Mukhti appears to be natural and trustworthy. She while saving the deceased has also sustained injuries, statement of Mst. Mukhti, PW-2, Cr. Appeal No. 06A/2012 Page 3 of 29 stands the test of truth. No material has been brought on record which would make the statement of only eye witness, PW-2, Mst. Mukhti, doubtful or shaky and even if there are some minor discrepancies that would not make her statement untrustworthy and not reliable more so when she is a simple illiterate village lady who had lost her daughter-in-law in the hands of the accused. It is also recorded that from all probabilities judged on the basis of the facts and circumstances of the case, there is every reason to believe that the witness Mst. Mukhti has given a true statement of facts with regard to the occurrence on the fateful day of 28.04.2008.
8. There can be no quarrel on the settled principle i.e. conviction can be recorded on the testimony of a sole witness but the golden thread for accepting testimony of a sole witness revolves round credibility and reliability.
9. Before coming to the credibility and reliability regarding testimony of PW-2, Mst. Mukhti, mother-in-law of the deceased, it would be quite advantageous to refer to the case titled "Bhagwan Jagannath Markad Vs. State of Maharashtra" (2016) 10 SCC 537. What has been held by the Hon‟ble Apex Court regarding credibility of the witness and the principles Cr. Appeal No. 06A/2012 Page 4 of 29 thereof have been summarized in para 19 of the judgment, same is quoted here-under:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or Cr. Appeal No. 06A/2012 Page 5 of 29 embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a „partisan‟ or „interested‟ witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness."
10. It shall also be quite advantageous to quote following portion from para 11 and also to quote para 12 of the judgment rendered by the Hon‟ble Cr. Appeal No. 06A/2012 Page 6 of 29 Apex Court in the case of "Vadivelu Thevar Vs. State of Madras" AIR 1957 SC 614:
"......... Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable."
"12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of Cr. Appeal No. 06A/2012 Page 7 of 29 witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
11. It shall also be quite relevant to quote para 12 of the judgment rendered by the Hon‟ble Apex Court reported in (2016) 3 SCC 26:
"12. Observing that there is no impediment for recording conviction based on the testimony of a single witness Cr. Appeal No. 06A/2012 Page 8 of 29 provided it is reliable in Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012) 1 SCC 10, it was observed as under:-
"49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence." [See Vadivelu Thevar v. State of Madras, Sunil Kumar v. State (Govt. of NCT of Delhi, Namdeo v. State of Maharashtra, and Bipin Kumar Mondal v. State of W.B."
12. Para 14 of the judgment rendered by the Hon‟ble Apex Court in the case captioned "Deny Bora Vs. State of Assam" reported in (2015) 1 SCC (Cri) 293, shall be apposite to be quote here-under:
Cr. Appeal No. 06A/2012 Page 9 of 29
"14.As we find, the conviction wholly rests on the sole testimony of PW14. It is well settled in law that conviction can be based on the testimony of a singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi) that: (SCC p.371, para 9) "9...as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration."
The same principle has been reiterated in Namdeo v.
State of Maharashtra by stating that it is open to a competent court to fully and completely rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable."
13. PW-2, Mst. Mukhti, being the mother-in-law of the deceased also falls within the category of „close relative‟ witness, therefore, the principle of strict scrutiny has to be applied.
14. It shall be quite beneficial to quote para 11 of the judgment delivered by the Hon‟ble Apex Court in the case of "Baliraj Singh v. State of Madhya Pradesh" (AIR 2017 SCW 2114):
Cr. Appeal No. 06A/2012 Page 10 of 29
"11. Thus, it is true that other than PW12-family friend of the deceased, the prosecution has not made any independent witness from the village people who rushed to the place of offence along with PWs 8 &9 on hearing hue and cry from the field. The circumstances warrant application of due care and caution in appreciating the statements of eye-witnesses because of the fact that the prima eye-witnesses are related interse and to the deceased. Hence, the prosecution has failed to put a strong case as we cannot attach credence to the statements of PWs 8, 9 & 12. The courts below erred in not applying the principle of strict scrutiny in assessing the evidence of eye witnesses (PWs 8, 9 & 12)."
