Bashir Ahmed Wagay vs State of J&K

Bansi Lal Bhat, J.—This appeal is directed against judgment of conviction dated 20.12.2012 and order of sentence dated 22.12.2012

formulated by learned Sessions Judge Kulgam by virtue whereof appellant - Bashir Ahmed Wagay (hereinafter referred to as 'accused') stands

convicted of offence under Section 302 of RPC and sentenced to undergo imprisonment for life besides paying a fine of Rs. 2,000/- (Rupees Two

Thousand), in default to suffer three months simple imprisonment. Confirmation Reference in terms of provisions of Section 374 of Cr.P.C.

submitted by the learned Sessions Judge is clubbed with the appeal for disposal. The accused was tried along with one Mst. Saida w/o deceased

Ismail Naik resident of Asnoor on the basis of Charge Sheet filed by Station House Officer of Police Station Damhal Hanjipora in case registered

under FIR No. 53 of 1990 alleging commission of offence under Sections 302,109 of RPC. It appears that initially the case was committed to the

Court of learned Sessions Judge Anantnag in absence of accused who were allegedly absconding but was remanded back to Magistrate to adhere

to the mandate of Section 205-D and 193 of Cr.P.C. After some inept handling of the case causing unnecessary delay, the case was committed to

Court of Sessions after the accused- Bashir Ahmed Wagay was arrested. Learned Sessions Judge framed charges against the accused for offence

under Section 302 of RPC. With the creation of Sessions Division for newly created District of Kulgam the case stood transferred to learned

Sessions Judge Kulgam. The trial culminated in slapping of conviction and life sentence upon the accused as aforesaid.

Prosecution version, as unfolded in the Charge Sheet, is that on 30.10.1990 one Abdul Qadeer Naik laid information at Police Station D.H.

Pora to the effect on 29.10.1990 deceased Ismail Naik had gone to the forest for bringing fire wood but he had not returned back to his home till

evening. The informant further stated that Basharat Ahmed Naik and Showkat Ahmed Naik, who had set out in search of the deceased,

discovered dead body of deceased lying in a pool of blood at a place and they informed Mohd. Amin Naik who also went on spot. They had

noticed blood stains on the Goriwan road and found grievous injuries on the head of the deceased. These witnesses had found a wooden log lying

besides the dead body. As per informant it was suspected that the deceased had been murdered by the accused Bashir Ahmed Wagay on

instigation of Mst. Saida wife of deceased as the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida and he wanted to

contract marriage with her. This information led to registration of case under FIR No. 53/1990 for offence under Section 302 of RPC. During the

course of investigation body of deceased was seized along with blood stained clay, stones and a wooden log from the place of occurrence. The

seized articles were sealed on spot. Post Mortem Examination was conducted on the body of the deceased. The wearing apparels of deceased

were seized. It was found that the deceased had sustained fatal injuries on his head which had been caused by a Danda (stick). Accused Bashir

Ahmed Wagay was arrested on 03.11.1990 and on his Disclosure Statement a wooden Danda was recovered at his instance from his house. The

investigation revealed that the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida- the wife of deceased and the latter

wanted to contract marriage with accused Bashir Ahmed Wagay. Mst. Saida had children from the deceased-husband and she had resorted to

pressure tactics harassing the deceased to compel him to divorce her. Ultimately, she hatched a criminal conspiracy with accused Bashir Ahmed

Wagay to eliminate her husband and in furtherance of such conspiracy accused-Bashir Ahmed Wagay committed murder of Ismail Naik. The

material assembled during investigation established complicity of accused Bashir Ahmed Wagay in offence under Section 302 of RPC while

offence under Sections 302 /109 of RPC was found to have been made out against Mst. Saida. Accused Bashir Ahmed Wagay escaped from

Police lockup and case under FIR No. 56 of 1990 for offence under Section 224 of RPC was registered against him. Accused Bashir Ahmed

Wagay had removed Mst. Saida to an unknown place and she was at large while accused Bashir Ahmed Wagay had been arrested and put on

trial after he pleaded not guilty to Charge under Sections 302, 109 of RPC framed against him by learned Sessions Judge Anantnag.

Prosecution adduced evidence of thirteen witnesses at the trial while PW(s) Basharat Ahmed Naik and Showkat Ahmed Naik, sons of

deceased who were nominated as witnesses in the FIR died during the course of trial before appearing in the witness box. Brief resume of

prosecution evidence is adverted to herein below:

Prosecution Evidence

PW-1- Mohd. Amin Naik: is the brother of deceased. He deposed that about eighteen years before his date of examination, while he was sitting in

his house in the evening, sons of deceased approached him saying that the deceased had gone to forest for fetching wood but did not return. They

claimed to have seen something looking white from a distance but due to fear they did not go near to it. The witness claimed that he accompanied

his nephews to the place. He noticed the body of deceased lying in a nallah about 35 feet deep. A kanwatoo (support for carrying weight) and an

axe were lying on spot. The witness claimed that he informed the Lambardar who went to Police Station for lodging FIR. Police arrived on spot.

Accused Bashir Ahmed Wagay was arrested but he escaped from Police custody. Then after 1-1/2 years the accused lifted the wife and daughter

of deceased. The elder son of deceased located them at Chandigarh after five years. The deceased had sustained head injury and he was drenched

in blood. The witness further deposed that he did not know the reason behind the killing of deceased but hastened to add that the accused had

illicit relations with the wife of deceased. Police seized the body of deceased and got its autopsy conducted. The witness testified to the contents of

Recovery Memo marked Ex. PW-5. He also supported contents of Memo of body of deceased delivered to NOK vide Ex. PW-5/1. He had

seen blood stains on the road. Police seized a blood stained stone lying on the road vide Ex. PW-5/2. On cross examination the witness stated that

he was an illiterate. That he had informed the Lambardar Abdul Qadeer who lodged report at the Police Station. Deceased lived at a distance of

half kilometer from his house. The place of occurrence also lies at the same distance from his house. Body was lying in a nallah by the side of a

road. Big stones were found in the nallah. The accused was on visiting terms to the house of deceased and he would visit the house even in

presence of deceased. The witness admitted that he was not an eye-witness of the alleged occurrence. He admitted that if somebody had a fall

from the top into the nallah he would die. Body of deceased was lying with face upwards. Body was directly removed from the spot to Damhal.

