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Judgment
This appeal is directed against the judgment dated 23.02.2013 passed by the Court of learned Sessions Judge, Srinagar, by virtue of which
accused Mohammad Altaf Hajam (appellant No.3 herein) has been convicted for commission offences punishable under Section 316 read with
Section 34 and 120-B RPC and sentenced to rigorous imprisonment of 10 years with fine of Rs.20,000, in default of payment of fine to undergo
further imprisonment of 6 months. He has also been convicted under Section 304-II/34 RPC and sentenced to the period already undergone with
fine of Rs.30,000, in default of payment of fine to undergo further imprisonment for a period of 9 months. Ghulam Mohammad Hajam-Accused
No.2, has been acquitted. Accused No.3-Dr. Ghulam Nabi Bhat (appellant No.1 herein) has been convicted under Section 316 RPC read with
Section 34 and 120-B RPC and sentenced to undergo rigorous imprisonment of 10 years and also held liable to fine of Rs.30,000/, in default of
payment fine has to undergo further imprisonment of nine months. He has also been convicted under Section 304-II read with Section 34 RPC and
sentenced to undergo rigorous imprisonment of 10 years with fine of Rs.20,000/, in default of payment of fine has to undergo further imprisonment
for a period of 6 months. Both the sentences have been directed to run concurrently. Ab. Majeed Hajam-accused No.4, has been acquitted.
Reyaz Ahmad Dar-accused No.5, has been convicted under Section 120-B RPC and sentenced to the period already undergone by him with a
fine of Rs.50,000, in default of payment of fine has been directed to undergo simple imprisonment of one year. Mohammad Ashraf Bhat- accused
No.6 (appellant No.2 herein) has been convicted under Section 316 RPC read with Section 34 and 120-B RPC and sentenced to undergo
rigorous imprisonment of five years, has also been convicted under Section 304-II RPC read with Section 34 and 120-B RPC and sentenced to
five years rigorous imprisonment and to pay fine of Rs.20,000/, in default, to undergo further imprisonment of six months. Both the sentences have
been directed to run concurrently. Mst. Safia-accused No.7 has been convicted under Section 120-B RPC and sentenced to the period already
undergone and also to pay fine of Rs.20,000/, in default of payment of fine has been directed to undergo simple imprisonment of 6 months.
It has been directed that if fine is realized from the accused, same shall be paid to the family members of the deceased, Mst. Rafiqa.
Aggrieved by the judgment, only accused No.1, 3 and 6 have filed the instant appeal.
Registration of the case FIR No.10/2003 P/S Karan Nagar, on completion of investigation, resulted in filing charge sheet(challan) before the
Court of Chief Judicial Magistrate, Srinagar. The offences being punishable under Section 304-II, 316, 201, 34 and 120-B RPC, case being
exclusively triable by the Court of Sessions, therefore, has been committed to the Court of learned Sessions Judge, Srinagar.
Charge against the accused has been framed by the trial court on 01.04.2004 for the commission of said offences to which all the accused
pleaded not guilty and claimed to be tried. However, accused Mohammad Altaf Hajam (appellant No.2) while pleading not guilty, added that he
knew Mst. Rafiqa, on one day she had met him in Lal Chowk, they had gone to other accused. Accused-Dr. Ghulam Nabi conducted medical
check-up which revealed that Mst. Rafiqa was pregnant. Then has stated that he has no knowledge and has not committed any offence. Accused
Reyaz Ahmad while pleading not guilty, however, added that he was driving a Maruti vehicle, one day accused Mohammad Altaf told him that a
dead body is tobe taken to Sadder hospital (SMHS). At about 8.30 PM, they carried the dead body to Sadder hospital, where it was kept, he
does not know. 2 to 3 persons were also accompanying them who were not known to him.
Factual background:
(I) As per final report filed under Section 173 Cr. P. C, Chief Medical Officer, SMHS Hospital, Srinagar, on 21.02.2003 informed Police Station,
Karan Nagar, that an unclaimed dead body of a young woman had been lying near causality section of the said hospital. A party headed by the
SHO immediately rushed to the hospital and took dead body into the custody. From the dead body a small piece of paper with the name of a
clinic known as ""Jehlum Diagnostic Centre HSH Street"" was recovered. The dead body was sent for postmortem to Police Hospital, Srinagar.