15. PW-2, Mst. Mukhti, cited as eye witness to the occurrence, what she has deposed and recorded by the trial court has not been appropriately reproduced in the judgment, therefore, her full statement as recorded by the trial court in Urdu language has to be reproduced in English language as the whole case revolves on her testimony.
16. PW-2, Mst. Mukhti, in her statement, has stated that the accused is known to her. She and her daughter-in-law, Mst. Sakina, had consumed morning tea. She asked Mst. Sakina to stay back at home, however, did not Cr. Appeal No. 06A/2012 Page 11 of 29 agree and accompanied her to forest for collecting firewood. As soon as she(witness) started collecting firewood, accused appeared, caught hold of Mst. Sakina and then hit her head with an axe, deceased fell down, her head was injured, blood was oozing. On her (witness‟s) cries, her husband (PW-3) reached on spot. Thereafter Lumberdar (Numberdar) and Village Guard (Chowkidar) reached on spot. Deceased died on spot. Her (witness‟s) husband telephonically informed the police. Police came on spot and carried dead body to Police Station and then to hospital. After postmortem dead body was handed over to them. Her statement was recorded in the court at Dangiwacha. She has deposed same thing as she is deposing in the court (trial court). Statement recorded under Section 164-A Cr. P. C available on the record is correct, so is exhibited as EXPW 1/1. The accused also inflicted one hit on her arm with the axe, as such, she got injured.
On the cross-examination by the counsel for the accused has stated that distance from the forest up to her home is one kilometer. It takes 1 - 2 hours in reaching to forest from their house and it also takes two hours in reaching back from the forest to home. Cries(Voice) can‟t be heard at her house because forest is at a distance. When she and deceased went to the Cr. Appeal No. 06A/2012 Page 12 of 29 forest, her (witness‟s) husband was at his home. At that time, some more people were grazing their cattle in the forest, however, they are residents of a far off village. 2, 4 girls were also collecting firewood. Rustum and Shami, at the time of occurrence, were also present in the forest. The accused used to come to their house, therefore, she knows him. One year prior to the occurrence, accused had come to their house, he was served tea. Thereafter she has seen the accused in the Court, then said after occurrence she has seen him in the Court, again said that she had also seen the accused in the police station. After he had come to their home, thereafter she has seen the accused in the police station. Accused is a carpenter, so used to come to their home to do the work of a Carpenter. Deceased and she (witness) were together collecting the firewood in the forest. Accused abruptly came and hit the head of the deceased with an axe. At the time of occurrence, face of the deceased was not covered, however, she had a dupatta on her head. Accused had worn shirt and trouser and was carrying cloak(Pheran) in his left hand. Cloak(Pheran) was not in a lining whereas shirt and trouser were of "Naswar" "olive green" colour. After occurrence, she (witness) ran back and informed her husband. It took her one hour in going to home. Her husband (PW-3) accompanied her to the spot. It took them approximately one hour in reaching to the place of occurrence. At Cr. Appeal No. 06A/2012 Page 13 of 29 that time dead body of the deceased was lying there. When they reached there, accused ran away from the spot. In the forest, the girls who were collecting firewood and grazing cattle had already reached on spot. She does not remember the names of those girls who had reached on spot. On seeing the occurrence, she fell unconscious and regained after one hour. When she (witness) had left the place of occurrence to call her husband, on way she was not in proper senses. From the place of occurrence, her husband informed the police telephonically. Mobile phone was lying with the deceased which was taken by her husband (PW-3) and used to inform the police. Her husband (PW-3) took out the phone from the pocket of the deceased. When police reached on spot, she (PW-2) was present. On the date of occurrence itself, police reached on spot after approximately two hours. 5-8 police persons reached on spot. Her statement was recorded by the police. Police prepared the papers on spot and did photography. The statements of people who were present on spot were recorded by the police. She (witness) has no idea as to whether police had taken her thumb impression or not, has no idea as to whether she had gone to Watergam but had gone to Dangiwacha along with police for making the statement before the Judge Sahab and Judge Sahab recorded here statement. Cr. Appeal No. 06A/2012 Page 14 of 29
17. In the light of the statement of PW-2, now it has to be seen:
(I) Whether her testimony stand the test of credibility and reliability so as to form base for conviction of the accused;
(II) Whether contradictions in the statement of PW-2, then the contradictions as appear from the testimony of other prosecution witnesses are glaring effecting the credibility or minor to be ignored.