Sons of deceased approached him at 8 pm. The deceased was about 60 years old.

PW-2- Abdul Mannan Naik: deposed that it was in September/October nineteen years before his examination that at 9.30 pm village Lambardar

called him through a messenger who stated that Ismail had been murdered. He left his house and found the Lambardar waiting for him on the road.

Some villagers were proceeding towards Goriwan. He noticed blood stains on the road though attempt was made to hide the same by covering it

with clay. Body of deceased was found lying in nallah about 20 feet deep. There were stones on the ridge from where the body of deceased had

been thrown into the nallah. He asked some people to keep vigil. The villagers were saying that the deceased had been murdered by the accused

Bashir Ahmed Wagay as the accused had illicit relations with the wife of deceased since long. Lambardar sent a report to Police Station Damhal

through a messenger. Police arrived there on the following day and arrested accused Bashir Wagay. Blood stained clay and blood stained stone

were seized. The witness testified to contents of Seizure Memo of log of wood, axe, rope, blood stained stone and a taweez vide Ex. PW-7/1,

wearing apparels of deceased vide Ex. PW-7/2, cash amount of Rs. 201/- recovered from the pocket of the deceased besides blood stained

stones, clay and hair vide Ex. PW-5/2. Accused had demonstrated how he killed the deceased. He had stated that he had assaulted the deceased

with a danda when the deceased was carrying the wooden log. Accused stated that he was lying in wait for the deceased to come so that he could

strike him. The danda was recovered at the instance of accused from his bed. The witness supported Recovery Memo marked Ex. PW-7/3. He

also testified to contents of Memo regarding seizure of body of deceased marked Ex. PW-5. He also testified to the receipt of dead body marked

Ex. PW-5/1. (Note: Prosecution failed to produce seized articles which had been found missing in Court at Anantnag in respect whereof an inquiry

was ordered). On cross examination the witness stated that the whole village barring one or two families belonged to Ahmedi sect. The accused

Bashir Wagay too belonged to Ahmedi sect. Brother and sister of deceased resided on right and left side of the place of occurrence respectively

but the place of occurrence was not visible from their houses. Both houses lie at a distance of about 200 feet from the place of occurrence.

Noise emanating from place of occurrence could not be heard in both houses. Body of deceased was lying in the deep gorge just below Goriwan

which is away from the forest. Log of wood was lying near the body of deceased. The body had also been thrown from the top. However, the

bones were not fractured. The deceased had been struck on the back of his head. In his opinion one would not die by having a fall from the top.

FIR was lodged in the morning. Widow of deceased stayed for six months in the house of deceased. A son of deceased later took to militancy and

he was killed at Dargah. Accused Bashir Ahmed Wagay was arrested on the day following the occurrence and he got the danda recovered at his

instance. Accused Bashir Wagay had confessed before him that Mubarak Ahmed Dar had seen him committing murder of deceased. He had told

the police about it. However, Mubarak Dar had not told the witness that he had seen the occurrence. The witness further stated that he had seen

the accused indulging with the wife of deceased but he had not reported the matter to Police. However, he had protested to accused. Accused

Bashir Ahmed Wagay had escaped from Police custody after about eleven days. He learnt about the accused after about twelve years when the

accused sent back the wife of deceased from Chandigarh. Accused never visited the village after he escaped from Police custody. The axe

recovered from the spot did not bear blood stains. Seized articles were not shown to him in Court. He did not know as to why Police did not

arrest wife of deceased though she was living in the village for six months after the death of deceased. Lambardar had sent Chowkidar to Police

Station at 6 am of the day following the occurrence and the FIR was registered at 10 am.

PW-Mubarak Dar deposed that he knew the accused and the deceased. It was around 20 years before recording of his deposition. He had

engaged a girl from his village for collecting firewood. Since it was late in the evening, he told her to stay at his home. However, the girl told him

that her father would be angry with her. So he left for her house to inform her father. It was around 7.45 pm. After informing her father he was

returning to his house. He had completed part of the journey when he heard the sound of hurling of danda blow coming from right direction. He hid

himself behind a walnut tree. Then he heard sound of second strike of danda which resulted in collapse of deceased-Ismail Naik who fell down on

the ground with the log of wood he was carrying. The danda strikes were given by the accused. Deceased appeared to have died. The accused

carried him to a little distance, placed his body on an elevated spot, untied the rope of the wooden log and fastened the same with the waist of

deceased and then he pushed down the body of deceased from the height. Then he went to the spot where the body had fallen, dragged it to lay it

on a big stone and untied the rope from his waist. Then he came back to the elevated spot, picked up the log of wood, carried it down to the spot

where body of deceased was lying and placed the wooden log across with the head of deceased lying beneath it. Thereafter the accused came

back and stood on the pathway. The witness claimed to have got frightened. He left the place following the pathway after the accused was hastily

moving on the same pathway ahead of him. The accused stopped and confronted the witness after he passed through a gorge. The accused

enquired about his identity. The witness disclosed his identity. The accused was walking on the slope about twenty feet below the pathway while

the witness was walking on the pathway which lay on a height of about twenty feet. The accused then enquired about Amin Naik and the witness

told him that Amin Naik was working in his house for the whole day. The witness claimed that the accused stopped there but the witness turned

panicky and rushed to his house.

The witness claimed to be a heart patient and stated that his family members got disturbed on noticing his condition but he did not disclose about

the incident. In the morning he went to Shopian to consult a Doctor who told him that his Cardiac problem has aggravated due to tension.

