Mohd. Hussain v. State of J&K

Judgment

1. The appellant has been convicted for the commission of offence under Section 302 RPC vide judgment dated 01.01.2010 and has been sentenced to undergo imprisonment for life along with fine of Rs. 10,000/- vide order dated 06.01.2010, passed by the court of learned Additional Sessions Judge, Rajouri (hereinafter to be referred as the „Trial Court‟ for short) in charge- sheet titled “State of J&K Vs. Mohd. Hussain” arising out of FIR No. 90/2004 under Section 302/449 RPC registered with Police Station, Darhal.

2. Aggrieved of the judgment and order mentioned above, the appellant has come up with this appeal by urging that the prosecution case was based on the circumstantial evidence, and the circumstances which were alleged to be incriminating to the appellant have not been proved at all by the prosecution, therefore the appellant could not have been held guilty. It is contended by the 2 CRA No. 01/2010 appellant that none of the prosecution witnesses has proved the recovery of the alleged weapon of offence at the instance of the appellant, and the learned trial court has acted upon the hearsay evidence for convicting the appellant.

3. Mr. Sunil Sethi, learned senior counsel for the appellant has argued that the prosecution could not prove that the appellant made the disclosure statement in respect of the weapon of offence concealed by him, and the witnesses examined by the prosecution have deposed in respect of the factum of recovery of the weapon of an offence in different manner and in view of such discrepancies, no reliance could have been placed upon the disclosure statement allegedly made by the appellant and the consequent recovery of the weapon of offence. He has further argued that the wife of the appellant was killed by the militants and this fact has been brought on record by number of prosecution witnesses and the appellant too had furnished an explanation in his statement recorded under Section 342 Cr.P.C, that he was abducted by the militants and his wife was killed by them. He laid much stress that in view of the weak and incoherent evidence led by the prosecution, the appellant could not have been convicted by the learned trial court.

4. Per contra, Mr. P. D. Singh, learned Dy. AG appearing on behalf of the respondent has argued that the appellant had made an attempt to portray the murder of his wife by him, as a militancy related incident but he failed to prove the same and after investigation it was found that in fact, it was the appellant, who had killed his wife with whom he was having strained relationship, as he was demanding Rs. 50,000/- from her to compensate the girl with whom he was having illicit relationship. He has further argued that

6. 3 CRA No. 01/2010 it was the appellant who forced the deceased to come to his village at Leeran, when she was residing along with her children at Kheora, Rajouri and after calling her to Leeran, he committed the murder of the deceased and tried to portray the incident as an act of militants. He has also laid much stress that pursuant to the disclosure statement of the appellant, the weapon of offence and the shirtwere recovered from a place which was in immediate vicinity of his house and merely stating in his statement under Section 342 Cr.P.C that he was abducted by the militants and his wife was killed by them would not mean that he had discharged his onus of rebutting the cogent evidence led by the prosecution in respect of his guilt. Heard learned counsel for the parties and perused the record. Prosecution case: The case projected by the prosecution is that an information was received at Police Station, Darhal, on 13.11.2004 at 9.20 A.M. from a reliable source that some unidentified persons, in the intervening night of 12/13th of November 2004 entered the house of the appellant and killed his wife -Mst. Hameeda Begum, by slitting her throat and her body was lying on spot. On receipt of this information, FIR No. 90/2004 under Section 302/449 RPC was registered and investigation was entrusted to ASI Mohd. Majid Khan, who seized the dead body and got the post-mortem conducted on the body of the deceased. During investigation, he found that the appellant married Hameeda Begum in the year 1990 and while he was posted as constable in ITBP, he remained in jail for two to three years, in connection with militancy related incident. After his release in the year 1997, he was terminated from the service and he served for two to three months in an academy, but due to his wrong acts, he was thrown out of the academy and thereafter, he started 4 CRA No. 01/2010 the business of selling cattle and started residing at Leeran, whereas Hameeda Begum started residing at Kheora along with children. He also started teaching Arabic Language to the children of Ghulam Hussain. During that period, he took undue advantage of innocence of Ghulam Hussain and PW-19 Miss X and maintained the physical relations with her and promised to marry her. Miss X became pregnant. In the month of Sawan (July), Miss X along with her parents went to Dhok at Pir Marg. One night, the appellant came to Dera (residence) of Ghulam Hussain at Marg where the parents of Miss X told him that Miss X had conceived the child of the appellant, and that could not be kept as a secret. Either he should marry her or get her treated. Mohd. Hussain stated that he was going to Kashmir and would bring some medicine. After some days, Mohd. Hussain came from Kashmir and got the pregnancy of Miss X terminated by giving her some medicine. Not only the people of Dhok but the militants also came to know about the incident. One night, three militants came to the residence of Ghulam Hussain, and enquired about the pregnancy of Miss X and assaulted Miss X and her mother. Both got frightened and returned to Leeran. The deceased also came to know about that incident, due to which relations between the appellant and the deceased got strained. In the month of Assu, Ghulam Hussain came back to Leeran and tried to organize Panchayat and raised a demand that either he should marry her or pay Rs. 50,000/- as compensation to her for ruining her life. The appellant stated that either he would marry Miss X or pay Rs. 50,000/-. The appellant demanded Rs. 50,000/- from his wife so that he could pay the amount to Miss X or she should permit him in writing to solemnize marriage with Miss X. The deceased flatly refused to pay any amount to him and told him that she could give in writing thereby 5 CRA No. 01/2010 permitting him to solemnize marriage with Miss X but in presence of community members, so that the community should also know about his acts. The appellant did not accept that and determined to kill the deceased. On 07.11.2004 the appellant came to his wife at Kheora from Leeran. On

08.11.2004, he asked his wife to come to Leeran as he had to handle the crops, but she flatly refused as she had to perform her duty and stated that she would come after one or two days. That day only, he returned to Leeran and took one knife from the kitchen of the house at Kheora. On 10.11.2004 Mst. Hameeda Begum at the instance of the appellant went to Leeran and remained busy along with appellant for two days in handling the crop. In the intervening night of 12/13th of November 2004 at 10.30 in the night, appellant killed the deceased by slitting her throat and left the body of his wife there only and came to the house of Bashir. Thereafter, he went to the house of Shama, wife of Ghulam Hussain R/o Leeran and told them that he was abducted by the militants, and he had escaped from their custody. The appellant was arrested, and he made the disclosure in respect of concealment of knife and his shirt, pursuant to which recoveries were also affected. The Investigating Officer proved the offence under Section 302 RPC against the appellant and laid the` charge-sheet before the court of learned JMIC, Munsiff, Thanamandi on 02.03.2005, which was committed to the learned

Sessions Judge, Rajouri on the same date itself. The learned trial court vide its order dated 31.03.2005 charged the appellant for commission of an offence under Section 302 RPC and as the appellant did not plead guilty to the charge, the prosecution was directed to lead evidence.

