State of JK through AAG v. Gulzar Ahmad Ganai & Anr.

Hardukathal, a dead body of a lady named Ms. Haseeba is lying in the house of her husband Abdul Rashid Teeli, while the dead body of Abdul Rashid Teeli is lying in a nearby field.

2. Upon the information being received, FIR No. 11 of 2001 was registered under Sections 364 & 302 of RPC. The police arrived at the CRAA No. 17/2007 scene of occurrence and the dead body of Ms. Haseeba was seized alongwith cotton rope which was lying nearby the said dead body. From the house, two boxes and one attache were also seized and kept in safe custody. Thereafter, Head Constable went towards the place where the body of deceased Abdul Rashid Teeli was lying. The same was on the land belonging to one Qadir Shah. The police seized the dead body of deceased Abdul Rashid Teeli also and seizure memo pertaining to the dead body was prepared. A spot map was also prepared by the police and clay, soaked with blood at the place where the body of deceased Abdul Rashid Teeli was lying, was also seized.

3. The post mortem was conducted by PW’s 42 and 43. Thereafter bodies were handed over to legal heirs, alongwith apparel of deceased Abdul Rashid Teeli and Haseeba and the rope was also handed over.

4. The respondents Gulzar Ahmad Ganie and Naseer Ahmad Shah both the residents of same village were arrested on 7th March 2001 on the basis of suspicion. It is the case of the prosecution that during interrogation, the two respondents herein admitted that on 7th March 2001, they hatched criminal conspiracy to kill Abdul Rashid Teeli and his wife Haseeba to steal Rs. 42,000/- from their home. Pursuant to the conspiracy, they gave effect to the same, but they did not recover any money in the house and left empty handed after committing the alleged offence. During the course of investigation, a blood stained Axe was recovered from the respondent No. 1 and the seizure memo was prepared with regard to the same. Thereafter, at the instance of both the respondents herein, the weapon of offence being a knife, known in Kashmiri as “Sharakh”, was recovered from the vegetable field of Ghulam Mohd Mir and the same was also sealed. During investigation, a CRAA No. 17/2007 “Pheran” and “Pajama” which was blood stained and worn allegedly by the respondent no. 2 at the time of the commission of offence was also seized from his house. During investigation, the clothes rope, the empty cigarette pocket which were all blood stained alongwith the knife and axe and the finger impression of two accused persons were seized. In addition thereto, hairs were seized from the fists of the deceased Haseeba and they were resealed in the presence of the Magistrate PW37 and sent for analysis to the FSL.

5. The case is entirely pivoted on circumstantial evidence. The absence of eye witnesses or a witness to last scene together makes the task even more onerous for the prosecution. On its side, the prosecution had 27 memorandum of both the respondents who allegedly confessed to the crime, the motive being the theft of Rs. 42,000/- from the house of the deceased. Pursuant to the 27 memorandum of blood stained axe, a blood stained knife, “Pheran” and “Pajama” worn by the respondent No. 2 at the time of the incident which is blood stained was also seized.

6. None of the witnesses have stated anything which would go to prove a material fact or fact an issue against the appellants. Their statements are largely restricted to their observation at the scene of crime and the hair that was purportedly found in the clutching hand of the deceased Haseeba. The FSL report in this case goes to reveal human blood in the artefacts but does not detect the RH factor, while the report of the doctor who performed the post mortem, states that the blood group of deceased was B-positive.

7. Learned counsel appearing for the appellant-UT has argued with great vehemence that the order passed by the learned Trial Court is perverse and that it has bent to a backwards giving benefit of doubt to CRAA No. 17/2007 the respondents herein while the prosecution was successful in proving the case beyond reasonable doubt without any missing links in the chain of circumstances.

8. Learned counsel for the respondents on the other hand submits that the order passed by the learned court below is well reasoned. The learned Trial Court has elaborately considered the evidence on record, taking into consideration statements under Section 342 of respondents herein, where they have clearly stated that they were falsely implicated in this case and that there is no perversity in the order passed by the learned Trial Court and its findings are all based upon the record of the case, therefore, impugned order does not call for any interference.