However, the witness did not disclose the reason for tension before the Doctor also. After staying at Shopian for the night he went home where he

was told that DySP had called him in connection with murder of deceased. In the morning he went on spot where he found the Police interrogating

the accused. Later Police brought him to the village and in presence of witness in the house of Abdul Qadeer, accused was further interrogated

about the person who had witnessed the occurrence. When the accused was brought before the witness, the accused identified him. On further

interrogation accused told the Police that he wanted to kill the witness as well. However, the accused did not make any Disclosure Statement

about weapon of offence in his presence. The witness further deposed that the accused was having illicit relations with Mst. Saida and despite

being warned in Panchayat he did not mend his ways. On cross examination stated that he belonged to Ahmedi Sect. Houses of Ali Khandey

(brother-in-law of deceased) and Amin Naik (Brother of deceased) lie at a distance of 150 feet and 400 feet respectively. No house lies in

between the place of occurrence and the houses of aforesaid persons. The witness stated that he did not inform Amin Naik or Ali Khandey as he

was frightened and it was dark in the night. Ali Khandey lives at a distance of 600 feet from his house. The witness agreed that it was expected of

him to report the matter to villagers in the morning of the following day but he did not do so even after he returned from Shopian where he had

gone for treatment. The reason assigned for this by the witness is that it was too late to speak about the incident by then.

However, he would have informed the villagers even if Police would not have visited the village. At the time of occurrence, he found that the light

was dim. Deceased had three sons. One of them was a militant and he was killed in an encounter at Hazratbal Srinagar. Mst Saida stayed in the

house of deceased for about 20 days after his death and then left the village for some unknown place. He was not aware about arrest of Mst.

Saida. He made the statement before the Police 4 days after the occurrence. Confronted with his statement recorded under Section 161 of

Cr.P.C. the witness denied having told the Police that he had seen the accused hitting the deceased with a danda. He also denied the statement to

the extent that he had heard about murder of deceased on the following day. He also denied the statement to the extent that it was a moon- lit night

and on reaching the spot he found the accused emerging from behind a thorny bush. Thus, he contradicted his version recorded under Section 161

of Cr.P.C. The danda used as weapon of offence was approximately 3 feet long. The witness further stated that at the time of assault on deceased

he was standing across the gorge on a height lying on left side of the accused, the distance between the place of occurrence and the position where

he was standing being around 100 feet. He had not seen the injuries on the body of deceased. The witness reiterated that he was an eye-witness to

the occurrence and the Police theory that there was no eye-witness of occurrence was false.

PW-Haji Abdul Qadeer Naik deposed that on 29.10.1990 at 8.45 pm Amin Naik approached him with complaint that his brother Ismail Naik

who had gone to forest in the morning had not returned till 8 pm. He also informed that while searching for the deceased he had seen blood stains

and marks of dragging on the land near a Nallah at Goriwan. Body of deceased was found lying in a Nallah with a log of wood placed on his

body. Witness along with other villagers rushed to the spot and found the body of the deceased lying there. He asked the villagers to keep a vigil.

He found the villagers indulging in a gossip that the deceased may have been eliminated as the accused had illicit relations with his wife for the last

three years. However, he had not seen the occurrence. The witness claimed to have advised the parties to refrain from illicit relations as he

apprehended a bigger problem to emerge in future. Since it was 11 pm when he returned to his home, he stayed at his home. He called Chowkidar

in the morning at 6 am and lodged verbal information at Police Station lying at a distance of 7 kms. He accompanied the Police party to the village.

Police went on spot and seized the body of deceased, wooden log, rope, axe and Kanwatoo. The witness testified to contents of Seizure Memo

marked Ex. PW-7/1, Seizure Memo of sample of blood of deceased marked Ex. PW-4/1, Seizure Memo of shirt -trousers, Shoes and Cash

amount of Rs. 210/-, blood stained soil, stone and hair of deceased marked Ex. PW-5/2. Police again visited the village on 4th day with accused

accompanying them who took the Police to his house where the accused produced a danda as weapon of offence which was seized vide Ex. PW-

7/3. Blood stained clothes of accused were seized vide Ex. PW-4/2. Police took the accused along. However, it was learnt that the accused had

escaped from Police custody. He later visited the village and took Mst. Saida and her 6 year old daughter along. On cross examination the witness

stated that he was the village Lambardar and had studied upto 8th standard. He along with other village elders resolved the disputes among

villagers. All villagers including the accused belonged to Ahmedi Sect. The witness did not support his statement under Section 161 of Cr.P.C.

recorded on 30.10.1990 that the Police had recovered a danda in his presence and seized the same. He reiterated that the stick was recovered at

the instance of accused after five days of occurrence. He had reported at Police Station at 7.30 am and not at 10 am as recorded in the report.

Ali Khandey lived at a distance of 500 yards from the place of occurrence but he was not cited as a witness as he happened to be blind. Amin

Naik also resided at a distance of 500 feet from the place of occurrence. The witness denied that the accused was brought to his house where he

made a Disclosure Statement before the Police. He had accompanied the Police party to the house of accused who brought out the danda from

3rd floor of his house. The witness also denied the fact that the accused had produced the danda brought out from beneath the bed in 2nd floor of

the house as recorded in Ex. PW-7/3. The witness maintained that the accused had been brought to the place of occurrence for demonstration of

the event/replay action and thereafter the danda was recovered. The seized danda was not sealed on spot. The seized articles including blood

stained clothes of accused were not sealed on spot in his presence. The accused had sustained injuries all over the body including back and legs.

The seized articles were not shown to him in Court. He had not seen where the deceased had sustained fatal injuries.

The wooden log measured 7 ft 4 inches and could be carried by a single person. Fall by a person carrying wooden log of the description besides

an axe would not lead to death. Probably right shoulder of deceased was fractured. The wooden log clearly appeared to have been placed on the

body of deceased to mislead the investigators. The witness further stated Police was not correct in saying that there was no eye witness of the

alleged occurrence. He maintained that PW-Mubarak was an eye- witness. The witness further stated that accused Mst. Saida stayed in village for

about three months but she was not arrested by Police. He denied that her body or private parts were branded with red hot sickle. He further

stated that Mst. Saida had eloped with her paramour after getting her husband killed. Her children accompanied her. One of her sons had joined

the ranks of militants and he was killed in an encounter at Hazratbal. There was a rumour in the village that accused Bashir Wagay had illicit

relations with Mst. Saida. Accused had visited the village and taken Mst. Saida along with her children. PW-Mohd. Ayub Dar, then posted as

Constable at Police Station Dhamhal Hanjipora, deposed that in his presence accused made a confessional statement admitting the he had

committed murder of deceased by giving a strike with a danda over the head of deceased and he had concealed the stick in a heap of dried cow-

dung cakes. The witness testified to contents of Disclosure Memo marked Ex. PW-2/1 bearing his signatures. The Recovery Memo marked Ex.