7. The appellant has contended that the prosecution has miserably failed to prove the incriminating circumstances, as alleged by the prosecution in the 6 CRA No. 01/2010 chargesheet and there are material contradictions in the evidence led by the prosecution. As the appellant has come in appeal against the judgment of conviction, therefore evidence is required to be appreciated to find out as to whether the learned trial court has rightly arrived at the conclusion in respect of the guilt of the appellant or not. For that purpose, the relevant part of the evidence is required to be extracted. Prosecution Evidence:

8. PW-1 Abdul Rashid: In examination-in-chief stated that he knows the appellant and the deceased, who was the wife of appellant. She was killed. The Police had come on spot. Blood weighing 50 grams was seized by the Police. Shirt was also seized, and they were sealed with impression of ring. Thereafter, Police again came in the year 2005 on the spot and brought out one knife from the heap of dung from a place that was 15 yards away from the house. The knife was 15 inches in length. Prior to him, the Police along with the Chowkidar and the appellant had gone on spot and recovered the knife from there. He proved the seizure memo of the knife (EXPW-1/AR). He also proved the recovery memo of the shirt (EXPW-1/AR/A). He also identified the knife marked as “Mark A” in the court. The deceased was his niece. During cross-examination, he stated that the Police had come on spot in the year 2003 and had made the seizures as mentioned above. SHO, who hailed from Darhal, had come on spot. Sub-Inspector had affected the seizures. SHO had recovered the knife from the heap of dung at around

11.00 A.M. in the morning. The knife was sealed in the cloth and measured on spot. The Police had recovered a knife from dung one hour prior to his arrival. Knife was brought in his presence and his signature was obtained on spot. He and Chowkidar Talib Hussain only were present on spot and no 7 CRA No. 01/2010 civilian was present on spot. The knife recovered by the Police was not carrying any specific mark of identification, but it was stained with blood and cow dung.

9. PW 2-Abdul Aziz: In examination-in-chief, he stated that he knows the appellant and the deceased, who was wife of the appellant. The occurrence took place in the intervening night of 12/13.11.2004. He went on spot on

13.11.2004. Police was also there. Police had seized the blood-stained cement and seizure memo (EXPW-2) was prepared. He proved the same. During cross- examination he stated that Abdul Rashid was also present on spot.

11. PW 3-Mohd. Aslam: He proved the seizure memo (EXPW-3) in respect of seizure of clay comprising of cement from the room. PW 4-Mohd Shabir: He deposed in respect of seizure of 60 grams of clay. He admitted the contents of seizure memo (EXPW-3) as true. During cross- examination, he stated that the seizure was affected at 11-12 A.M. by ASI and clay was blood-stained, but in EXPW 3 it is not mentioned that it was blood stained.

12. PW-5 Mohd. Yaseen: In examination-in-chief, he stated that in the month of November 2004, he was posted at the Police Station, Dharal. The postmortem of the deceased was conducted on 13.11.2004 at Leeran. After the postmortem, the Medical Officer had produced the blood of the deceased to the Police which was seized, and seizure memo was prepared. He proved the seizure memo (EXPW-6/TH). He proved the memo of personal search (EXPW-5) of the appellant. During cross- examination, he expressed ignorance as to after how many days of the occurrence, personal search of the appellant was conducted. 8 CRA No. 01/2010

13. PW-6 Talib Hussain Constable: In examination-in-chief, he stated that during post-mortem, blood sample of the deceased Hameeda Begum was seized vide seizure (EXPW6-TH).

14. PW-7 Abdul Hussain: In examination-in-chief, he stated that he knows the appellant and the deceased. He proved the seizure memo of the clothes of the deceased (EXPW-8) after the post-mortem. After the postmortem, the body of the deceased was handed over to him for the purpose of last rites vide receipt (EXPW/7) which was signed by him. During cross- examination he stated he did not know as to how the deceased died and who killed her.

15. PW-8 Abdul Rashid: In examination-in-chief, he stated that during post- mortem, the blood-stained clothes of the deceased were seized by the Police vide seizure memo (EXPW-8). During cross-examination he stated that the appellant and the deceased were residing peacefully and there was no acrimony in their relationship. The children were also residing happily with them. Their relations were good. He had gone on spot on the day of occurrence and the witnesses as well as the children told him that the terrorists had killed the deceased and had abducted the appellant. His statement was recorded by the Police. Terrorists were after them for the pretty long time and were also threatening them.

16. PW-9 Khurshid Alam: In his examination-in-chief, he stated that the deceased was wife of the appellant and was working as a teacher. They were having four children. Earlier the appellant was serving in ITBP and due to some case, he remained in jail and thereafter was removed from the job. The appellant had constructed a house at Leeran after purchasing the land from him and the appellant used to reside in that house. On 12/13th of 9 CRA No. 01/2010 November 2004, in the morning he got a call that Hameeda Bano had been killed in her house at Leeran. He went there and found her dead body lying on the bed in the kitchen. Her throat had been slit. Prior to their arrival, someone had informed the Police, and the Police had come on spot. The appellant was arrested by the Police on 05.01.2005. He went to the Police Station to know about the appellant where the appellant disclosed that he had killed the deceased and could get the weapon recovered which was used by him. He proved the disclosure memo (EXPW-13/MH/A). Thereafter, Police accompanied the appellant to the spot and towards the eastern side of the house of the appellant from the heap of dung, one knife was recovered. He proved the recovery memo (EXPW-1/AR). Pursuant to the disclosure of the appellant, one shirt was recovered from Tandoor (Oven) lying in the veranda. He proved the recovery memo (EXPW-1- AR/A) of the shirt. Thereafter, he came to know that the appellant was having strained relationship with his wife as he was having illicit relationship with one girl, namely, Miss X (PW-19) and he had demanded Rs. 50,000/- from the deceased to resolve the issue by paying the same amount to Miss X. During cross-examination, he stated that the deceased was his niece and was residing at Kheora. The appellant made the disclosure statement on 5th between 8.30 to 9.00 A.M. He was accompanied by Master Muneer. The disclosure statement was written by the IO. The appellant had made the disclosure statement in Pahari Language. The Police had read the disclosure statement to him and thereafter he had signed the same. He did not know as to whether the Police had written about the commission of murder in the disclosure statement or not, but this is correct that commission of murder has not been mentioned in the disclosure 10 CRA No. 01/2010 statement. Besides him, Master Muneer and One Chowkidar Talib Hussain had also signed the disclosure statement. At the time of recovery, he was accompanied by Talib Hussain and Master Muneer. The recovery was affected between 11.00-12.000. A knife was recovered from the heap of dung after digging. The appellant had himself dug, and got the knife recovered. Knife was blood stained. Handle was stained with dung whereas the blade was blood stained. Police had sealed the knife. He was told by Mohd. Khaliq that someone had killed the deceased in her house. His statement was recorded on 30.11.2004. This is true that for the first time he had disclosed to the Police about the cause of murder on 30.11.2004, as he was not aware about the same prior to that. That day he had made the statement to the Police that Hameeda Bano was killed by a sharp-edged weapon, as he was not aware about the weapon of offence. He came to know about the weapon of offence only, when the appellant made the disclosure statement. He denied that death of Hameeda Bano was a militancy related incident.