18. PW-2 has stated that when Mst. Sakina was attacked, she (PW-2) raised an alarm, her husband besides Lumberdar and Chowkidar reached on spot whereas during her cross-examination she has made it clear that forest is at a distance of one kilometer from their house and it takes one to two hours to cover the distance. Then qualified that shouts/cries cannot be heard in her house from the forest. On this count, what is to be believed? On one hand she states that she raised alarm, on hearing so, her husband, Lumberdar and Chowkidar reached on spot but on the other hand, in her cross-examination she has deposed that her house is at a distance of one kilometer from the forest and then has qualified that when accused inflicted axe blow on the deceased, she (PW-2) rushed to inform her husband about the occurrence and it took her one hour to reach to her husband and one hour to reach back to forest.
Cr. Appeal No. 06A/2012 Page 15 of 29
19. Now it shall be appropriate to notice as to what PW-3(husband of PW-2), PW-4 (Chowkidar) and PW-5(Numberdar) have stated.
20. PW-3, Ghulam Qadir Ahangar (father-in-law of the deceased) has stated that his wife, PW-2, along with deceased left towards forest to collect firewood. After 5 to 10 minutes his wife came back and informed him that Mst. Sakina was killed by the accused. He reached on spot. Thereafter Nazir Khan and Samandar Khan appeared on spot. Then has also qualified that he and his wife (PW-2) were first to arrive on spot.
21. PW-4, Mohammad Rustum Khan (Chowkidar) has stated that he heard some cries. He was told by PW-2 that the deceased was killed by the accused in the forest. He rushed to the place of occurrence and found the dead body lying there. In the cross-examination has stated that he was told about the occurrence by PW-2, mother-in-law of the deceased. Mother-in- law of the deceased cried from the forest and he heard the same at his home and went on spot along with Lumberdar and other villagers. Lumberdar was with him when they heard cries raised by mother-in-law of the deceased. When he reached on spot, mother-in-law of the deceased was alongside the dead body.
Cr. Appeal No. 06A/2012 Page 16 of 29
22. PW-5, Shah Zaman Khan (Lumberdar) has stated that PW- 4(Chowkidar) called him and informed that murder has taken place near village. PW-1, PW-2 and PW-3 were present on spot besides many others.
23. According to PW-4(Chowkidar), he heard cries but then said PW-2 told him about occurrence whereas PW-5(Lumberdar) has not said that he heard any cries. He has stated that, in fact, Chowkidar informed him that murder has taken place.
24. The first aspect of the case is as to whether PW-2, Mst. Mukhti, had witnessed the occurrence because her statement is contradictory. First she says that she raised alarm, her husband, PW-3, came on spot whereas her husband, PW-3, has stated that his wife had come back from the forest only after 5 - 10 minutes and informed that Mst. Sakina has been killed by the accused. PW-2 has stated that she rushed to home which is at a distance of one kilometer. Then again has exaggerated by saying that it took her one hour to reach to home and one hour to reach back to spot. Which one is to be believed?
25. It is established that the house of the deceased is situated at a distance of one kilometer from the forest. Normally, cries of a person cannot be Cr. Appeal No. 06A/2012 Page 17 of 29 heard from the forest, perhaps in the same background, PW-2 has tried to give it a cover by saying that when accused attacked deceased, she rushed to her home and informed her husband. PW-4(Chowkidar) has also stated that it is PW-2 who told him about the occurrence. PW-5(Lumberdar) in his statement also nowhere says that he heard cries but simply says that Chowkidar informed him about the murder.