9. The impugned order elaborately reproduces the evidence of the various witnesses which were recorded before the learned Trial Court. With regard to the hair that was found in the hands of the deceased, the learned Trial Court has referred to the statement of PW-Dilshada who was one of the witnesses who had seen the dead body of Haseeba lying in the room and states that she saw some hairs in the right hand fist of the deceased. She further states that neck was tied by a rope and there was a “Scaraf” also around her neck. She further states that she got disturbed at the scene of crime and two boys were sent in search of Ab. Rashid who discovered his body in a field where he lay dead. She does not know the accused who were present in the court. In the course of cross examination, the witness says that she cannot say as to which hand of the deceased Haseeba, the witness found the strains of hair. The witness was confronted with the statement recorded under Section 161 Cr.P.C, which does not contain the version that she saw hairs in the fists of deceased Haseeba as stated by her before the Trial Court. The learned CRAA No. 17/2007 Trial Court gave its finding with regard to the hair in page 32 of the Trial Court order. The learned Trial Court has considered the hair strands allegedly found in the fist of Haseeba and that the hairs were seized from the left and right fists and then they were compared with the hairs of the two accused. The same were found to be similar as per scientific report. Thereafter, the Trial Court observed that there is definitely no evidence worth believable with regard to the seizure of hair strain from the closed fists of the deceased Haseeba.

10. The reason why the learned Trial Court has arrived at this finding is on account of the contradictory Dilshada’s statement viz-a-viz in her 161 statement given to the police and also the statement of witness Yaqoob who is a constable, who categorically states that the hairs found in the one fist of deceased Haseeba were that of a women most probably because of their length and not of a man. Besides this, the FSL report only says that the hair strands taken from the hands of Haseeba are similar to that of the respondents, there is no opinion that it is the same hair. Importantly, the learned Trial Court also recorded the fact that seizure memo of the dead body of the deceased Haseeba which is exhibited as EXPW 3/2 does not mention that there were any hair strands in her fist. Therefore, the learned Trial Court arrives the opinion that the separate seizure memos EXPW32 and EXPW 48/1 they appear to be concocted.

11. As regards the seizure memo of the blood stained Axe and the knife, the same was put to the respondents while recording the statements under Section 342. They have stated that they were falsely implicated in this case. They further state that the police had asked for an Axe from the respondent No. 1 and he gave them an Axe which was not CRAA No. 17/2007 blood stained at the time when he handed it over to the police. This assumes relevance as the blood group of deceased has been determined as B-Positive but the RH factor of the blood on the Axe and Knife could not be determined. This is seen in the observation of the learned Trail Court in page 31 of the judgment, where it held that so far as recovery of the blood stained clothes and weapon is concerned, the contention of the defence counsel that the experts of FSL ought to have compared the RH factor and the blood group of the deceased with these articles, but the same has not been done. Therefore, it cannot be said with certainty that the blood that was found on the artifacts of this case were that of the deceased.

12. Learned counsel appearing for the appellant-Union Territory has argued that the motive has been established. However, the prosecution does not adduce any evidence in order to establish as to how the respondents had knowledge with regard to sale of the land by the deceased Ab. Rashid Teeli to PW-Ghulam Mohi-din Bhat, who was examined as witness to the prosecution and who says that he had purchased the land belonging to the deceased Ab. Rashid Teeli which measured 1 kanal and 13 marlas 25 days prior to his death upon consideration of payment of Rs. 41,500/-. He further states that he paid the deceased in installments and the last installment of Rs 5,000/- was paid to the brother-in-law of the deceased whose name is Gul Bhat. This witness does not say that he ever had an occasion to meet the respondents herein or inform them about the same and the consideration amount. In absence of such an evidence on record, the contention of the prosecution that the motive for the murder was the theft of Rs. 42,000/- from the house of the deceased stands belied on account of absence of CRAA No. 17/2007 evidence to show that the respondents had knowledge about the sale and the consideration money having been paid to Ab. Rashid Teeli.

13. In all, we are of the opinion that the order passed by the learned court below is just and reasonable and based upon the record of the case and the inference drawn upon the evidence adduced before the Trial Court is also reasonable and cannot said to be perverse.

14. Under the circumstances, we see no reason to interfere with the order passed by the learned Trial Court.

15. In view of what has been stated hereinabove, the appeal is dismissed. (JAVED IQBAL WANI) (ATUL SREEDHARAN) JUDGE JUDGE SRINAGAR: 16.11.2023 ARIF CRAA No. 17/2007