(II) Inquest proceedings under Section 174 Cr. P. C were initiated by the Police Station, Karan Nagar. During the investigation, it was found that
the young lady had six to seven months old pregnancy.
(III) The dead body was identified as Mst. Rafiqa D/o Gh. Mohammad Sheikh R/o Sonwar. Statements of some witnesses were recorded.
(IV) With the recovery of the aforesaid chit from the dead body, investigation was carried. It was suspected that probably an illegal abortion had
been induced upon Mst. Rafiqa. The Jehlum Diagnostic Centre was raided and some objectionable materials was seized.
(V) Owner of Jehlum Diagnostic Centre, Dr. Ghulam Nabi Bhat and Mohammad Ashraf Bhat who was working in the centre, were arrested.
(VI) The seizure made from Jehlum Diagnostic Centre made it clear that illegal abortion was conducted upon Mst. Rafiqa in the said clinic.
(VII) When Mst. Rafiqa died, a criminal conspiracy was hatched pursuant to which the dead body was thrown outside SMHS hospital, Srinagar.
(VIII) The case was registered as FIR No.10/2003 for commission of offences punishable under Section 304, 312, 313, 314, 315, 316, 120-B,
201/34 RPC. On conclusion of investigation, charge sheet (challan) was presented.
From the perusal of the records and the prosecution case as set up, what is projected is that Mst. Rafiqa (deceased) and accused Mohammad
Altaf Hajam, had illicit relations, the deceased got impregnated. The accused Mohammad Altaf Hajam allegedly had once gone to the house of the
deceased, posing himself other than Mohammad Altaf Hajam, with a proposal for marriage with Mst. Rafiqa which remained as it is but in the
meantime, as it appears, that since the deceased had reached to the advanced stage of pregnancy, accused Mohammad Altaf Hajam and
deceased appear to have contacted accused Dr. Ghulam Nabi Bhat, owner of Jehlum Diagnostic Centre situated at Hari Singh High Street,
Srinagar, in the process of terminating the fetus, Mst. Rafiqa developed complicacies and was in a very critical condition, the deceased was shifted
to the residence of accused Mohammad Ashraf. Then what happened is that Mohammad Altaf Hajam while spotting accused Reyaz Ahmad Dar
at Lal Chowk driving a Maruti vehicle appear to have taken his assistance for shifting the dead body, as a result whereof, dead body had been
carried in the vehicle of accused Reyaz Ahmad Dar and thrown outside causality ward of SMHS hospital so as to give an impression that the
deceased has died mysteriously. In the process of terminating the fetus, the accused Dr. Ghulam Nabi Bhat allegedly had been assisted in the clinic
by Mohammad Ashraf, Mst. Safia, Abdul Majeed and Ghulam Mohammad Hajam. According to police, when Mst. Rafiqa died, under a planned
criminal conspiracy, her dead body was thrown outside causality ward of SMHS Hospital.
The case entirely rests on circumstantial evidence. For proving case against the accused on the basis of circumstantial evidence, chain of
circumstances must be complete. Since we have to appreciate the evidence so as to see as to whether on the touch stone of the test laid down for
recording conviction on the basis of circumstantial evidence charges are proved. It shall be quite relevant to quote paras 8 and 9 of the judgment
rendered by the Hon''ble Apex Court in the case of ""State of Goa v. Pandurang Mohite"", AIR 2009 SC 1066 :
We may also make a reference to a decision of this court in C. Chenga Reddy and Ors vs State of AP (1996) 10 SCC 193, wherein it has
been observed thus:
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully
proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left
in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally
inconsistent with the innocence......