PW-7/3 did not bear his signatures though a danda was recovered at the instance of accused from his house. Accused absconded after a fortnight

and a separate case was registered against him for the same.

On cross-examination stated that the accused made Disclosure Statement in the compound of Police Station but he did not know when the

accused had been arrested. Besides him one Ghulam Hassan and IO Sanaullah were present there. None else was present at the time of making of

Disclosure Statement by accused. SHO was not present there. His statement was recorded on the same day. Confronted with his statement under

Section 161 of Cr.P.C. the witness admitted that in his previous statement there was no mention of the fact that the accused had concealed the

stick in a heap of cow dung.

PW-Sanaullah Bhat then posted as Head Constable at Police Station D.H. Pora deposed that it was in October 1990 that the accused, after

having been arrested, made a Disclosure Statement in Kashmiri that the danda used in causing death of Ismail Naik had been concealed by him

under his bed and he could point out the same. The witness testified to contents of Disclosure Memo marked Ex. PW-2/1 bearing his signatures.

In his cross-examination the witness stated that during his service tenure of thirty years in Police he investigated a number of cases and also

appeared as witness before various Courts. He did not know under which provision of law the Disclosure Statement was recorded. He had not

conducted investigation in this case. He did not remember who had recorded the Disclosure Statement. The statement was recorded in IO's room

and the accused was not in handcuffs. No civilian was present in the afternoon when the Disclosure Statement was recorded. Accused was lodged

back in lock up after recording the Disclosure Memo. He was taken to the spot on the following day. The witness had not accompanied the Police

Party which affected the recovery. The recovered danda was blood-stained when he had seen it in Police Station.

PW-Dr. Mushtaq Ahmed Lone the then Assistant Surgeon posted in D.H. Pora Hospital deposed that on 30.10.1990 body of deceased was

brought to Hospital and he conducted Post-mortem on the dead body. He proved the Form marked Ex. PW-10/1 in this regard. On examination

of body of deceased he noticed the following injuries:

(a) Incised wound on left parietal region of scalp extending from forehead to occipit 10 cm long;

(b) non-gapping wound on occipit with clear margins horizontal 4 cms long;

(c) non-gapping wound on right side temporal region of scalp 8 cms long extending upto occipit

On opening the head he found left parietal and temporal bones fractured along stural lines 8 cms long. Dura matter lacerated longitudinally along

the lines of bone fractured and brain tissue lacerated and protruding out from the lacerated lepto-meninges. It was marked as Ex. PW-10/2. In his

opinion death was caused due to lacerated brain tissue following head injuries. The deceased died due to head injuries caused by sharp weapon.

The injury caused was sufficient to cause the death of person. The witness proved Post-mortem report along with Injury Form in his handwriting

bearing his Seal and Signature.

On cross-examination the witness stated that rigor had already set in the dead body which means more than six hours had elapsed. Rigor marks

last for 24 hours. He had conducted the internal examination of the body thoroughly. He found no injury on the face of the deceased. No weapon

of offence was shown to him. Injuries had been inflicted before the death. Injuries could have been caused from the back and left side. A person

carrying a log at his back and having a fall down into a gorge 20/30 feet deep covered with rocks will not get the injuries noticed on the body of

deceased but he will get injuries on the multiple sides and will have multiple fractures. Since the strike was sharp and bones were fractured, the

strike must have been caused from a distance of 1 foot. At least one wound with one shot has been inflicted on the deceased. There was no facility

of X-ray in the Hospital and X-ray was not taken. No bruises were present on the body though there were some scratches. Bruises are possible

with a blunt weapon.

PW-Mohd. Yousuf Mir deposed that he had conducted investigation in initial stages. After receiving the information on 30.10.1990 he recorded

FIR No. 53/1990. Information had been lodged by Lambardar Abdul Qadeer Naik. After registration of case he, along with his staff, set out for

place of occurrence at Asnoor. Body of deceased was recovered from Goriwan. FIR and Seizure Memo of body of deceased recorded in his

hand and bearing his signatures testified by him are marked Ex. PW-13/1 and Ex. PW-5 respectively. Injury Memo marked Ex. PW-10/1 was

filled up and sent to Hospital. After completing all formalities, body of deceased was delivered to next of kin of deceased. Before that body was

taken to Hospital for Post-Mortem examination. The witness proved the receipt of body and its Seizure Memo marked Ex. PW-5/1 and Ex. PW-

5/2 respectively. He recorded statements of witnesses and arrested the accused. He further deposed that the accused had made a Disclosure

Statement marked Ex. PW-2/1 which led to recovery of a danda vide Ex. PW-7/3 from his house. The witness testified to the site plan marked

Ex. PW-13/2, Seizure Memo of log of wood, a Kanwatoo and a rope and an axe marked Ex. PW-7/1, Seizure Memo of wearing apparel of

deceased marked Ex. PW-7/2. He also recorded the statement of witnesses. The investigation disclosed that the accused was having illicit

relations with the wife of deceased and he frequently visited the house of deceased. He obtained revenue record with respect to place of

occurrence from Patwari.

In his cross-examination the witness stated that he has served Police Department for 29 years. Son of deceased-named Basharat was

accompanying Lambardar when information about crime was lodged at the Police Station. ASI Mohd. Hassan, Mohd. Khan and Head Constable

Sanaullah were also posted in his Police Station. He did not approach the Executive Magistrate for conducting inquest proceedings. He did not

examine Basharat and Lambardar before proceeding on spot. The body of deceased was identified by Lambardar and Basharat on spot. Copy of

FIR sent to Magistrate bears mark-A. Police Station lies at a distance of 5 kms from the place of occurrence. Court was located at a distance of

500 mts from the Police Station. It was functional at that time. Copy of FIR, received by Magistrate, bears date as 28.11.1990. When asked to

explain the delay in sending FIR to Magistrate the witness requested to go through CD Files but learned Public Prosecutor expressed that the CD

Files were untraceable. Occurrence had taken place on the road at Goriwan and thereafter dead body had been thrown in Goriwan Nallah.