17. PW-10 Talib Hussain: In examination-in-chief, he stated that he knows the appellant and the deceased. He had gone on spot. After the postmortem, body of the deceased was handed over to the legal heirs vide receipt (EXPW-7) signed by him. The weapon of offence i.e. knife was recovered in his presence and recovery memo (EXPW-1/AR) was prepared. He had signed the same as a marginalwitness. One shirt was also recovered. Seizure memo (EXPW/1/AR/A) was prepared. He had also signed the same. The Police had kept a ring having Mark-N and another ring marked E on his supardnama. He proved the supardnama (EXPW-11) in respect of ring mark „N‟. He also proved the supardnama (EXPW-TH) in respect of 11 CRA No. 01/2010 ring having mark of E. He produced both the rings in the court. He also identified a weapon/knife (Mark A) in the court. During cross-examination, he stated that the weapon of offence was recovered in the morning. Police had asked him to dig the heap of dung as the knife was lying there. On the asking of the Police, he dug the heap of dung. At that time, only Police officials were present, and the appellant was not present. Besides above, civilians Numberdar Abdul Rashid were present. Khurshid Ahmed and Master Muneer Hussain were not present at that time. It was month of Poh. There were 10-12 layers of heap of dung which was dug by him. The heap of dung was lying at distance of 10-20 feet from the house of the appellant. There were houses of Bashir, Ghulam Hussain, but they were not called on spot. Knife was recovered by the Police from the heap of dung. Knife was not having any specific mark of identification, and its handle was not broken. His signatures and signatures of Abdul Rashid were taken, when the documents were prepared. Shirt was also seized that day. At that time also, he and only Abdul Rashid, were present on spot. Recovery memo was signed by him. His signatures were taken at the residence of Abdul Rashid. On recovery memo of shirt also, his signatures were taken in the house of Abdul Rashid. Shirt was also recovered by the Police. The weapon of offence was taken in the newspaper whereas shirt was taken in hand by the Police.

18. PW-11 Nassar Hussain: In examination-in-chief, he stated that one ring was kept on supardnama of Chowkidar in his presence and one supardnama was prepared. He proved the same (EXPW/11). 12 CRA No. 01/2010

19. PW-12 Mushtaq: In his examination-in-chief, he stated that police had come on spot and had kept one ring on supardnama of Talib Hussain Chowkidar. He proved the supardnama.

20. PW-13 Muneer Hussain: In examination-in-chief, he stated that he knows the appellant. The deceased was a wife of the appellant. The incident is of the intervening night of 12/13th November 2004. He was residing at Kupwara. He was told by someone that the deceased had been killed in her house at Leeran. He also came on spot and the Police had arrived on spot prior to him. The dead body of the deceased was taken into custody by the Police and one seizure memo (EXPW-13/MH) of the dead body was prepared. The postmortem of the body of the deceased was conducted and thereafter body was handed over to Abdul Hussain vide receipt (EXPW-7). He was summoned in the Police Station on 30.11.2004 and his statement was recorded. Relations between the appellant and the deceased remained good for some time after the marriage but thereafter their relations got strained. The deceased many times complained to him that the conduct of the accused with the deceased was not good, and she also told him that the accused was harassing her all times, and she had also told him that she had heard that the accused was having relations with one girl, that was common talk of the village. The deceased was called by the accused from Kheora to Leeran, but the deceased did not go there after leaving children. Thereafter, the accused came to Kheora and asked her to come to Leeran. At the time of leaving, she handed over the children to him and told him that on insistence of her husband, she was going to Leeran. Thereafter, he heard the news of demise of the deceased. The appellant was earlier working in ITBP but he was terminated from services due to some case and was sent to Kot 13 CRA No. 01/2010 Bhalwal Jail. Thereafter, the appellant started business of selling cattle and taught children also for some time in the academy. On 05.01.2005 the appellant disclosed in the Police Station in respect of the concealing of weapon of offence i.e. knife in the heap of dung. Memo of disclosure (EXPW-13/MH/A) was prepared and was signed by him. He proved the same. After the disclosure, the Police went to the place of recovery of weapon, and he accompanied the Police. The appellant had got the weapon of offence i.e. knife recovered from the heap of dung, regarding which recovery memo (EXPW-1/AR) He proved the recovery memo of the blood- stained shirt (EXPW-1/AR/A). He also identified the weapon of offence (Mark-A) in the court. During cross-examination, he stated that his statement was recorded on 30.11.2004 and 05.01.2005. On 30.11.2004 his statement was recorded at Leeran. The other two statements were recorded in the Police Station, Dharal. The deceased was his niece. For the first time, he had made the statement in respect of the strained relationship between the appellant and the deceased on 30.11.2004. The Police used to come, and he also used to tell them about the strained relationship between the appellant and the deceased. Police recorded his statement only on

30.11.2004. His statement to that extent was not recorded for 17 days after the occurrence by the Police. He admitted that for the first time, he had made a statement in the court that the deceased told him that the appellant was harassing her all the times and was having relationship with one girl and while leaving she had handed the custody of children to him. Prior to that, he had not disclosed the same to anyone. He had not made any statement to the Police that the appellant had killed the deceased with the knife and for the first time he had made that statement in the court. The 14 CRA No. 01/2010 appellant had made disclosure about the weapon on 05.01.2005 at 9 A.M. He was not on duty but was on leave that day. At that time, he was accompanied by his brother Khurshid Alam and Abdul Rashid and others. The disclosure memo (EXPW-13/MH/A) was prepared at the place of recovery and was prepared by ASI-Abdul Majid and he had signed the same. No one else signed the disclosure memo. Besides the disclosure statement, two-three other documents were also prepared. The knife and the shirt were not recovered simultaneously. Heap of dung was lying 10-12 feet away from the house. The persons mentioned by him as above were not cited as witnesses despite that they were neighbours. Heap of dung was old. It was not dug out. It must be 1-2 months old. The recovery was affected at 3-4 P.M, when Police came on spot. Numberdar was not present. Knife was 13-14 inches in length. The handle of the knife was burnt from inside. Knife and the shirt were taken to Police Station in open condition, and he also accompanied the Police to the Police Station.

21. PW-15 Rani Begum: In examination-in-chief, she stated that she knows the appellant who was married with Hameeda Begum. Hameeda used to reside at Kheora. She was a teacher and was posted at school in Ujhan Rajouri. The appellant earlier was serving in ITBP. He remained in jail for three years and during that time, the deceased was turned out from her matrimonial home by her in laws and she resided with her. After his release from the jail, the appellant took one house on rent and started residing with the deceased. He started teaching the children at madrassa, where he misbehaved with one girl due to which he was thrown out and thereafter he went to Leeran and started business of cattle. The deceased and children started residing in Kheora, Rajouri. When the appellant was residing at 15 CRA No. 01/2010 Leeran, he developed relations with one Miss X. She got pregnant. During rainy season, the appellant purchased cattle and went to Peer Marg where Miss X was residing. The appellant made Miss X to consume some poisonous substance due to which the pregnancy was aborted. The deceased came to know about the incident only after the abortion. Due to that, there was quarrel between the appellant and the deceased and their relations got strained. The family members of Miss X insisted the appellant to marry Miss X, but the appellant started hiding himself. The appellant went to the house of the deceased at Rajouri and quarrelled with her and went to Leeran. Thereafter he called her on phone to come to Leeran, as such, the deceased went to Leeran. She remained alright for two days and thereafter was cut with knife. Someone informed her on phone that her daughter had been killed. She went there and found dead body of the deceased on the bed. The clothes were stained with blood and the floor and walls were also stained with blood. During cross-examination, she stated that her statement was recorded by the Police, and she had made the same statement. Her statement was recorded 5-7 days after the occurrence. She had told the Police that the appellant wanted to solemnize marriage with Miss X and because of that reason she was killed. She had told the Police that she was killed with knife. It has not been mentioned in her statement recorded under Section 161 Cr. P.C, but it is mentioned that a sharp-edged weapon was used. It has been wrongly mentioned in her statement recorded before the Police that someone had cut the throat, rather appellanthad cut her throat. When she saw the body of the deceased, she knew that the appellant had killed the deceased. 16 CRA No. 01/2010