In PadalaVeera Reddy v. State of A.P and Ors (AIR 1990 SC 79) it was laid down that when a case rests upon circumstantial evidence,such
evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else; and
(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of
the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In the present case, the circumstances as have been projected to connect the accused with the commission of offence are as under:
(a) Illicit relation of accused Mohammad Altaf Hajam with deceased Mst. Rafiqa;
(b) Proposal for marriage by the accused Mohammad Altaf Hajam, to the father of the deceased;
(c) Chit of the diagnostic centre;
(d) Consent form for abortion signed by the accused Mohammad Altaf Hajam and deceased Mst. Rafiqa, recovered from the personal search of
Dr. Ghulam Nabi, owner of Diagnostic Centre;
(e) DNA test;
(f) Carrying the dead body in the vehicle of Reyaz Ahmad and throwing it at SMHS Hospital, Srinagar;
(g) Statement of the accused Mohammad Altaf Hajam and Mohammad Ashraf Bhat given at the stage of framing of the charge while pleading not
guilty, as referred to above.
To analyze the above circumstances one by one, it has to be noticed as to what evidence has been brought on record in support thereof.
The testimony of the witnesses, as produced, nowhere reveal that accused Mohammad Altaf Hajam and deceased had any living relationship.
PW Farida Bano (sister of the deceased) had qualified in her statement that she has never seen Altaf and Rafiqa together. Rafiqa was in good
conditionand she would never feel about pregnancy nor she disclosed it to her.
PW Mst. Farida Bano has further stated that accused Mohammad Altaf Hajam had come to their house but posed himself to be cousin of
Altaf and proposed for Rafiqa which proposal was readily accepted but he was asked to send parents for the same to which he said that parents
do not approve of the proposal. She has further stated that she does not know whether Rafiqa wanted to marry Altaf or not. She (witness) as well
as her sister Rafiqa (deceased) were working in Home Guard as Volunteers. Altaf was also working there. She and Rafiqa were attending their
duties separately, however, Altaf used to be in the shift of Rafiqa.
PW Ghulam Mohammad Sheikh (father of the deceased) has stated that Rafiqa had never informed them anything about Altaf and he knows
nothing about their relationship. Rafiqa had not told him anything about Altaf, further has qualified that he has no knowledge about the affairs of
Altaf and Rafiqa. He never noticed symptoms in Rafiqa being pregnant
PW Ghulam Mohammad Sheikh (father of the deceased) has also stated that he(witness) is working as Follower in Police Department. His
two daughters, Farida and Rafiqa (deceased) were working as Volunteers in the Police Department. Accused Altaf was also working with them as
a Volunteer. Altaf had come to their house and posed himself to be the brother of Altaf Hajam and proposed Rafiqa for Altaf. Altaf was not
known to him till then. He was told to get consent of his home people to which he replied that father of Altaf is dead and brother and mother are
not ready for the relation.
These two witnesses, father and sister of the deceased, have nowhere stated that the accused Altaf Hajam and the deceased were having any
living relationship except that at times accused Altaf used to discharge duties in the shifts along with the deceased. That in any manner does not
connect them in any type of illicit relationship.
Another link for connecting the accused Altaf for having illicit relationship with the deceased Rafiqa, as projected, is pregnancy of deceased
and termination thereof. This link has been attempted to be proved by referring to DNA test and the alleged consent form for termination of fetus
allegedly singed by both accused Altaf and deceased Rafiqa but same has not been proved.
PW Dr. Mohammad Maqbool Khan, has conducted postmortem of the dead body of Mst. Rafiqa. He has stated that during postmortem he
noticed that the uterus was full of contents, pieces of skull bones of the fetus came out while separating uterus from cervix leading to the conclusion
that the lady had been subjected to induced abortion. The skull bone pieces of the aborted fetus were preserved in a jar and handed over to ASI
Mohan Lal for DNA test.
PW Dr. Rouf Hussain Beigh has stated that pursuant to the orders of CMO, Srinagar, he took blood 5 ML sample of Mohammad Altaf
Hajam and this thumb impression. After collecting blood sample in culture tube, it was duly sealed with his ring impression on 19.03.2003 at 4
PM. The blood sample and other formalities were completed in presence of Dr. Misba, Medical Officer, Central jail, Srinagar, and Mohammad
Amin, Senior Technologist Central Jail, Srinagar. Thereafter duly sealed blood sample in culture tube was handed over to SHO, P/S Shaheed
Gunj. Contents of the handing over memo are correct, same is exhibited as WXPW-21/1.