26. The credibility of PW-2 gets further exposed because according to her she raised alarm upon which her husband(PW-3), PW-4 and PW-5 came on spot, which is not a fact because PW-4 and PW-5 have not supported the same. PW-3 has stated that it is he and his wife, PW-2, who first reached on spot. Then it is PW-2 herself who in her cross-examination has qualified that cries could not be heard in her house from the forest.
27. In the stated facts and circumstances, presence of PW-2 on spot at the time of occurrence appears to be doubtful.
28. Learned trial court while recording findings has observed that PW-2, Mst. Mukhti, while attempting to save deceased, also received axe cut on her arm. Though there is medical evidence to the effect that the PW-2 had received some cut but PW-2 has nowhere stated in her statement that at any Cr. Appeal No. 06A/2012 Page 18 of 29 point of time she intervened to save her daughter-in-law. Here a finger of suspicion about credibility of the witness i.e. when PW-2 claims that she saw the accused attacking her daughter-in-law with an axe, there could be some reaction. She has not stated anything about the same in her statement.
29. Credibility of PW-2 is further exposed by the fact i.e. according to her when she along with her husband, PW-3, reached on spot, on noticing the occurrence, she fell unconscious and regained after one hour. It will suggest and is inferable that she was not present at the time of actual occurrence and in fact when she and her husband reached on spot, finding dead body of her daughter-in-law fell unconscious, means she was shocked. In case she would have witnessed the occurrence, then same would have happened to her at that time. The position that while seeing the dead body she fell unconscious has not been reflected in the judgment by the learned trial court while translating statement of the said witness. According to PW-2, two persons, namely, Rustum and Shami were present in the forest. In addition thereto, according to her, some other people were also present in the forest with their cattle and 2-4 girls were also collecting firewood. Neither Rustum, Shami nor 2-4 girls or other people have been cited as witness nor produced as witness, in case it would have been so, at Cr. Appeal No. 06A/2012 Page 19 of 29 least Investigating Officer would have recorded their statements and cited them as witness. Either PW-2 lies or IO lies or was incompetent not to record their statements or to verify their credentials. This casts a serious doubt upon the testimony of PW-2.
30. One more position which has emerged giving rise to serious doubt i.e. PW-3, father-in-law of the deceased, has stated that when PW-2, his wife, and the deceased went to forest, he was sitting at his home along with a guest, namely, Mohammad Afzal. When his wife, PW-2, came back and informed that the deceased was killed, said guest Mohammad Afzal also accompanied them but he has not been cited as a witness.
31. Other witnesses too have not in any manner supported the prosecution case. PW-1, Abdul Gaffar, husband of the deceased, has stated that on the date of occurrence i.e. 28.04.2008, he had gone to Village Ruhama to purchase some household items. He was informed by his father telephonically that his wife, Mst. Sakina, has been killed by the accused in the forest. He went to police station and lodged a written report about the occurrence which stands exhibited as EXPW 1/1. Further states that he went on spot along with police where dead body was lying. Here again a question i.e. if he was informed telephonically by the father, PW-3, that his Cr. Appeal No. 06A/2012 Page 20 of 29 wife has been killed but in the report, EXPW 1/1, he has mentioned that the accused while hiding in the forest abruptly caught hold of his wife and gave axe blows one after the other on the deceased till she died, how he could know it and who told him like that. The language used in the report and its contents suggest that PW-1, with all calculations, has tried to involve the accused for a reason i.e. deceased was firstly married to the accused who had divorced her but later on she was married to PW-1. PW-1 had not seen any occurrence. To say that the accused gave axe blows one after the other is not even stated by PW-2, Mst. Mukhti, who claimed to be present on spot at the time of occurrence. No doubt, he had stated he was informed about the occurrence by his father on phone but his father had not seen the occurrence as to how it occurred. Then has qualified that when he reached on spot along with police, Lumberdar Shah Zaman Khan, Rustum, Rashid Khan and others were present. He has also qualified that place of occurrence is about ½ kilometers away from his home. From the testimony of this witness element of implication of the accused without base is discernible.