However, he had not marked the place in site plan. The Memo of arrest of accused does not form part of the Court record. He had prepared the

Homicide Report of deceased marked-B on 30.10.1990. Recovery of blood stained articles, stone, hair, wearing apparel of deceased and the

danda is shown in the report-e-marg and recovery is said to have been effected near the body. The danda was in possession of Police when

report-e-marg was prepared. The occurrence had taken place on the road leading towards the forest. It is situated on the ridge adjoining a nallah.

The road does not pass through the nallah. Blood spots were found on the place of occurrence from mark-A to mark-C. He had conducted

investigation at the initial stage. Later part of investigation was conducted under supervision of Abdul Salam. In report-e-marg the column

regarding articles does not bear his signatures though the text is in his handwriting. The statement regarding sending of the articles to FSL bears his

initials. Hassan Mohd had been deputed to Hospital for conducting of Post-mortem examination on the body of deceased. The seized danda was

4 inch x 27 = inch in dimension. Its circumference was of 4 inches. The danda was not having a pointed edge. Since the case was 20 years old, he

may not be able to identify some of the witnesses. The witness admitted the suggestion that there was no eye-witness to the occurrence. He has

not shown the bush stated by PW-Mubarak Dar in site plan marked Ex. PW-13/2 since it was a forest area. There were many bushes and the

witness had not pointed out any particular bush. The seized blood sample and hair of deceased were not sealed before a Magistrate. Seized

articles were not shown to him in Court as learned Public Prosecutor stated that the seized articles were not in his custody and an enquiry was

pending in this regard. The Recovery Memo of danda marked Ex. PW-7/3 does not bear signatures of accused. Case for offence under Sections

109/302 of RPC was registered against Mst. Saida but she was not arrested as the case was pending investigation at the initial stage at that time.

PW-Dr. M.A. Qadri, then posted in FSL Srinagar deposed that he had received articles for serological examination and he conducted the

examination. He proved the FSL report bearing his signatures marked Ex. PW-11/1. He had received five packets of articles from SDPO Kulgam

containing one stone, one torn shirt and undershirt, one shirt, some hair and one wooden danda with hair adhering to it. He found that blood stains

on all items were of human origin.

In his cross examination the witness stated that the packets were sealed with the seal of Executive Magistrate Kulgam. No blood was detected on

the seized hair. He cannot say whether the hair stuck on the stick belonged to a male or a female. He could not also say whether the hair in

question had been plucked, trimmed or cut. The blood was of human origin but he has not described the blood group.

PW-Abdul Salam Rather deposed that the then SHO Mohd. Yousuf Mir and after him SI Ghulam Nabi Sheikh had conducted investigation in the

case. Both the accused, rumored to be having illicit relations, had absconded after the occurrence. Since accused Bashir Ahmed Wagay could not

be arrested, the witness claims to have filed Challan in his absence. The accused were summoned by the Court. Due to transfer of IO-SHO the

witness was entrusted the duty of compiling the Challan. He has not conducted any investigation in the case. He had requested the Court to initiate

proceedings against the absconding accused under Section 512 Cr.P.C.

On cross-examination the witness stated that no Arrest Memo was forming part of Challan as the accused had not been arrested by the time he

produced the Challan before Court. His knowledge about the case is based on hearsay evidence.

PW-Ghulam Hassan Zargar then posted as Constable in Police Station D.H. Pora deposed that accused had made a Disclosure Statement in his

presence in Kashmiri language according to which he had concealed the danda used as weapon of offence in his home. However the Disclosure

Statement did not bear signatures of the witness. The accused subsequently escaped from Police custody and a case for offence under Section

224 RPC was registered against him. Search for the accused did not yield any positive result.

In cross-examination the witness stated that he had seen the CD files in prosecution office before making the statement. Accused was in handcuffs

when he made the Disclosure Statement. The Confessional Statement was made in the compound of Police Station. Sanaullaha and Mohd. Ayub

were present at that time. No civilian was associated at the time of recording of Disclosure Statement of accused. No confession was recorded

before a Magistrate. The witness further stated that the Disclosure Statement was recorded on 04.11.1990 and not on 04.09.1990. He made this

correction after looking at his left palm on which he had written the date. Accused escaped when SHO and IO were on leave but the witness was

on duty on that day.

PW-Dr. Mohd. Yousuf the then BMO D.H. Pora deposed that Police had sought an opinion from him with regard to FIR No. 53/1990. He gave

his opinion marked Ex. PW-12/1 about the weapon of offence which he testified to be correct.

In his cross examination the witness stated that he had not seen the dead body and injuries found thereon. He has not described in Ex. PW-12/1

that the reference with regard to injuries is on the basis of description of injuries given by another Doctor. The weapon of offence was not shown

to him in Court. The nature of wound would be lacerated but not incised if the cause of death is lacerated brain tissue protruding out from the

lacerated lepto-meninges. His opinion would have been different in case a danda with a pointed margin would have been produced before him

along with the Injury Memo.

PW-Haji Ghulam Ali deposed that he was posted as SHO D.H. Pora for a few months. He had examined the CD Files and found that case was

established against the accused. Search was undertaken for tracing out the accused but he was not available. Then the witness was transferred and

he handed over the file to SHO.

In cross examination the witness stated that but for directing search of accused he had not taken any part in investigation.

After conclusion of prosecution evidence, accused was examined under Section 342 of Cr.P.C. to seek his explanation with respect to the

incriminating circumstances appearing from the prosecution evidence against him. Denying his involvement in murder of deceased, the accused

pleaded that since he was a Sunni, people belonging to Ahmedi Sect of Muslims had hatched a conspiracy to implicate him in a false case. The

accused pleaded that he had never been arrested by Police and he had made no Disclosure Statement leading to recovery of danda as weapon of

offence at his instance. Thus, he pleaded false implication and even claimed that the wife of deceased was implicated falsely to grab the property of

deceased. He made no offer to adduce evidence in defense. Consequently, no witness has been examined in defense.