PW Swanam Prakash Pani, who was posted as ASP at Shaheed Gunj Srinagar had investigated the case, has stated that a letter was
addressed to the Executive Magistrate in connection with conduct of DNA test,letter is exhibited as EXTP-34/5. Letter of CFSL, Kolkata dated
22.02.2003 bears his signature, is exhibited as EXTP-34/6. The form of blood samples taken of accused Mohammad Altaf Hajam and Ghulam
Mohammad Sheikh, father of the deceased, also bears his signature, same are exhibited as EXTP-34/7 and EXTP- 34/8.
Now an important question for proof of this link is as to what was the result of analyses from CFSL, Kolkata?
The samples for DNA test appear to have been sent to the Central Forensic Science Laboratory, Kolkata but the Director of the said
laboratory has send communication dated 26th March, 2003 to the Executive Magistrate 1st Class, Srinagar, who had sent the sample, wherein it
has been conveyed that the case cannot be accepted due to various reasons as mentioned therein, i.e.
(i) Certificate of authority,
(ii) Sample seal on wax,
(iii) Postmortem report (either original or attested),
(iv) forwarding note,
(v) certificate of authority, P. M.
(vi) report should be duly filled and attested by the forwarding authority,
(vii) duly preserved blood/tissue sample of the deceased are required for analyses.
What happened thereafter has not been brought on records nor same has been proved. In short, DNA test has not been conducted. DNA test
would have given an indication about paternity of the terminated fetus. Such link, as such, has been snapped.
Another link to connect the accused Mohammad Altaf Hajam of having illicit relationship and the consequent pregnancy is connected with the
consent form, photocopy of which has been alleged recovered from personal search of Dr. Gh. Nabi, accused, owner of Jehlum Diagnostic
Centre.
PW Swanam Prakash Pani (Investigating Officer) has stated that the consent form recovered being a Xerox copy was not sent to hand writing
expert for opinion. Xerox copy of the consent form available on the trial court record is shown to have been signed by accused Mohammad Altaf
Hajam and deceased Rafiqa. Said document has not been proved though it has been marked as ""SPP"" but the signatures on the said consent form
have not been stated by any witness to be of Mst. Rafiqa (deceased) or of accused Mohammad Altaf Hajam. The two consent forms, one signed
by deceased and another signed by accused Mohammad Altaf Hajam read as under:
We are willing for any operation/injection/I.V.P Procedure/Anesthesia or any other procedure to be carried out on our patient on our own risk &
responsibility & will not claim for any compensation, police or judicial or any consumer protection procedure.
The consent form is shown to be of Jehlum Ultrasound, X-Ray and E. C. G. Clinic, Hanuman Mandir Road, H. S. H. Street, Srinagar. This
could be a vital link but not proved. Even it is not stated by any witness as to what had happened to the original consent forms nor it is stated by
any witness that there was any original consent form, again a doubtful situation. If some form has been recovered from Jehlum Ultrasound, X-Ray
and E. C. G. Clinic, than what had happened to the original consent form, why Dr. Gh. Nabi, owner of would Jehlum Ultrasound, X-Ray and E.
C. G. Clinic would retain photocopy, normally he would retain original form. This position has not been explained.
Accused Dr. Ghulam Nabi Baht is shown to be the owner of Jehlum Diagnostic Centre located at Hanuman Mandir road. The consent form
should have been of the same Diagnostic Centre. Again this position has remained to be clarified. So in any case, consent forms have not been
proved nor signatures affixed thereon have been proved, as such, in absence of proof, same have to be ignored. In short, the link of illicit
relationship between accused Mohammad Altaf Hajam and deceased Rafiqa is not proved, as such, it shall be very unsafe to hold that the fetus
terminated had the paternity of accused Mohammad Altaf Hajam, therefore, the circumstance as to who had impregnated the deceased and to
whom fetus belonged has remained in the region of suspicion.
PW Shamsheer Hussain has stated that five documents which include photocopy of the consent form of Jehlum Clinic, on which signatures of
two persons named as Mohammad Altaf Hajam and deceased Rafiqa, was recovered from the personal search of the accused Dr. Gh. Nabi. The
said personal search memo has been exhibited as EXPW-8.