32. Disclosure Statement: The accused is stated to have made a disclosure statement which has been exhibited as EXPW 4/2. The Cr. Appeal No. 06A/2012 Page 21 of 29 disclosure statement has been recorded on 2nd May, 2008 by SHO, P/S Panzulla. The thumb impression of the accused is shown to have been taken. The disclosure statement is shown to have been recorded in presence of PW-4, Chowkidar Mohammad Rustum Khan, PW-5, Lumberdar Shah Zaman Khan and Ghulam Mohi-ud-din ASI No.1247/S.
(a) PW-4, Mohammad Rustum (Chowkidar) has stated that the accused was arrested after three days of occurrence, he confessed the guilt before the police which was reduced into writing and he(PW-4) signed it. In the cross-examination he has made it clear that the accused was in the kitchen when he confessed his guilt. While confessing he was taking his meals. All police men and accused were taking meals but he has not stated as to what accused disclosed nor contents of the disclosure statement have been read over to him (witness).
(b) PW-5, Shahzaman Khan has clearly stated that no disclosure statement was made by the accused in his presence. He has also qualified that in his statement recorded under Section 164-A Cr. P. C by Dangiwacha court, it has been wrongly recorded that in his presence accused made disclosure that the weapon of offence with which he killed Mst. Sakina had been kept hidden in the house of Karamdin Din Khatana. Cr. Appeal No. 06A/2012 Page 22 of 29
(c) PW-15, Ghulam Mohi-ud-din ASI, while examination during trial has not said anything about the disclosure statement EXPW 4/2.
(d) Even PW 16, Inspector Ghulam Mohi-ud-din, has not said anything about the disclosure statement EXPW 4/2 except that upon disclosure of the accused, axe, the weapon of offence, was recovered at Galibal.
33. It is trite that the disclosure statement is admissible only to the extent of recovery made after disclosure. After alleged disclosure, according to prosecution, the weapon of offence, axe was recovered at the instance of accused from the residential house of Karamdin Khatana R/o Galibal in presence of Karamdin Khatana. The recovery memo shown prepared by SHO, P/S Panzulla on 02.05.2008 has not been proved at all.
34. PW-6, Karamdin Khatana the only independent witness to the recovery, has stated that the police was taking tea in the house of his brother. He was called there and his thumb impression was taken on a paper. Nothing was recovered from his house neither any axe was recovered from his house at the instance of accused. He has wrongly been shown as witness to the recovery memo. Contents of the recovery Cr. Appeal No. 06A/2012 Page 23 of 29 memo are incorrect. The accused had not visited his house nor had he handed over any axe to him.
35. PW-16, Inspector Ghulam Mohi-ud-din, who had prepared the recovery memo too has not proved the contents of recovery memo. In his statement he has further qualified that number of other people were present when the weapon of offence was recovered but the question arises as to why he has not cited any other person as witness to the recovery, so a concoction.
36. The disclosure statement first has not been proved fully, second it loses its significance because recovery is not proved. The disclosure statement is admissible in evidence only to the extent of recovery. When recovery is not proved, it automatically becomes irrelevant.
37. Learned trial court has fallen in error while appreciating the evidence vis-à-vis disclosure statement and the recovery memo. In a most casual fashion and in a most irresponsible manner, has discarded the testimony of PW-6-Karamdin Khatana who has stated that the weapon of offence was not recovered from his house, at the same time trial court has lost sight of an important aspect i.e. as to why IO had cited PW-6 alone as a witness to Cr. Appeal No. 06A/2012 Page 24 of 29 recovery, why IO has not cited any other person as witness when he himself has stated that many persons were present at the time of recovery.
38. Casual appreciation of evidence by trial court is totally disturbing because appreciation of evidence is of essence for reaching to any conclusion. Learned trial court has unfortunately erroneously laid much stress on disclosure statement ignoring that the recovery memo has not been proved at all. Such type of appreciation runs contrary to the basic object of Sections 25, 26 and 27 of the Evidence Act.