Heard Mr. S.T. Hussain Advocate representing the accused and Mr. Shuja-Ul-Haq, Govt. Advocate at length.

Mr. Hussain submitted that there is no eye witness of the alleged occurrence and this fact is admitted by the then SHO-Mohd. Yousuf Mir who

has conducted investigation in the case. Therefore, testimony of Mubarak Dar who claims to be the solitary eye witness has to be excluded from

consideration. Mr. Hussain further submits that even on appreciation, testimony of PW-Mubarak Dar fails to inspire confidence. In regard to other

mode of proof adopted by the prosecution, viz., Disclosure Statement attributed to accused followed by recovery of danda as weapon of offence

at his instance from beneath his bed in his house, it is submitted that the statement in report-e-marg (homicidal report) proved at the trial indicating

recovery of the danda found lying near the body of deceased discredits the prosecution version about Disclosure Statement of accused followed

by recovery at his instance. On the aspect of motive, it is submitted by Mr. Hussain that the proof is woefully lacking and the fact that the accused

belonged to Sunni Muslim Sect was a motive behind his false implication as the witnesses belonged to the majority Ahmedi Sect inhabiting the

village. It is contended that there is no legal, reliable and credible proof on record to warrant conviction of accused and the burden resting on

prosecution not having been discharged, the case was bound to fail and the accused entitled to acquittal.

Per contra, Mr. Shuja Ul Haq, Government Advocate submitted that the eye witness account of Mubarak Dar was duly corroborated by the

circumstantial evidence and there was no reason for him to falsely implicate the accused who was having illicit relations with the wife of deceased.

Learned counsel has referred to evidence on record to buttress his point that several Panchayats were convened to warn the accused to refrain

from carrying on his illicit liaison with the wife of deceased but he did not relent and considering the deceased an obstacle decided to eliminate him.

It is contended that the accused found opportunity to eliminate the deceased while the later was returning from the forest carrying a log of wood on

his back and passing through a pathway on the ridge. It is further submitted that the accused caused the death of deceased by striking him with a

danda and threw his body in the nallah with log placed over it to mislead the people into belief that the deceased had a fall and he died due to being

hit by the log he was carrying. It is further submitted that the accused has made Disclosure Statement leading to recovery of danda used as weapon

of offence from his house hidden beneath the bed which has been recovered at his instance. It is, therefore, submitted that prosecution has brought

home guilt of accused by sufficient and credible legal proof.

We have gone through the record minutely and re-appreciated the evidence adduced at the trial. This case rests entirely upon proof of

circumstances besides testimony of Mubarak Dar claiming to be the solitary eye witness who admittedly kept the matter close to his chest for a

considerable time offering explanation that he was frightened and did not disclose the facts even to his family, villagers and the Police. He deposed

that on a day around 20 years before recording of his deposition he had engaged a girl from his village for collecting firewood. Since it was late in

the evening, he told her to stay at his home. However, the girl told him that her father would be angry with her. So he left for her house to inform

her father. It was around 7.45 pm. After informing her father he was returning to his house. He had completed part of the journey when he heard

the sound of hurling of danda blow coming from right direction. He hid himself behind a walnut tree. Then he heard sound of second strike of

danda which resulted in collapse of deceased-Ismail Naik who fell down on the ground with the log of wood he was carrying. The danda strikes

were given by the accused. Deceased appeared to be dead. The accused carried him to a little distance, placed his body on an elevated spot,

untied the rope of the wooden log and fastened the same with the waist of deceased and then he pushed down the body of deceased from the

height. Then he went to the spot where the body had fallen, dragged it to lay it on a big stone and untied the rope from his waist. Then he came

back to the elevated spot, picked up the log of wood, carried it down to the spot where body of deceased was lying and placed the wooden log

across with the head of deceased lying beneath it. Thereafter the accused came back and stood on the pathway. The witness claimed to have got

frightened. He left the place following the pathway after the accused was hastily moving on the same pathway ahead of him. The accused stopped

and confronted the witness after he passed through a gorge. The accused enquired about his identity. The witness disclosed his identity. The

accused was walking on the slope about twenty feet below the pathway while the witness was walking on the pathway which lay on a height of

about twenty feet. The accused then enquired about Amin Naik and the witness told him that Amin Naik was working in his house for the whole

day. The witness claimed that the accused stopped there but the witness turned panicky and rushed to his house. The witness claimed to be a heart

patient and stated that his family members got disturbed on noticing his condition but he did not disclose about the incident. In the morning he went

to Shopian to consult a Doctor who told him that his Cardiac problem has aggravated due to tension. However, the witness did not disclose the

reason for tension before the Doctor also. After staying at Shopian for the night he went home where he was told that Dy. SP had called him in

connection with murder of deceased.

In the morning he went on spot where he found the Police interrogating the accused. Later Police brought him to the village and in presence of

witness in the house of Abdul Qadeer, accused was further interrogated about the person who had witnessed the occurrence. When the accused

was brought before the witness, the accused identified him. On further interrogation accused told the Police that he wanted to kill the witness as

well. However, the accused did not make any Disclosure Statement about weapon of offence in his presence. The witness further deposed that the

accused was having illicit relations with Mst. Saida and despite being warned in Panchayat he did not mend his ways. On cross examination stated

that he belongs to Ahmedi Sect. Houses of Ali Khandey (brother-in-law of deceased) and Amin Naik (Brother of deceased) lie at a distance of

150 feet and 400 feet respectively. No house lies in between the place of occurrence and the houses of aforesaid persons. The witness stated that

he did not inform Amin Naik or Ali Khandey as he was frightened and it was dark in the night. Ali Khandey lives at a distance of 600 feet from his

house. The witness agreed that it was expected of him to report the matter to villagers in the morning of the following day but he did not do so even

after he returned from Shopian where he had gone for treatment.

