State of J. and K. vs Mohammad Amin and Another

Bhawani Singh, C.J.—This appeal is directed against the judgment of Sessions Judge, Bhadarwah in File No. 2/Session of 1978 dated 10-

3-1980 for conviction of accused u/s 302/201, RPC, since trial Court convicted and sentenced them u/s 304-A and sentenced them to undergoing

rigorous imprisonment for two years and fine of Rs. 500/- each, giving them benefit of the period spent by them in judicial lock-up.

Briefly, the prosecution case is that Mst. Nagina (deceased) was married to Mohd. Amin (accused) and Mst. Panjabu is the mother of the.

deceased, while Mst. Sakinais the mother-in-law. Deceased was brought up by Gani Khanday, since he married Panjabu after the death of her

previous husband and she married Gani Khanday brother of the deceased husband. The couple had a child. On April 9,1978, she died. Gani

Khanday and his wife came to the house of the accused, inspected the dead body and found some violent mark. The body was buried. Matter

was reported to the police on 12-4-1978 and investigation started.

On the report of police and with the help of Executive Magistrate, Bhadarwah, the body was taken out of the grave, subjected to post-mortem

examination and buried again. Ultimately, the accused was prosecuted and in support of the allegation, number of witnesses were examined by the

prosecution. Accused denied the offence and produced some witnesses in defence also. Ultimately, the trial ended in the aforesaid conviction and

sentence of the accused, hence this Appeal.

Question for determination is whether the accused have committed the crime. If so, what. According to the prosecution, Prithvi Raj (P.W. 6) is

the eye-witness to the occurrence. This witness states that on April 9,1978, he was in his own land in village Chayan with his animals and goats. In

the evening, he found his sheep missing and in search of the same, he went towards the house of the accused and found them beating the deceased

with kicks and fists. Accused Mohd. Amin caught the deceased by hair and dragged her into the room followed by the other accused. He got his

sheep and went home. Next morning at the Tea Stall of Kotwal Diya Krishen there, Gani Khanday and Nasur Din told him that deceased had

died; upon which he told them to report the matter to the police. In cross-examination, he states that he did not tell any one about this beating

including the Panchayat or the police. His statement was recorded 8/9 days after the incident. During this time, he was posted as Junior Clerk in

the Sessions Court. He did not remember whether he had accompanied Gani Khanday while lodging the report. The Police Station was at a

distance of one Jareeb from the District Court. He had 23/24 year service as a Judicial Clerk. On April 9,1978, he was in the land with his wife

and children, being Sunday. They were breaking the land from 1972 though it belonged to Government being Shamilat Deh, but registered in his

name. House of accused is a solitary house, since other houses are located at distance from here. It is situated in a jungle. Diya Krishen was his

brother. It is difficult to depend on the statement of this witness for number of reasons. He is a Judicial Clerk with 23/24 year service serving at a

Jareeb distance from the Police Station, but states that he did not remember whether he had gone to the Police Station to lodge the report, though

Gani Khanday says that this witness had accompanied him upto the Police Station. He states that he saw the occurrence and found the accused

beating the deceased with kicks and fists, which is belied by the medical report. The house of accused is located at a distance from the place

where he was working along with his wife and children. They are not witness in this case, nor he stated that he narrated this occurrence to his wife

and children after joining them, which conduct is absolutely unreasonable and uncommon. Further, he admits that he did not narrate this occurrence

to any one else including the police and the Panchayat. This is enough to discard the version given by him. With this background, the trial Court has

relied upon this witness unnecessarily, unreasonably and without proper justification.

Having discarded the version of the sole eye-witness to the occurrence, we are left with circumstantial evidence on' which prosecution intends to

survive. Here, it has to prove the chain of circumstances from the beginning to the end to establish that the crime was committed by none other than

the accused. By now there are catena of cases decided by Supreme Court and High Courts laying down guidelines for dealing with the case based

on circumstantial evidence. Some of these decisions are: Kishore Chand Vs. State of Himachal Pradesh, ; Kansa Behera Vs. State of Orissa, ;

Sharad Birdhichand Sarda Vs. State of Maharashtra, ; Prem Thakur Vs. State of Punjab, ; Hanumant Vs. The State of Madhya Pradesh, ; Laxmi

Raj Shetty and Another Vs. State of Tamil Nadu, and Attar Singh v. State of H.P. ILR 1989 HP 875. We make mention of two decisions of

Apex Court here below.

In Prem Thakur Vs. State of Punjab, , Chief Justice Y.V. Chandrachud while speaking for the Court observed in para 11 :

The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances

must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he-is charged. That

is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt.

Again in para 152 of Sharad Birdhichand Sarda Vs. State of Maharashtra, , it is observed that:

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be

fully established :

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated

that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between

'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra,

where the following observations were made :

certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance

between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions'.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on

any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude very possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.

