UT of J & K v. Mohammad Aslam Ganai & Ors.

CORAM: HON’BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE HON’BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE ORDER 30.08.2022 Chowdhary-J:

1. Shown off minute details, factual matrix of the case is that one Neelofar had gone missing from the house of her maternal grandmother, on

21.02.2005. A missing report was lodged by one Mohammad Aslam Ganie at the local Police Station on 26.02.2005, Vide FIR No. 14/2005 a case was registered at Police Station Nowgam for the commission of offence punishable under section 364 RPC. The dead body of the said missing girl Neelofar was recovered by Sumbal Police from river Jehlum on 12.03.2005. During the course of investigation, it was unfolded that the said Neelofar, who, after the divorce of her parents and second marriage of her mother, was putting up in the house of her uncle Mohammad Aslam Ganie at Soibugh Budgam and that she had a love affair with one Manzoor Ahmad, and both of them wanted to marry each other, but Mohammd Aslam Ganie and his relatives Mohammad Yasin Ganai, Mohammad Ashraf Ganai, Javaid Ahmad Ganai, & Firdous Ahmad Ganai and wife Gulshana and Nazir Ahmad wani and Mudasir Ahmad Bhat having been infuriated of the love affair of said Neelofar had beaten her and later she was killed and her dead body was grounded in river Jehlum. (1) CrlA (AD) No. 05/2021

2. After investigation, Police concluded that the said Neelofar had been abducted and killed by Mohammad Aslam Ganie, Mohammad Yaseen Ganie, and Gulshana, whereas Mohammad Ashraf Ganie, Javaid Ahmad Ganie, Firdous Ahmad Ganie, Nazir Ahmad wani, and Mudasir Ahmad Bhat, (hereinafter called accused/respondents) had abetted commission of these offences.

3. The accused persons were charge-sheeted for the commission of the

7. offences punishable U/Ss 302,364 and 109 RPC by Sessions Court Budgam, vide order dated 09.07.2005. The case, however, was transferred to District Srinagar, in view of re-organization of the administrative units of the State, where it was assigned to the Court of learned 4th Additional District & Sessions Judge, Srinagar. The prosecution had examined all the witnesses cited in the charge- sheet and the incriminating evidence was explained to the accused who were examined in terms of section 342 J & K CrPC who did not wish to enter upon their defence. The Trial Court vide judgment dated 04.07.2020 acquitted all the accused. Aggrieved of the acquittal of the accused, the Appellant-Union Territory of J & K preferred the instant appeal and moved an application seeking leave of the Court to institute the appeal before this Court. An application for condonation of delay of 406 days was also moved along with the appeal. The delay was condoned by this Court vide order dated

01.08.2022, and the matter was posted for consideration of the application for leave to file appeal. Heard learned counsel for both the sides and perused the record available on file. On consideration of the record, it has been found that the case entirely based on circumstantial evidence and some extra judicial confessions, had ended up in acquittal. The Trial Court has meticulously discussed, thrashed and marshalled the evidence brought on record by the prosecution, each and every aspect of the case has been discussed including statements made by the prosecution witnesses medical experts and investigation officer. (2) CrlA (AD) No. 05/2021

8. With regard to the extra judicial by the accused statements made by three of the witnesses namely Qayoom, Mushtaq and Hajira, during examination in the Court, were not forth-right in stating as to how, despite having come to know of the fact that the accused had killed deceased, they did not inform the Police. Most of the witnesses turned hostile including PW-Mehomooda, who happens to be mother of the deceased, and also PW-Manzoor Ahmad, with whom the deceased Neelofar was stated to have a love affair.

9. Since there was no witness who had seen the crime, the case was largely based on circumstantial evidence. The Court below has discussed each and every aspect of the circumstantial evidence brought on record and has rightly come to the conclusion that there were many missing links of the chain. It is trite in law that in view of the missing links of the chain of evidence, the case cannot be said to have been proved based on circumstantial evidence, and the accused were entitled to be given benefit of doubt.

10. In a case of circumstantial evidence the circumstance from which the conclusion of the guilt is to be drawn should be fully established and the so established facts should be consistent only with the hypothesis of the guilt of the accused i.e., to say they should not be explainable of any other hypothesis except that the accused is guilty; the circumstances should be of conclusive nature and tendency and 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 in all human probabilities, that the act must have been done by the accused person.

11. The learned counsel for the appellant has not been able to point out any of the evidence which has not been discussed by the Court below or has been wrongly appreciated and that based on the evidence an opinion can be formed with regard to the conviction of the accused.

12. In this view of the matter, for the aforesaid reasons where there is no merit in the appeal, we are of the considered opinion that the leave to file appeal cannot be granted as the same shall serve no purpose. The (3) CrlA (AD) No. 05/2021 application seeking leave of the Court to institute the acquittal appeal is, thus, dismissed, as a sequel thereto, acquittal appeal is also dismissed.

13. Trial Court record, along with a copy of this judgment be sent back to the Trial Court, if any. (M.A. CHOWDHARY) (ALI MOHAMMAD MAGREY) JUDGE JUDGE SRINAGAR 30.08.2022 Hilal Ahmad (4) CrlA (AD) No. 05/2021