The reason assigned for this by the witness is that it was too late to speak about the incident by then. However, he would have informed the

villagers even if Police would not have visited the village. At the time of occurrence, he found that the light was dim. Deceased had three sons. One

of them was a militant and he was killed in an encounter at Hazratbal Srinagar. Mst Saida stayed in the house of deceased for about 20 days after

his death and then left the village for some unknown place. He is not aware about arrest of Mst. Saida. He made the statement before the Police 4

days after the occurrence. Confronted with his statement recorded under Section 161 of Cr.P.C. the witness denied having told the Police that he

had seen the accused hitting the deceased with a danda. He also denied the statement to the extent that he had heard about murder of deceased on

the following day. He also denied the statement to the extent that it was a moonlit night and on reaching the spot he found the accused emerging

from behind a thorny bush. Thus, he contradicted his version recorded under Section 161 of Cr.P.C. The danda used as weapon of offence was

approximately 3 feet long. The witness further stated that at the time of assault on deceased he was standing across the gorge on a height lying on

left side of the accused, the distance between the place of occurrence and the position where he was standing being around 100 feet. He had not

seen the injuries on the body of deceased. The witness reiterated that he was eye witness to the occurrence and the Police theory that there was no

eye witness of occurrence was false.

On re-evaluation of the testimony of this witness it is abundantly clear that the witness has taken a ""U"" turn and deviated from the version disclosed

before Police under Section 161 Cr.P.C. wherein he had denied having seen the accused hitting the deceased and that he had heard about the

murder on the following day. The witness has been confronted with his statement recorded during investigation and he has denied having made

such statement. The Court, while evaluating the testimony of the witness, has to consider the effect of resiling of witness from his version disclosed

before police during investigation within the purview of Section 162(1) Cr.P.C. It is of great significance to notice that the statement of this witness

has been recorded on 30th October, 1990, i.e. the day following the alleged murder of deceased. Even Investigating Officer-Mohd. Yousuf Mir

has with reference to the statement of this witness, stated in unambiguous terms before the trial Court that there was no eye witness to the alleged

occurrence. Thus, the presence of PW-Mubarak Ahmed Dar as solitary eye witness to the alleged occurrence is excluded. Even on its intrinsic

value the testimony of PW-Mubarak Ahmed Dar before the trial court wherein he claimed to be eye witness the alleged occurrence, cannot be

believed. As per his own admission, the witness was standing on the ridge of a hill when he claimed to have seen the accused assaulting the

deceased on the ridge of another hill, the two being divided by a gorge as wide as 100 feet. He has admitted that it was late in the night in moonlit

night and the light was dim. It is unbelievable that the witness could have identified the accused from a distance of hundred feet in the dark night

and then kept the tragic incident close to his chest for four days and disclosed the facts only when asked by Police. In the given circumstances and

taking into account the fact that in his statement recorded immediately on the day following the murder of deceased the witness had denied having

seen the accused giving danda strikes to the deceased and had claimed that he had heard about murder of deceased in the morning when his

statement was recorded, his altered version before the trial Court implicating the accused has to be dismissed as a concoction. The fabrication of

false evidence has to be inferred in the light of confrontation of the witness with his statement recorded during investigation.

It is well settled that the testimony of solitary eye witness must be wholly reliable to base conviction of accused thereon. This proposition of law

has been elaborated in judgment reported in Jayaram Shiva Tagore and others, Vs. State of Maharashtra, . It was laid down that where the

prosecution case rests on sole testimony of an eye witness, same should be wholly reliable. The credibility of the witness should be tested with

reference to the quality of his evidence which must be above board, unblemished and beyond suspicion. It must inspire confidence of such a

degree that the court finds no hesitation in recording the conviction solely on his uncorroborated testimony. Tested on the touchstone of these well

established considerations, the testimony of PW-Mubarak Ahmed Dar is found to be highly unreliable, unnatural and concocted. Admittedly no

other witness has watched the occurrence. Even Abdul Qadeer Naik - the village Lambardar who lodged FIR in the case, has derived knowledge

about the occurrence from Amin Naik - the nephew of deceased who discovered the body of deceased lying in a Nallah. There being no eye

witness, the mode of proof by direct evidence embarked upon by prosecution fails to nail the accused.

Learned Trial Court has landed in error in placing reliance upon testimony of PW-Mubarak Ahmed Dar. Its view that the said witness had

explained the reasons for not informing the villagers about the occurrence does not appeal to reason. The Trial court has also used as

corroborative evidence the assertion of PW-Abdul Manan Naik to the effect that the accused Bashir Ahmed Wagay had disclosed before him that

Mubarak Ahmed Dar had seen him committing murder of the deceased. It is highly improbable that the accused would have made an extra judicial

confession before PW-Abdul Manan Naik and nominated Mubarak Ahmed Dar as an eye witness. We say so because such extra judicial

confession would not be coming forth from the mouth of the accused facing a serious charge of murder unless there was a relationship of trust and

confidence existing between the accused and PW-Abdul Manan. In absence of proof of a fiduciary relationship and there being not even an iota of

evidence on record to hold that PW-Abdul manan Naik was vested with some authority or exercised influence of a nature upon the accused to

instill confidence in him that he would be able to save him from the clutches of law, the assertion of PW-Abdul Manan Naik about such extra

judicial confession cannot be attached any weight. PW-Abdul Manan has not disclosed as to what impelled the accused to repose confidence in

him and in what manner he exercised influence or control over the accused. This assertion has to be out-rightly rejected and cannot be used as

corroborative proof.

Disclosure statement of accused and Recovery of weapon of offence

The second mode of proof adopted by prosecution to nail the accused is the recovery of danda at the instance of accused subsequent to his

Disclosure Statement. According to Medical Experts examined in the case the danda with pointed margins could act as a sharp weapon and cause

the incised wound. The injuries noticed on the person of deceased included an incised wound on left side of parietal region of his scalp besides

other head injuries on occipit and right side temporal region of scalp. Left parietal and temporal bones were found fractured. The brain tissue was

lacerated and protruding out. According to the Medical Experts the cause of death was lacerated brain tissue following head injuries. The

deceased died due to injuries received on head which were caused by a sharp weapon, such injury being sufficient to cause death. PW-Dr. Mohd.