22. PW-16 Shamim Akhter: In her examination-in-chief,she stated that the deceased was her younger sister. The appellant was earlier working in ITBP. She had heard that the appellant was involved in one TADA case and was sentenced to three years of imprisonment. After the imprisonment, he returned to his home in the 1997 and started residing as a tenant in Rajouri along with his wife and children. He started working in an academy as teacher of Arabic Language, where he committed some wrong with a student and was turned out. After he was removed from academy, he started residing at Leeran. The appellant started residing at Leeran on the pretext that he was involved in the business of cattle. Miss X and the appellant developed illicit relationship. In June 2004, she heard that the because of the illicit relationship, Miss X got pregnant. In July 2004, the appellant went to Kashmir along with cattle and brought one medicine. He made Miss X to consume that medicine due to which abortion took place. When all the people of the area and the terrorists came to know, they beat Miss X and her mother, whereafter Miss X disclosed that she was impregnated by the appellant. Miss X and her mother came back to Leeran that night only. The appellant otherwise also was not having good relationship with his wife and children and often used to beat them. In the month of August 2004, the appellant came to her sister‟s house near Degree College, Rajouri and asked her either to permit him to marry Miss X or pay Rs. 50,000/- so that he could compensate Miss X. It was disclosed by her sister to her mother, who in turn disclosed the same to her. Her mother told the appellant that they would sit together and talk in respect of that. On 07.11.2004, the appellant came to the deceased and asked her to come to Leeran to assist him in harvesting the crop. On 09.11.2004, he called her sister on phone and on 17 CRA No. 01/2010

10.11.2004, the deceased went all alone to Leeran. Occurrence took place in the night of 13.11.2004 and on 13.11.2004,her uncle Khursheed Alam informed her on phone that some incident had taken place at the house of Hameeda. She too went there and found the body of the deceased drenched in blood lying in the Kitchen. Her throat was slit. Police had already arrived there. He killed the deceased to get the benefit of militancy and employment of the deceased. During cross-examination, she stated that her statement was recorded on 30.11.2004. She could not make that statement on 30.11.2004, as her real sister had died. The delay in the statement was due to period of mourning and the people used to frequent their place. When her statement was recorded, period of mourning was continuing, but 12-13 days had already passed. During that period, no policemen came to her for recording her statement because she used to remain on duty. It was not mentioned in her statement recorded under Section 161 Cr. P.C. that the appellant had demanded Rs. 50,000/- in connection with Kaki and her mother had told her about the same. On 07.11.2004 the deceased was not asked by the appellant to come to Leeran in her presence. She had made her statement as she had heard the same. It is not mentioned in her statement that the appellant had killed the deceased for taking the benefit of employment of the deceased. This is correct that her uncle had told her that someone had killed the deceased.

23. PW-17 Heena Choudhary: In her examination-in-chief, she stated that the deceased was her mother. In the intervening night of 12/13 November 2004, she was at her residence along with her brother and sister. Her mother went to her house at Leeran on 10th of November 2024, as she was called by her (witness‟s) father. On 07.11.2004, the appellant had come to them 18 CRA No. 01/2010 and on 08.11.2004, he returned. After coming from school, they came to know that their mother had gone to her residence in village for harvesting the crop. The appellant had called her on phone and had threatened her that in case she did not come, he would kill her. On 13.11.2004, at 09.00 A.M. in the morning they came to know that the deceased had been killed by silting of the throat. They all went to Leeran and found that throat of her mother had been cut. Dead body was lying on bed in the kitchen. Her father was working in the ITBP, and there also he had killed someone for which he was sent to jail. Thereafter, he started working at academy where he attempted to rape one girl, and he was turned out. Thereafter, he committed some wrong at Shahdra Sharif also and was turned out from there also. Later, he used to send cattle to Kashmir and during that period he developed relationship with one Kaki. When the people came to know, he asked her mother to give Rs. 50,000/- or allow him to marry that girl. The appellant took the cattle towards Dhok and carried one medicine also. When that medicine was given to the girl, her pregnancy was aborted. The parents of the girl asked him to marry Miss X. Her mother went to the appellant to stop him, where she was killed. Her father had brought out one knife from the heap of dung and the Police had seized the same. She identified the same in the court. Watch of her mother was also recovered from his pocket. Identification memo (EXPW-HC) was prepared on spot. She proved the same. She identified the watch in the court. She proved the identification memo in respect of the knife (EXPW-HC/1). During her cross-examination, she stated that her statement was recorded on

30.11.2004. Till 30th Police met her 6-7 times. She had told the Police prior to 30.11.2004 also in respect of the statement which she has made above. 19 CRA No. 01/2010 When the dead body of the deceased was seen by her, she had come to know that the appellant had killed her mother because he used to quarrel with her. She had disclosed that to the Police also when the Police had come to her house. This is not correct that on the second day of occurrence they had got the information that someone had killed her mother, but they had suspicion as appellant used to threaten her mother. She told the Police that the appellant had threatened her mother on phone, but it is not mentioned in her statement. The killing of a person by the appellant while he was serving in the ITBP has not been mentioned in her statement recorded under Section 161 Cr. P.C. This is correct that she had heard from the people that abortion of Miss X took place as she had consumed a medicine taken from the appellant. She had made the statement to the Police that the appellant wanted to solemnize marriage with Kaki and wanted to obtain consent from his wife, but as she did not consent for the same, he killed her. The knife is of ordinary nature and usually found in every home. On 01.03.2005, knife was recovered from the heap of dung at around 12. Knife was not recovered from the heap in her presence. She identified the watch in the Police Station.

24. PW-18 Yasir Arafat: After recording preliminary satisfaction in respect of the witness, as he was minor, his statement was recorded, wherein he stated that the appellant and the deceased were his parents. He along with brother, sister and mother used to reside near Degree College, Rajouri and the father used to reside at Leeran. His father was serving in ITBP where he did some wrong and was jailed for three years. Thereafter, he started working in an academy as teacher, where he did wrong with one girl and was turned out from the school. Thereafter, he started dealing in cattle and used to visit 20 CRA No. 01/2010 Kashmir often. One girl Kaki was residing in the neighbourhood in Leeran whose real name was Miss X. He developed relations with her, and she got pregnant. Thereafter, the abortion took place. The father of the girl asked the appellant either to solemnize marriage with Miss X or compensate her. Thereafter, the appellant came to their house, consulted his mother and sought permission to solemnize marriage but the mother replied that Panchayat would be organised, and the decision of the Panchayat would be followed. He demanded Rs. 50,000/- from his mother to pay to Miss X but the mother refused due to which the quarrel took place between them. Thereafter, the appellant went to Leeran and on 07.11.2004 came to their home near Degree College and asked her that the crop and grass were to be harvested. On 08.11.2004, he returned. His father took clothes,and one knife was missing from their home, but the mother told them that it must be in the home. On 10.11.2004, she went to Leeran. In the intervening night of 12/13, she was killed. They got an information from the village, and they went there and found the dead body of the mother on the bed in the kitchen. Her throat was slit by knife. That night, only their father was present in the home, and he must have had cut her throat. During cross-examination, he stated that the Police came to residence of his maternal grandmother where they were residing. Heena Choudhary also resided with him. The appellant and the deceased used to quarrel, but he was not aware about the reason. Father used to come in the evening and then would quarrel.