PW Swanam Prakash Pani (Investigating Officer) has stated that the signature of the deceased on the photocopy of the consent form was
identified by PW Farida (sister of the deceased) but PW Farida in her testimony has nowhere stated that she identified signature of the deceased
on the consent form.
Another link to connect the accused Mohammad Altaf Hajam is that at the stage of framing of the charge, though he had pleaded not guilty but
at the same time he has added that Rafiqa was known to him, one day she met him in Lal Chowk, then they went to other accused, Dr. Ghulam
Nabi Bhat conducted her medical checkup wherefrom it surfaced that Rafiqa was pregnant but added that he has no knowledge and has not
committed any offence. If this circumstance is taken to be correct, but keeping in view the statement of PW Farida and PW Ghulam Mohammad
Sheikh that Farida, Rafiqa and accused Mohammad Altaf Hajam were working together as Volunteers in Home Guard, therefore, to say that
Rafiqa met him in Lal Chowk and then he accompanied her to a doctor, cannot be enough to establish that they had any illicit relationship, that too
in the background of the facts and circumstances as given in detail hereinabove.
Statement of the accused at the stage of framing of the charge in addition to pleading not guilty can be used for appreciating evidence led by
the prosecution to accept it or reject it. The Hon''ble Apex Court has held that inculpatory part of the statement can be taken aid of to lend
assurance to the evidence of the prosecution but if the prosecution evidence does not inspire confidence to sustain conviction, then inculpatory
statement cannot be made sole base for the conviction. Firstly, there is no such inculpatory statement, even if taken to be so, has to be read along
with statement of other witnesses. It shall be quite relevant to quote para 31 and 32 of the judgment rendered by the Hon''ble Apex Court in the
case of ""Mohan Singh v. Prem Singh and another"" reported in AIR 2002 SC 3582:
The statement of the accused under section 313 of Cr. P.C is not a substantive piece of evidence. It can be used for appreciating evidence led
by the prosecution to accept or reject it. It is however not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant
(supra) by this court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory
part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire
confidence to sustain the conviction of the accused, the inculpatory part of his statement under section 313 Cr. P.C cannot be made the sole basis
of his conviction.
In the present case the exculpatory part of statement of the accused under section 313 Cr.P.C in which he stated that he was attacked by the
deceased and his associate, whereupon the villagers rushed for his help and inflicted injuries on the deceased cannot be outright rejected as false.
The inculpatory part of his statement under section 313 of Cr.P.C, therefore, to the extent of admission of his presence in the compound of Atma
Singh when the deceased was attacked, cannot form sole basis of his conviction.
Another link as projected is that the accused Mohammad Altaf Hajam had proposed his marriage with deceased Rafiqa which proposal was
put to the father of the deceased, namely, Ghulam Mohammad Sheikh, which fact is stated by PW Farida Bano as well as by PW Ghulam
Mohammad Sheikh. Even if it is taken correct that accused Mohammad Altaf Hajam had proposed for marriage with Mst. Rafiqa, same, in
isolation of other position as taken note of hereinabove, cannot constitute a link for inferring that the accused Mohammad Altaf Hajam had illicit
relation with the deceased.
Whether accused Dr. Ghulam Nabi Bhat, owner of Jehlum Diagnostic Centre had subjected the deceased to induced abortion at his
Diagnostic Centre, same has been projected to be connecting on the basis of a chit alleged to have been recovered from the search of the dead
body on its recovery.
First of all what is the ""chit"", it is relevant to give clear description of the chit which is exhibited as EXPW-7/2. Chit is under the style ""Jehlum
Diagnostic Centre Hanuman Mandir Hari Singh High Street, Srinagar"". Same is written in English and Urdu. Then it is writtenthereon:-
Investigation is available:
K. U. B, I.V.P, I.V.U, O.C.G, R.G.U, M.CU, H.S.G, Ba Study, Ba Enema, Ba Follow through, T.Tube, Fistulogram and other Radiological
Studies. Investigations with Latest Technology.