Yousuf opined that the piece of wood pointed along the margins could act as a sharp weapon and cause an incised wound. It is, thus, a foregone

conclusion that the deceased died due to head injuries caused by a sharp weapon and the seized danda with pointed margins has been opined to

be the weapon of offence which could cause the injuries sustained by the deceased.

In order to establish a link between the recovered danda and the person of accused prosecution has relied upon a Disclosure Statement

attributed to accused which has been exhibited as Ex. PW-2/1 at the trial. PW-Mohd. Ayoub Dar, then posted as Constable at P/S D.H. Pora is

a witness to the disclosure memo of accused. According to him, the accused made a confessional statement in regard to the danda used as a

weapon of offence. The witness claimed that the accused gave information regarding concealment of danda under a heap of dried cow dung. The

witness has testified to the contents of disclosure memo marked Ex. PW-2/1 to which he is a signatory. This witness admittedly is not a witness to

the recovery of danda. The witness emphasized that SHO was not present in the compound of Police Station where the disclosure statement was

made by accused in presence of Ghulam Hassan and Sonnaullah besides himself. When confronted with the disclosure memo, the witness admitted

that there was no mention of the danda having been concealed under a heap of dried cow dung. Significantly enough the disclosure memo makes

mention of the danda being concealed under a bed. Thus the testimony of witness does not support the disclosure memo. PW-Sonnaullah Bhat,

the then investigating Head Constable too is a signatory to the disclosure memo. He testified to its contents. The witness claimed that the accused

was not taken to the place of recovery of danda the same day and he did not accompany the Police party to the place of recovery on the following

day. It appears that there is no love lost between these two witnesses in regard to the information attributed to accused with respect to the place of

concealment of the danda allegedly used as a weapon of offence. According to SHO-Mohd. Yousuf Mir, the accused had made disclosure

regarding concealment of the danda in his house beneath the bed which, according to him, was recovered vide recovery memo marked as Ex.

PW-7/3. PWs-Abdul Qadeer Naik, Abdul Manan and Mohd. Amin Naik are the witnesses to the recovery memo. None of these witnesses is a

witness to the disclosure memo. PW-Mohd. Amin Naik has not supported the recovery memo. According to him, nothing was seized in his

presence. PW-Abdul Manan Naik has supported the recovery memo. According to his version, a danda was recovered from a bed inside the

house of accused.

It is in cross-examination of this witness that the accused was arrested on the day following murder of deceased and at his instance the danda was

recovered. He hastened to add that he did not know when police recovered the danda. While commending upon the testimony of this witness

elsewhere in this judgment it has been found with reference to extra judicial confession of accused that the witness is unreliable. Therefore, keeping

this cross examination in view, the witness cannot be relied upon in regard to recovery of danda from the bed of accused. PW-Abdul Qadeer

Naik is the village Lambardar who has filed an FIR in the case. He is not an eye witness to the occurrence but expressed his suspicion about

complicity of accused in murder of deceased as according to him the accused was having illicit relations with the wife of deceased and he wanted

to eliminate the deceased. The witness has supported the disclosure memo bearing his signatures. However, he claimed that it was four days after

the occurrence that the Police brought the accused to the village and at the instance of accused the danda was recovered from his house. The

witness was confronted with his previous statement recorded during investigation wherein he had stated that Police had seized a danda in his

presence. The statement is dated 30th October, 1990. The witness did not support such statement. It is in the cross examination of this witness

that the danda was recovered from 3rd floor of house of accused and not from beneath the bed of accused situated in 2nd floor of his house as

recorded in Ex. PW-7/3. Therefore, it is manifestly clear that the credit of the witness has been badly shaken in regard to the material particulars

respecting recovery of weapon of offence. All the witnesses examined by prosecution in regard to disclosure statement attributed to accused and

recovery of danda have made contradictory statements and no reliance can be placed upon their testimonies. What makes the things worst is the

admission on the part of investigating officer-Mohd. Yousuf Mir that the Homicidal Report (Report-e-Marg) bearing Marg-B drawn up by him on

spot on 30th October, 1990 and bearing his signatures makes mention of danda and the said danda was round and not pointed or sharp edged.

Superadded to it is the fact that the recovery memo does not bear the signatures of accused. The cumulative effect of all these facts and

circumstances is that prosecution cannot be said to have discharged its burden of proving complicity of accused in the alleged occurrence through

this mode of proof.

We have very meticulously scanned through the evidence brought on record by prosecution and upon its reappraisal, we find that despite

proof of motive that the accused considered the deceased as obstacle in continuing with his illicit relationship with the wife of deceased raising

strong suspicion about complicity of accused in murder of deceased, prosecution has failed to bring on record substantive, cogent, reliable and

legally admissible evidence to hold the accused liable for the authorship of alleged crime. The findings arrived at by learned Sessions Judge are

perverse and the same cannot be supported. Conviction of accused has been recorded on evidence which is neither reliable nor inspires

confidence. This appears to be a case of shoddy investigation and what has transpired during trial is highly deplorable. It is in evidence that the

accused absconded during investigation, resurfaced in the village after sometime, lifted the wife and daughter of deceased and was finally napped

after a considerable time. The case diaries and the seized articles could not be produced by the public prosecutor before the Court during trial as

the same were found missing. This is a matter of concern and needs to be looked into for fixing the responsibility and bringing the delinquent

officials to book.

We accordingly set aside the judgment of conviction and order of sentence of life imprisonment and other sentences slapped upon the

accused-Bashir Ahmed Wagay, reject the reference for confirmation of sentence of life imprisonment and order acquittal of accused. The accused

be set at liberty forthwith unless he is wanted in some other case. Be he on bail, he need not surrender. The surety and personal recognizance

bonds, in such event, shall stand discharged.

A Copy of this judgment be sent to Chief Secretary for taking appropriate action against the officials responsible for misplacing of the seized

articles and CD Files. Record be remitted back to the trial Court. Appeal File/Confirmation proceedings be consigned to records. Disposed of.