25. PW-19 Miss X: In her examination-in-chief, she stated that she knows the appellant who is having his house and land at Leeran. Hameeda Bano was residing in Rajouri along with her children. The appellant used to reside at Leeran along with his cattle. The appellant often used to have meals in their 21 CRA No. 01/2010 home and teach her brothers as Molvi. During those days he committed rape upon her and threatened her that in case she disclosed to anyone, she would be killed. In the month of Jyesht-Ashad, she went to Dhok at Marg where the appellant gave her one tablet for abortion due to which abortion took place. When members of her family and villagers came to know about that, they came back to Leeran. Her uncles were told about the incident by her parents so that kacheri could be organised. Her uncles asked the appellant either to compensate the girl for ruining her life or decide. She expressed ignorance about compensation demanded by them. She also talked to Hameeda Bano. The appellant and Hameeda Bano were cutting grass and the other day she heard that throat of Hameeda had been slit. During cross-examination, she stated that she did not know as to who slit the throat of the deceased. In her statement recorded under Section 161 Cr. P.C. it is not mentioned that after raping her, the appellant threatened to kill her in case, she disclosed the incident to anyone. It is also not mentioned in her statement recorded under Section 161 Cr. P.C. that in the evening prior to killing of the deceased, she had seen the appellant and the deceased cutting the grass. Her statement was recorded on the second day after the occurrence and thereafter no further statement was recorded. A perusal of the record reveals that her statement was recorded on 02.12.2004. The militants had threatened her, the appellant and her mother as to why they had done that immoral act and thereafter she and her mother came back to Leeran. No community meeting was held in Leeran, and they had also not approached the Police for initiating any proceedings against the appellant.

26. PW-20 Boba: In her examination-in-chief, she stated that she knows theappellant and the deceased. Miss X was her daughter. The appellant was 22 CRA No. 01/2010 conversant with Arabic language and often used to come to their house. They had employed the appellant for teaching Arabic language to her daughter. He started raping her daughter. The appellant went to Kashmir along with cattle. Miss X started crying and told appellant that he had spoiled her life. The appellant threatened Miss X not to talk to anyone otherwise she would be killed. Miss X was pregnant. The appellant made her to consume some medicine, due to which abortion took place. Panchayat took place in the village. They talked to the father of the appellant that the appellant had defamed and humiliated them. His father asked her husband that they would talk and would either bear the responsibility of the girl or would compensate her. Neither the appellant nor his father talked to them and the appellant started abusing them. The appellant came with his wife to his home. She worked for two days in the fields along with the appellant and remained with him during night. In the morning, they found her throat slit. During cross-examination, she stated that her statement was recorded by the Police only once, after 8-9 days of the occurrence. It was not mentioned in her statement recorded under Section 161 Cr. P.C. that the appellant had forbidden her daughter from disclosing about the rape otherwise she would be killed. It is not mentioned in her statement recorded under Section 161 Cr. P.C. that the appellant had called the deceased to his home at Leeran. It is also not mentioned in her statement recorded under Section 161 Cr. P.C. that the deceased used to work with the appellant in the morning and reside with him in the night. The terrorists had threatened them and the appellant at Marg, but the appellant was not present there. They ran away from Marg. The appellant had come to their Dhok prior to 10 days of their running from Marg. The 23 CRA No. 01/2010 abortion took place 2-4 days before they escaped from the Marg. To save their honour and dignity, they did not inform the Police. After the abortion, her daughter had told her that the appellant had given her a medicine, but she had not told the same to Police.

27. PW-21 Mohd Alam: In his examination-in-chief, he stated that he knows the appellant, who resides in his neighbourhood. Ghulam Hussain was his nephew. Four years ago, the appellant used to cultivate the land and have meals in the house of Ghulam Hussain and used to impart religious teachings to his children. In the year of occurrence, he went to the Marg Dhok which was at a short distance to the Dhok of Ghulam Hussain in the Month of Sawan. The daughter of Ghulam Hussain delivered one girl child. The other day, the terrorists came to the Dera of Ghulam Hussain who had gone to Kashmir for getting ration. Terrorists enquired from the wife of Ghulam Hussain and his daughter Miss X about the illicit baby girl born to Miss X as she was not married. Miss X disclosed that the illegitimate girl child was an outcome of the wrong act committed with her by the appellant. The terrorists went away that day. The other day Ghulam Hussain returned, and he came to know about the incident. Miss X and her mother came back to Leeran. Ghulam Hussain was told about the incident by his wife and daughter. Thereafter Ghulam Hussain also came to Leeran. Ghulam Hussain conducted Panchayat with the appellant and demanded compensation for ruining the life of his daughter. He also knew Hameeda Bano who used to reside at Rajouri. In the months of Ramzan, Hameeda Bano had come to Leeran. Both husband and the wife worked during the day. The other day, he came to know that Hameeda Bano had been killed by someone. Police had come on spot. Doctor also had come on spot. He 24 CRA No. 01/2010 had also gone to Police Station, Darhal. Police produced one watch. He proved the identification memo (EXPW-HC) of the watch which was signed by him. During cross-examination, he stated that Hameeda Bano was not related to him. He also knows Munshi Rashid whose wife was killed by the militants in Village Mulat. The children of Mir Hussain and Misri were killed by the militants. For the first time he has made a statement that he had seen the appellant and the deceased cutting grass together in Leeran. In his statement recorded under Section 161 Cr. P.C. on

11.01.2005, it is not mentioned. Militants had threatened the appellant and family of Ghulam Hussain.

28. PW-22 Talib Hussain: In his examination-in-chief, he stated that he was in the Police Station, Dharal where Heena Choudhary identified one knife and stated that it belonged to them. She identified one watch which belonged to the deceased. He proved memos marked as EXPW-HC and EXPW-HC/1. He identified the watch and knife in the court.

29. PW-23 Ghulam Hussain: In his examination-in-chief, he stated that the appellantis his neighbour and Miss X is his daughter. Wife of the appellant used to reside at Kheora whereas the appellant used to reside at Leeran. The appellant used to have meals in his home. In return, the appellant used to teach Arabic Language to his children. The appellant had made illicit relations with his daughter. As per routine, they went to their Dhok at Marg. He went to Shopian along with cattle, whereas his wife in his absence went to his Dhok and asked the appellant whether he had raped her daughter as she was pregnant. She asked him as to why he did that wrong act. The appellant replied that he would give some medicine, and no one would come to know. He gave some medicine to his daughter for abortion 25 CRA No. 01/2010 due to which abortion took place. Thereafter, Kacheri was conducted with the appellant and his father. They asked the appellant either to marry his daughter or pay Rs. 50,000/- as compensation. The appellant got frightened, and he talked to his wife in respect of that. Quarrel took place between the appellant and his wife. The wife of the appellant had gone to Leeran, and he had seen her there. In the morning, they came to know that someone had killed Hameeda. He went on spot and found that her throat was slit. She was killed by the appellant because he had enmity with her due to his daughter. During cross-examination, he stated that his statement was recorded one month after the occurrence. In his statement recorded under Section 161 Cr. P.C. it is not mentioned that the deceased used to quarrel with the appellant and because of that reason the appellant killed her. The appellant had not given any medicine to his daughter in his presence due to which abortion took place, and in his presence, no illicit relationship was maintained by the appellant with his daughter. The statement made in respect of the community Panchayat and demand of Rs. 50,000/- is not mentioned in his statement recorded under Section 161 Cr. P.C. The Police used to meet him but till one month he did not make any statement to the Police.