On the chit there is neither signature nor name of any person. Such type of chit can be available anywhere and any one can keep such chits in
the pocket. On the basis of such a chit, in absence of any other cogent evidence, nothing can be said with certainty about commission of crime at
such centre. The position of chit is further made doubtful by the fact that according to PW Mohan Lal, ASI, chit was recovered from the pocket of
the deceased, name of the deceased was written on it and prescription was also hand written, when according to PW Swanam Prakash Pani
(Investigating Officer) the seized chit does not bear signatures, the chit is a printed material which could be manufactured.
The chit exhibited as EXPW-7/2 does not bear name of any patient, no name or prescription is written thereon, so a doubtful situation about
recovery of the chit.
During proceedings under Section 174 Cr. P. C, from the worn clothes of the deceased, ten items were recovered which include the chit in
English language under the name ""Jehlum Diagnostic Centre"". The recovery memo has been exhibited as EXPW-3/1. The chit figures at Serial
No.10, appears to have been added of late, therein.
Now again it is linked with other circumstance i.e. recovery of photocopy of consent forms which are already marked as mark ''SSP'' shown
to have been signed by the deceased Rafiqa and accused Mohammad Altaf Hajam but the said consent form, as already concluded, has neither
been proved nor signatures on the said form have been identified by any witness who would have been conversant with the signatures of accused
Mohammad Altaf Hajam and deceased, so again a suspicious position.
Another link i.e. when condition of deceased turned critical during the course of alleged termination of fetus, she was carried to the residence
of accused Mohammad Ashraf Bhat. Witnesses produced by the prosecution havenot stated anywhere that Mst. Rafiqa after her condition
became critical was shifted to the residence of accused Mohammad Ashraf. There is not even an iota of evidence in this regard available on the
record.
The another link is that the accused Reyaz Ahmad while pleading not guilty to the charge had also added that he was driving a Maruti car, on
one day Mohammad Altaf Hajam asked him that a dead body is to be carried to Sadder Hospital. At about 8.30 to quarter to 9 PM, they carried
the dead body to Sadder Hospital, then where the dead body was kept, he does not know. Some 2 to 3 persons were also with them who were
not known to him.
Again such a statement in the light of the law, as referred to above, can''t form sole base unless there is supporting evidence. It is not been
made clear by the prosecution witnesses, directly or indirectly, as to whether the dead body carried and thrown at Sadder Hospital was of the
deceased Rafiqa. The Maruti Car which was allegedly used for carrying the dead body was not seized. It was also not made clear on what date
dead body was carried. It is not such an admission which can be termed to be absolute so as to form link for connecting the accused with the
commission of offence.
It has to be made clear that the prosecution has to prove its case on its own strength only then above type of circumstance could be used for
lending assurance to the prosecution witnesses. After closure of prosecution evidence, accused Reyaz Ahmad was examined in terms of Section
342 Cr. P. C wherein he totally denied complicity in the crime. In absence of proof, it shall be unsafe to hold that the dead body was picked up
from the residence of accused Mohammad Ashraf and left at Sadder Hospital, Srinagar.
When case is totally hinging on circumstantial evidence then the test laid down by the Hon''ble Apex Court, as referred to above, has to be
followed. All links projected to connect the accused with the commission of offence have not been proved. Strict standard of proof has to be
followed for holding the accused guilty. The proof beyond reasonable doubt has no substitute. Heinous crimes committed at times remain
mysterious and actual culprits give slip to the law.
Learned trial court while addressing the concern of judicial conscience appears to have been swayed by the gruesome crime but in the process
has erred in appreciating the evidence. About illicit relation between accused Mohammad Altaf Hajam and deceased Rafiqa, learned trial court has
noticed that accused Mohammad Altaf Hajam met deceased at Lal Chowk, then they went to Dr. Ghulam Nabi where it surfaced that deceased
was pregnant. Then has observed that they had consulted accused No.3 (Dr. Ghulam Nabi) for termination of fetus at his clinic and as a
consequence of criminal conspiracy, accused No.3, Dr. Ghulam Nabi, agreed to the illegal termination of the fetus at his clinic Jehlum Diagnostic
Centre, Hari Singh High Street on the scheduled date after obtaining a consent from accused Altaf and Mst. Rafiqa (deceased), photocopy of the
consent form has been placed on record and as per prosecution story, the accused No.3 had caused to disappear the original consent form duly
singed by deceased Mst. Rafiqa and accused Altaf. Quite strange because the consent form is alleged to have been recovered from the personal
search of the accused Dr. Ghulam Nabi and not from the Diagnostic Centre. If the said accused had to destroy the evidence, then why he should
have retained photocopy of the consent form with him. No evidence is there to show that the accused Dr. Ghulam Nabi had destroyed the original
consent form. That apart, the photocopy of the consent form which is marked as Mark ?SSP'' has not been proved. The signatures on the said
consent form have not been proved, as discussed hereinabove. How the learned trial court has placed reliance on the same, is quite strange.