Keeping these principles in mind, we advert to the case in hand. Allegation is that accused used to beat the deceased. To sustain it, prosecution

depends on Malik Abdul Rashid before whom application was produced by Ghani Khanday for intervention alleging beatings of deceased by the

accused and her running away from in-laws house and her restoration to the house of in-laws seeking direction to the accused not to beat the

deceased. There is serious-doubt about this evidence. This appears to be a creation, otherwise it should have come in the investigation at the first

instance. Simply because Abdul Rashid Malik was Chairman of Panchayati Adalat and enjoyed high reputation that does not make inadmissible

and undependable document admissible and dependable. Had it some genuineness, Rashid Malik ought to have processed it properly calling the

parties, ascertaining the facts and deciding the same in a proper manner. There is hardly any substance in this kind of evidence and deserves to be

rejected like the evidence of so-called Gram Sudhar Committee's Secretary, Diya Krishen Kotwal deposing about lodging of verbal report against

the accused. The statements of Gani Khanday, Mst. Panjabu, Nasur Din and Diyalu Kotwal are an afterthought if we take into consideration some

material facts of the case. It is admitted that deceased and accused were married 10 years back. They enjoyed good relations with each other for

some years, according to prosecution witnesses including the mother, Mst. Panjabu. Why the relations became strained, no reason has been

assigned by any of the witnesses. There is no allegation of demand for dowry. No allegation against her conduct or work. If this be so, the story of

strained relations cannot be believed. Take the other side of the matter. Evidence suggests that some times the deceased used to have fits and

would run away from home. She was ill around the day of occurrence. The accused and his father were also ill and were admitted to the hospital.

Father died and accused Mohd. Amin was taken into custody.

Contention that the death of deceased was kept secret from the parents since the persons sent by the accused simply stated that the deceased

was seriously sick and they (parents) could see her has no substance. Rather it demonstrates innocence. The accused did not want to put them to

shock over the death of the deceased and intention was to call them stating that the deceased was very sick. Thereafter, Gani Khanday and Mst.

Panjabu reached the place and the dead body was buried without protest, since they did not entertain any doubt about the death of the deceased,

otherwise if their version that the deceased used to be beaten and mal-treated by the accused and they were likely to kill her were true, they would

have raised hue and cry, protested against the burial and rushed to the Police Station to lodge the report against the accused. No report was

lodged for upto 12.-4-1978. The explanation that they were confused and were running under fever is hardly believable. Delay demonstrates that

they had accepted it to be a case of natural death. Lodging of report afterwards was an afterthought, so was the story of mal-treatment of

deceased by the accused. This apart, there is another fact which deserves to be noticed. Mst. Panjabu states that she found that the chest of the

deceased was yellow and blue and the dead body had a wound on the head above one ear. This fact was narrated by her to her husband after the

burial, on being asked by him. Her husband had gone to the graveyard where the deceased was taken for burial. Whereafter both of them went

home. Her statement/narration of injuries on the person of deceased stands belied by the medical report, which does not notice them on

examination. Doctor has categorically stated that externally, there was no abrasion, bruise or haernotomanor was evidence of fracture on scalp.

No external evidence of any external injury or fracture of any rib, lungs plural cavity was found. Gani Khanday (PW 8) also states that when they

started burying the deceased, he told them whatever was right should be done. Doctor has pointed out the injuries in the medical report, which he

noticed after subjecting the body to post-mortem examination, but after making a circular incision to open the scalp and the upper end of right ear.

Next, according to the prosecution, the deceased was killed with stone (Exhibit P-1). This stone was shown to the Doctor. No blood was

found on it when shown to him. That is why, it was not sent for chemical examination. The stone is flat on one side and uneven on the other with

many edges. Obviously, it could cause some kind of external injury on the affected part of the body of the deceased, but none was found on

external examination. Therefore, there is serious doubt about the use of the stone as alleged. Its recovery is not proved by prosecution witness

Feroz Din (PW 1) as not supported it, saying that he had not gone inside the room where the Police had gone to take it. Stone seized by the Police

is common. Similarly, star witness of the prosecution Gani Khanday (PW 8) also states that he did not know from where inside the room the stone

was brought, rather it was not weighed by the Police in his presence. Trial Court has not placed reliance on this recovery.

Perusal of the whole evidence of the prosecution demonstrates that witnesses have spared no pains in making exaggerations, telling lies, making

massive improvements, apart from giving contradictory statements on fundamental aspects of the case, thereby making the prosecution case

absolutely shaky, undependable and full of uncertainties. Version of eye-witness Prithvi Raj (PW. 6) deserves outright rejection for reasons

recorded above. Almost all the witnesses have not given trustworthy account of the matter. It is not only hazardous, but also dangerous to accept

their version to condemn the accused.

What emerges out of the aforesaid discussion is that prosecution has not been able to bring home the guilt against the accused on direct and

circumstantial evidence. Careful analysis of the evidence on record plainly demonstrates that accused are not connected with the crime beyond all

reasonable doubts. Whatever evidence has been brought on record, the same is absolutely weak, shaky, conflicting and biased. On this kind of

evidence, it is difficult to record finding of conviction.

Consequently, the State Appeal is dismissed, however, in exercise of our revisional jurisdiction in the light of the evidence in the case, the

conviction and sentence imposed upon the accused is hereby set aside. They are acquitted of the charge and set free, if in jail; otherwise their bail

bonds are terminated.