30. PW-25 Mohd. Bashir: In his examination-in-chief, he stated that he knows the appellant and the deceased, who was wife of the appellant. In the morning, he came to know that the deceased had died, and he went on spot. He was taken by the appellant on the spot and shown body of the deceased after removing the cloth over the same. During those days, the deceased and their children were residing at Kheora, Rajouri. The appellant used to reside with the deceased and at Leeran also. The appellant and the deceased 26 CRA No. 01/2010 used to come to his home. Miss X had levelled allegations against the appellant that she was bearing child of the appellant. Miss X and her parents thereafter came back from Dhok Marg to Leeran. In the month of April, father of the appellant had told him that a Panchayat meeting was to be conducted in respect of the allegations levelled by Miss X against the appellant in respect of her pregnancy, but the Panchayat could not take place. The deceased had gone to Leeran and had stated that in case the allegations levelled against the appellant were found to be correct, she would compensate her. In the morning, the appellant had brought him only to see the body of the deceased. The appellant had come to his home at

11.00 in the night and had gone somewhere. During cross-examination, he stated that the relations between the appellant and the deceased were good and with consent, the deceased was residing in Kheora for the purpose of education of the children and the appellant was residing at Leeran for looking after the cattle. The Police and army had come on spot. The deceased was his relative. Because of the threats of the militants, the appellant used to remain elusive. His statement was recorded two and a half months after the occurrence on 09.02.2005. He cannot explain the delay caused in recording his statement and as to why he did not make statement to the Police even though he contacted the Police earlier also. For the first time he was making statement that the appellant had come to him at 11.00 in the night and had taken him to Leeran. The deceased had told the parents of Miss X that the allegations against the appellant were wrong and time and again appellant and the deceased had told the parents of Miss X that if the allegations were proved to be true, they would compensate. One day prior to the occurrence, the militants had come and had killed the deceased 27 CRA No. 01/2010 and abducted the appellant to kill him. He had made the similar statement before the Police but thereafter he was detained in the Police station and was beaten to make statement against the appellant that the appellant had removed his blood-stained clothes in his house. But he had refused to make such statement.

31. PW-28 Mohd. Sadiq Malik: In his examination-in-chief, he stated about the resealing of four packets on 22.11.2004. He further stated about issuance of authority letter in favour of Director, FSL regarding which photocopy of the letter dated 22.11.2004 having his signature and seal, was on record. It was marked as „MS‟. Thereafter, he resealed two more packets on

11.01.2005 and issued authority letter in favour of Director FSL. He proved EXPW-MS/1.

32. PW- 29 Dr. Kabir Azam, Medical Officer, SDH Darhal, examined the body of the deceased and noticed various injuries as mentioned in report EXPKA. /12.05.2009. He also conducted the post-mortem on the body of the deceased and proved the post-mortem report (EXPKA/1). He was shown the weapon of offence-knife 13” in length along with handle and he opined that cutthroat injury on the person of deceased can be caused by the said weapon. He proved the report (EXPKA/2). During cross-examination by defence, he stated that weapon of offence had been shown to me today. Sharp edged weapon like knife, sickle, axe etc. would cause the type of injuries mentioned above. He does not remember as to whether the weapon of offence had any foreign material with it. Had that been the case in respect of presence of foreign material on knife, he would have mentioned the same in his report. 28 CRA No. 01/2010 Appreciation of Evidence: (a) The whole case of the prosecution is based upon the circumstantial evidence. When the prosecution case rests on the circumstantial evidence and there is no eyewitness to the occurrence, then the prosecution is under obligation to prove the whole of the chain of circumstances pointing towards the guilt of the appellant and in the event, there is any snap in the chain of circumstances, then the appellant is entitled to benefit of doubt. More so, the circumstances should be conclusive in nature and must exclude every possible hypothesis except the one which is required to be proved to establish the commission of offence by the appellant. (b) In this context, it would be apt to take note of the judgment of the Hon‟ble the Supreme Court of India in case titled „Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein it has been observed as under: “153. 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 v. State of Maharashtra [(1973) 2 SCC] where the 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 every 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 29 CRA No. 01/2010 with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (emphasis added) (c) In „Shailendra Rajdev Pasvan v. State of Gujarat‟, (2020) 14 SCC 750, the Hon‟ble Supreme Court of Indiahas observed as under: the courts ought “17. It is well settled by now that in a case based on circumstantial evidence to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused.” (emphasis added) (d) So far as the present case is concerned, the prosecution was under obligation to prove the following incriminating circumstances: i. That the appellant had illicit relationship with Miss X and the appellant gave some medicine to Miss X for abortion, due to which abortion took place. ii. iii. iv. v. vi. That the family members of Miss X stressed upon the appellant to either marry Miss X or pay Rs. 50,000/- to them as compensation. That the deceased was having strained relationship with the appellant. That the appellant, who was residing at Leeran, called the deceased who was residing in Kheora, Rajouri to Leeran on the pretext of handling/managing the crop. That the appellant made disclosure statement about weapon of offence pursuant to which the weapon of offence was recovered. That the appellant had tried to portray the murder of the deceased-wife by him as if she was killed by militants. 30 CRA No. 01/2010 Now, we would examine as to whether the prosecution has succeeded in proving the above-mentioned circumstances beyond reasonable doubt to bring home the guilt of the appellant. (e) Circumstance No.1: Appellant had illicit relationship with Miss X and the appellant gave some medicine to Miss X for abortion, due to which abortion took place. So far as the first circumstance in respect of the appellant having illicit relationship with Miss X and the appellant having given some medicine to Miss X for abortion and resulting into abortion is concerned, there is direct evidence of PW Miss X, PW Boba and PW Ghulam Hussain. Miss X has stated that the appellant used to reside at Leeran along with his cattle and would often visit their home to take meals and teach her brothers as Molvi. She has categorically stated that during those days, he committed rape upon her. She has further stated that in the month of Jyesht-Ashad,she went to Dhok at Marg where the appellant gave her one tablet for abortion due to which abortion took place. She has further deposed that she, the appellant and her mother were threatened by the militants, as to why they had committed immoral act. After threats of militants, she and her mother came back to Leeran. PW Boba, who is mother of Miss X, has stated that the appellant was employed by them for teaching her daughter the Arabic language and he started raping her. She further stated that Miss X got pregnant and the appellant made her to consume some medicine due to which abortion took place. Abortion took place 2 to 3 days before they escaped from Marg. PW Ghulam Hussain who is father of Miss X has stated that the appellant used to teach his children Arabic language, and the 31 CRA No. 01/2010 appellant made illicit relations with his daughter. He further stated that his wife had asked the appellant why he had raped her daughter as she was pregnant to which the appellant had replied that he would give some medicine, and no one would come to know. He further stated that he gave some medicine to his daughter due to which abortion took place. From the statement of Miss X, duly corroborated by the statements of her parents, the circumstance No.1stands proved. (f) Circumstance No.2: Family members of Miss X stressed upon the appellant to either marry Miss X or pay Rs. 50,000/- to them as compensation. In respect of this circumstance,PW Boba has stated that Panchayat took place in the village, and they talked to the father of the appellant that the appellant had defamed and humiliated them. His father asked her husband that they would talk and would either bear the responsibility of the girl or would compensate her. Neither the appellant nor his father talked to them. Rather the appellant started abusing them. PW Ghulam Hussain who is father of Miss X has stated that after the abortion, Kacheri was conducted with the appellant and his father. They asked the appellant either to marry his daughter or pay Rs. 50,000/- as compensation. Miss X in her statement has stated that after the abortion took place, her uncles were told about the incident by her parents so that Kacheri could be organised. Her uncles asked the accused either to compensate the girl for ruining her life or take some decision, however, she expressed ignorance about the compensation demanded by them. PW Ghulam Hussain in his cross-examination has stated that he had not made any statement in respect of the community Panchayat and demand of Rs. 50,000/- in his statement recorded under 32 CRA No. 01/2010 Section 161 Cr. P.C. These three witnesses have made statements different to each other. Though the other witnesses i.e. PW Heena Choudhary, PW Yasin Arafat and PW Rani Begum i.e. mother of the deceased have deposed about the demand by the parents of Miss X to the appellant in respect of payment of Rs. 50,000/- or for marrying Miss X, but in view of the contradictory statements made by PW Miss X, PW Boba and PW Ghulam Hussain, the statements of PW Heena Choudhary, PW Yasin Arafat and PW Rani Begum are of no relevance. As such, it cannot be said that this circumstance has been proved beyond reasonable doubt. (g) Circumstance No.3: The deceased was having strained relationship with the appellant. PW Heena Choudhary has stated that the parents of Miss X asked appellant to marry Miss X, and her mother went to the appellant to stop him, where she was killed. She has further stated that her statement was recorded on