39. Recovery of weapon of offence, apart from recovery memo, has not been proved. Alleged weapon of offence, axe, is available in forest areas in every house. There was no bloodstain available on the axe neither finger prints were available. As per opinion of FSL. EXPW 11/1, the lifted prints marked as Q1 to Q4 are faint and do not reveal sufficient ridge characteristics details, hence no opinion is possible. In another opinion about bloodstains, EXPW 10/1, FSL has opined that bloodstains were not detected on exhibit No.M-89/08,which was mark of axe, the alleged weapon of offence.
Cr. Appeal No. 06A/2012 Page 25 of 29
40. Learned trial court has, in essence, predominantly relied on the testimony of PW-2, Mst. Mukhti, mother-in-law of the deceased but in the process has erred in not appreciating her evidence in the manner it should have been because when testimony of a solitary witness is to form base for conviction then credibility and reliability assumes importance. The credibility must be such which must be unimpeachable. Secondly, mother- in-law being closely related, therefore, principle of strict scrutiny was to be followed which the learned trial court has not, as is made clear hereinabove.
41. Regarding recovery of weapon of offence, learned trial court has placed much reliance on the statement of PW-15, ASI Ghulam Mohi-ud- din, but while appreciating his statement, it is clear that he has not proved the recovery. The recovery memo has not been exhibited at all and the testimony of such a witness is totally unacceptable because when a high rank police officer has stated that the recovery of weapon of offence was effected in presence of many people, why he has not cited any such person as witness to said recovery in addition to PW-6, Karamdin Khatana, from whose house axe was allegedly recovered when according to him it was never recovered from his house. One wonders as to how learned trial court Cr. Appeal No. 06A/2012 Page 26 of 29 has relied upon recovery of weapon of offence when it is not proved, then even recovered weapon did not contain any bloodstain or finger prints though it was tried to be justified by stating that after few days weapon of offence was recovered. The recovery part is totally demolished by the independent witness, PW-6, Karimdin Khatana.
42. Trial court appears to have been swayed by the gruesome murder but Court of law can‟t afford to be swayed. Justice has to be administered in accordance with law. Accused was husband of the deceased who after divorce was married to PW-1. It appears that in the same background, finger of suspicion has been raised against the accused and has been implicated.
43. Contradictions in the testimony of PW-2 are so glaring, as quoted hereinabove, which by no standard can stand the test of credibility and reliability and then being close relative, on strict scrutiny, is found to be unsafe for recording any conviction.
44. On complete appreciation of evidence in the background of law and the principles as laid down, as referred to above, there is no scope for holding the appellant as guilty. It is quite painful that a young lady, Mst. Cr. Appeal No. 06A/2012 Page 27 of 29 Sakina, has lost her life but the killer has remained to be reached to and punished. The investigating agency has not shown that commitment, may be because of lack of skill of investigation. In the process they appear to have hoodwinked the case in order to show that a murder case is solved. The murder of deceased has remained a mystery which has been compounded by the unskilled investigation. Quite shocking that a gruesome murder of a young lady has remained to be unearthed and in the process inhuman criminal whosoever it was responsible for killing the deceased has gone unpunished.
45. While summing up, the only inescapable conclusion is that charge against the accused has not been proved, therefore, appeal is allowed. Judgment dated 08.06.2012 pursuant to which accused has been convicted and the order dated 12.06.2012, pursuant to which accused has been sentenced to life imprisonment being unsustainable, as such, set aside. The appellant is acquitted, shall be released forthwith.
46. In view of above conclusion, Criminal Reference seeking confirmation of sentence shall, accordingly, stand answered in negative. Cr. Appeal No. 06A/2012 Page 28 of 29
47. Trial court record along with copy of the judgment be sent to the learned trial Court. Superintendent Jail concerned be also informed accordingly.
(Ali Mohammad Magrey) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
09.11.2017
"Bhat Altaf, PS"
Cr. Appeal No. 06A/2012 Page 29 of 29