Neither any evidence is on record to prove that accused Dr. Ghulam Nabi was consulted for termination of fetus nor any evidence is available to
prove that Dr. Ghulam Nabiaccused agreed to the illegal termination of fetus at his Centre, so an imagination.
Learned trial court has then laid much stress on the provisions of Jammu and Kashmir Medical Termination of Pregnancy Act so as to show
that the advanced pregnancy could not be terminated. The termination of fetus by accused Dr. Ghulam Nabi has not been proved. Same has
remained in the region of suspicion. In case it would have been proved that it is accused Dr. Ghulam Nabi who had induced illegal abortion, then
question of applicability of Jammu and Kashmir Medical Termination of Pregnancy Act would come into play. When base is missing, to discuss the
provisions of Act was totally irrelevant.
Learned trial court has observed that it appears that the interested witnesses i.e. PW-1 and PW2, sister and father of the deceased, have been
influenced during the trial but that would not affect the prosecution case which otherwise rests on circumstantial evidence supported by the
statements of accused Altaf and Reyaz which are conclusive is nature. Such a conclusion is totally unwarranted. There is no scope to say that PWs
1 and 2 have been influenced. Even otherwise, the circumstantial evidence firstly has not been proved nor is complete there is no scope to
persuade the court to hold that the offence has been committed by the accused and none else. Regarding statement of accused Altaf and Reyaz
Ahmad recorded while pleading not guilty to the charges, stand discussed hereinabove i.e. such statements, firstly, are not conclusive regarding
commission of offence and secondly, can''t constitute a sole base for any conviction. In this behalf what the Hon''ble Supreme Court has held stand
referred to hereinabove.
Learned trial court has also opined that all the accused have joined hands to hide the crime and disposed of the dead body which they had
thrown in SMHS Hospital, which opinion is inconsistent with the testimony of the witnesses, as discussed in detail hereinabove.
True it is that a young unmarried lady has lost her life but from the statements of the witnesses and the circumstances as detailed hereinabove,
the case has remained in the region of suspicion. Unfortunate as it is, that a vital link which would have exposed the whole crime was DNA test,
which, for the reasons best known to the prosecution, has not been proved at all. Though process had been initiated, blood samples of both
accused Altaf and that of father of the deceased were taken, the skull bones of the terminated fetus were preserved, the samples were sent to
CFSL, Kolkata but when that laboratory returned the case for making up certain deficiencies, what happened thereafter has not been brought to
the notice of the Court, therefore, paternity of the terminated fetus has remained to be proved, in our view, such a vital link stand snapped.
Another vital link was signature of accused Altaf and that of deceased on the consent form for termination of fetus. Signatures on the consent
form have not been identified by any one, so have remained to be proved.
The whole prosecution case is shrouded in mystery, confusion worst confounded, chain of links totally broken, therefore, on such type of
circumstantial evidence, we are not persuaded to hold that the accused are guilty. Learned trial court has wrongly drawn the conclusion de heros
the available evidence. In our view, evidence has been totally mis-appreciated. Total doubtful position of the prosecution case, as narrated
hereinabove, inspires confidence that the guilt against the accused is not proved. Thus the judgment passed by the trial court is unsustainable. For
the above stated doubtful situation, to hold the accused guilty is not warranted.
Appeal succeeds. Judgment impugned is set aside. Accused are entitled to benefit of doubt so are acquitted. Accused-appellants who are at
large on bail are discharged of their bail bonds and surety bonds.
Trial court record along with copy of the judgment be sent back to the trial court.