30.11.2004 and till her statement was recorded, she met the Police 6 to 7 times, and she had told the Police prior to 30.11.2004 also in respect of the statement which she made in the court that day. She further stated that when the dead body was seen by her, she came to know that the accused had killed her mother. She has stated that the appellant used to quarrel with the deceased. At the same time, she has stated that they suspected the involvement appellant as he used to threaten her mother, but it is not mentioned in her statement recorded by the Police. PW Yasir Arafat i.e. son of the appellant and the deceased stated that the appellant came to their house and sought permission from his mother to solemnize marriage, but the mother replied that the Panchayat would be organised, and the decision of the Panchayat would be followed. He further stated that the appellant 33 CRA No. 01/2010 demanded Rs. 50,000/- from his mother to pay the same to Miss X. His mother refused, due to which quarrel took place between them. However, during cross-examination, he stated that the appellant and the deceased used to quarrel, but he was not aware about the reason. PW Muneer Hussain has stated that the relations between the accused and the deceased remained good for some time after the marriage but thereafter their relations got strained and the deceased many times complained to him that the conduct of the accused with the deceased was not good. However, during cross- examination he stated that for the first time he had made the statement in respect of strained relations between the accused and the deceased on

30.11.2004 and statement to that extent was recorded by the Police after 17 days. He admitted that for the first time he had made a statement in the court that the deceased told him that the accused was harassing her all the time and was having relationship with one girl. PW Shamima, sister of the deceased, has stated that the appellant was not having good relations with his wife. All these witnesses are related witnesses. At the same time PW Heena Choudhary and PW Yasir Arafat are children of the appellant and, as such, it is not expected from the children to make false statement against their father. It was contended by the learned counsel for the appellant that they were under the influence of their maternal grandmother and maternal aunt, however, this Court does not find any substance in the same. Learned counsel for the appellant had strenuously submitted that PW Mohd. Bashir has stated that relationship between the accused and the deceased were good and with the consent, the deceased was residing in Kheora for the purpose of education of her children and the accused was residing at Leeran for looking after the cattle. Children, mother of the deceased and PW 34 CRA No. 01/2010 Shamim Akhter i.e. sister of the deceased are the best witnesses, who can depose about the relationship between the appellant and the deceased. Thus, from the statements made by these witnesses, it can be safely held that the prosecution has succeeded in proving this circumstance. (h) Circumstance No.4: Appellant, who was residing at Leeran, called the deceased who was residing inKheora, Rajouri to Leeran on the pretext of handling/managing the crop. The prosecution has relied upon PWs Heena Choudhary, Yasir Arafat, Munir Hussain and Rani Begumto prove this circumstance.PWHeena Choudhary, who is daughter of the appellant and the deceased, has stated that on 07.11.2004 the appellant had come to them at Kheora and on

08.11.2004 he returned. Her mother went to her house at Leeran on

10.11.2004, as she was called by the appellant. To same extent, PW Yasir Arafat has stated that on asking of the appellant, the deceased had gone to Leeran. PW Muneer Hussain has stated that the deceased was called by the accused from Kheora to Leeran, but she did not go there. But thereafter the accused came to Kheora and asked her to come to Leeran. At the time of leaving, she had handed over her children to him and told him that on the instance of her husband, she was going to Leeran. PW Rani Begum has stated that the accused went to the house of the deceased at Rajouri and quarrelled with her and thereafter went to Leeran. Thereafter he called her on phone and asked her to come to Leeran, as such, the deceased went to Leeran. Thus in light of the statements of the above-mentioned witnesses, it can be safely held that the prosecution has succeeded in proving this circumstance as well. 35 CRA No. 01/2010 (i) Circumstance No.5: Appellant made disclosure statement about weapon of offence pursuant to which the weapon of offence was recovered. This is the most important circumstance which has material bearing upon the fate of the prosecution case. A perusal of disclosure statement (Expw- 13/MH/A reveals that PW Khurshid Alam and PW Muneer Hussain have been cited as witnesses to the disclosure statement made by the accused in respect of weapon of offence i.e. knife whereas besides PWs Khurshid Alam and Munir Hussain, PW Talib Hussain (Chowkidar) and PW Abdul Rashid have been cited as witness to recovery memo (ExPW-1/AR/A). PW Muneer Hussain has stated that on 05.01.2005, the appellant disclosed in the Police Station in respect of the concealing of weapon of offence i.e. knife in the heap of dung. He further stated that the disclosure memo (EXPW-13/MH/A) was prepared and was signed by him. After the disclosure, the appellant went to the place of recovery and the weapon of offence was recovered by the Police and he accompanied the Police. The accused got the weapon of offence i.e. knife recovered from the heap of dung, regarding which recovery memo (EXPW-1/AR) was prepared. However, during cross-examination, he stated that the disclosure (EXPW- 13/MH/A) was prepared at the place of recovery and was prepared by ASI- Abdul Majid, and he had signed the same. PW Khurshid Alam has stated that on 05.01.2005, he went to the Police Station to know about the accused, where the accused disclosed that he had killed the deceased and could get the weapon recovered which was used by him. He proved the disclosure statement EXPW-13/MH/A. Thereafter, Police accompanied the accused to the spot and from the heap of dung one knife was recovered. He 36 CRA No. 01/2010 further stated that he was accompanied by Master Muneer and besides, him and Master Muneer, one chowkidar also signed the disclosure statement. He further stated that at the time of recovery he was accompanied by Talib Hussain and Master Muneer. The recovery was affected at 11.00-12.00. A knife was recovered from the heap of dung after digging. The accused had himself dug and got the knife recovered. So far as PW Abdul Rashid is concerned, he has stated that the Police brought one knife from the heap of dung. Prior to him, the Police along with Chowkidar and the appellant had gone on spot and recovered the knife from there. This shows that the recovery was affected prior to his arrival. PW Talib Hussain has stated that the weapon of offence i.e. knife was recovered in his presence and the recovery memo (EXPW-1/AR) was prepared. He had signed the same as a marginal witness. One shirt was also recovered. Seizure memo (EXPW/1/AR/A) was prepared. He had also signed the same. He further stated that the Police had asked him to dig the heap of dung as the knife was lying there and on the asking of the Police, he dug the dung. At that time, only Police officials were present, and the accused was not present. PW Muneer Hussain has stated that the disclosure memo was prepared at the place of recovery, which creates doubt in respect of the disclosure statement made by the appellant. Further, even if we reject the testimony of PW Abdul Rashid being witness to the recovery memo, as he himself stated that prior to him, the Police along with Chowkidar and the appellant had gone on spot and recovered the knife from there, we find that the other three witnesses i.e. PW Talib Hussain, PW Muneer Hussain and PW Khurshid Alam have made contrary statements in respect to the recovery of knife, as PW Khurshid Alam has stated that the accused had himself dug 37 CRA No. 01/2010 the heap of dung and got the knife recovered, whereas PW Muneer Hussain has stated that the heap of dung was old and it was not dug and PW Talib Hussain has stated that the Police asked him to dig the heap of dung and on asking of the Police, he dug the dung. He had further stated that the accused was not present when the recovery was made. In view of the contradictory statements made by the three witnesses in respect of the recovery of weapon of offence and further as the disclosure memo itself is disputed, it cannot be said that the prosecution has been able to prove this circumstance beyond reasonable doubt. (j) Circumstance No. 6: Appellant had tried to portray the murder of the deceased by him as if she was killed by militants. This circumstance need not be dealt as the prosecution has not been able to prove the chain of circumstances against the appellant but we deem it proper to observe that when this circumstance was alleged by the prosecution to nail the appellant, the prosecution ought to have examined the Investigating Officer, as it was IO only who could have falsified the defence projected by the appellant that his wife was killed by the militants. PW Mohammed Bashir has stated that he was taken by the accused on spot and was shown the dead body of the deceased after removing the cloth over the same. He further stated that the accused had come to his home at 11.00 A.M. in the night and had gone somewhere. Hehas further stated that one day prior to the occurrence, the militants had come and had killed the deceased. He also stated that he had made the similar statement before the Police, but thereafter he was detained in the Police station and beaten to make statement against the accused. We are conscious of the fact that if the 38 CRA No. 01/2010 militants had threatened the appellant, Miss X and her mother due to immoral act, as it has come in the deposition of Miss X, then they would have killed the appellant and not his wife. Though the needle of suspicion points towards the appellant, as he was residing with the deceased in his home at Leeran and it is difficult to believe that instead of killing him, the militants would kill his wife, but mere suspicion cannot take the place of proof, however the strong may be. In „Subramanya v. State of Karnataka, (2023) 11 SCC 255‟, the Hon‟ble Supreme Court of India has held as under: “92. Thus, even if it is believed that the appellant- accused had a motive to commit the crime, the same may be an important circumstance in a case based on circumstantial evidence but cannot take the place as a conclusive proof that the person concerned was the author of the crime. One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant-accused but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. The trial court rightly disbelieved motive to commit the crime as the evidence in this regard is absolutely hearsay in nature.” (emphasis added) (k) The Investigating Officer ought to have been examined by the prosecution, more particularly when PW Muneer Hussain has stated that the disclosure statement was prepared on place of recovery of weapon of offence and the witnesses to the recovery memo have made contrary statements to each other. The disclosure statement in respect of concealing the weapon of offence and its recovery pursuant thereto, is such an important circumstance in the chain of incriminating circumstances that if the same remains not proved, then by no stretch of imagination, the appellant can be convicted for the commission of offence of murder of his wife. Thus, this circumstance also is held to be not proved. 39 CRA No. 01/2010 (l) In „Munna Lal v. State of U.P., 2023 SCC OnLine SC 80‟ the Hon‟ble Supreme Court of India, while taking note of non-examination of investigating Officer, observed as under: “------the missing links could have been provided by the Investigating Officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the Investigating Officer could not depose as a witness, as told by PW-4, is that he had been sent for training. It was not shown that the Investigating Officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the Investigating Officer. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW-2 and PW-3 not being wholly reliable, this Court holds the present case as one where examination of the Investigating Officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.” (emphasis added) (m) In case titled „Laxman Prasad v. State of M.P., (2023) 6 SCC 399‟,the prosecution had proved the motive and „last seen theory‟ but could not prove the recovery of weapon of assault as observed by the High Court but still the High Court had convicted the appellant. The Hon‟ble Supreme Court of India acquitted the appellant, thereby observing as under:

2. The present one is a case of circumstantial evidence. The prosecution led evidence to establish three links of the chain : (i) motive, (ii) last seen, and (iii) recovery of weapon of assault, at the pointing out of the appellant. The High Court, while dealing with the evidence on record, agreed with the finding of motive and the last seen, however, insofar as the recovery of the weapon of assault and bloodstained clothes were concerned, the High Court in para 18 of the judgment held the same to be invalid and also goes to the extent to say that the recovery which has been made does not indicate that the appellant has committed the offence. Still, it observed that looking to the entire gamut and other 40 CRA No. 01/2010 clinching evidence against the appellant of last seen and motive, affirmed the conviction. (emphasis added)

33. We are of the considered view that the prosecution has not been able to prove the complete chain of circumstances as noted above by us and the most material circumstance which the prosecution could not prove is in respect of disclosure statement made by the appellant in respect of weapon of offence and the consequent recovery thereto. We are conscious of the settled position of law that in case of direct evidence, the failure on the part of the prosecution to prove the disclosure statement of the accused in respect of weapon of offence and consequent recovery may not be of much relevance, but in a case based on circumstantial evidence, where one of the incriminating circumstances cited by the prosecution is in respect of disclosure statement regarding the weapon of offence and its consequent recovery, the failure on the part of the prosecution to prove the said circumstance would be fatal and in such circumstances, the benefit must go to the accused. We have examined the judgment passed by the learned trial court and we find that the issues noted by us, as mentioned above, have not been taken note of by the learned trial court and we have no hesitation to hold that the learned trial court has not rightly appreciated the evidence. Conclusion:

34. In view of what has been discussed and analysed hereinabove, we are of the considered view that the appellant deserves to be granted the benefit of doubt. Accordingly, the conviction of the appellant by virtue of judgment dated 01.01.2010 for commission of offence under Section 302 RPC and the order of sentence dated 06.01.2010passed by the learned Additional Sessions Judge, Rajouri in charge-sheet titled „State of J&K vs. Mohd. 41 CRA No. 01/2010 Hussain‟ are not sustainable in the eyes of law and are required to be set aside. The appellant is acquitted. His bail and personal bonds are discharged. Reference is answered accordingly.

35. Record of the trial court be sent back forthwith. (RAJESH SEKHRI) (RAJNESH OSWAL) JUDGE JUDGE Jammu 07.11.2024 Sahil Padha Whether the order is speaking: Whether the order is reportable: Yes/No Yes/No Sahil Padha 2024.11.07 22:16 I attest to the accuracy and integrity of this document