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2014 Supreme(J&K) 351
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Virender Singh ,Bansi Lal Bhat, JJ.
Bashir Ahmed Wagay -Appellant
Versus
State of J&K -Resopndent
Cr. Appeal No. 04-2013 c-w Confirm Ref. No. 01-2013
Decided On : 16-10-2014
S.T. Hussain, Shuja-ul-Haq.
Headnote:
CRIMINAL - MURDER - CONVICTION - EVIDENCE - APPRECIATION - SOLE EYE WITNESS - RELIABILITY - CORROBORATION - DISCLOSURE STATEMENT - RECOVERY OF WEAPON - CREDIBILITY - BURDEN OF PROOF - ACQUITTAL.
Fact of the Case:
The accused was convicted of murder under Section 302 of the RPC based on the testimony of a sole eye witness, Mubarak Dar, who claimed to have seen the accused assaulting the deceased with a danda. The accused also made a disclosure statement leading to the recovery of the danda, which was identified as the weapon of offense.
Finding of the Court:
The court found that the testimony of the sole eye witness was unreliable and could not be relied upon to convict the accused. The court also found that the disclosure statement and the recovery of the weapon were not credible and could not be used to establish the guilt of the accused. The court held that the prosecution had failed to discharge its burden of proving the guilt of the accused beyond a reasonable doubt and acquitted him.
Issues: 1. Whether the testimony of the sole eye witness was reliable and could be relied upon to convict the accused. 2. Whether the disclosure statement and the recovery of the weapon were credible and could be used to establish the guilt of the accused. 3. Whether the prosecution had discharged its burden of proving the guilt of the accused beyond a reasonable doubt.
Ratio Decidendi: 1. The court held that the testimony of the sole eye witness was unreliable and could not be relied upon to convict the accused because: a) The witness had deviated from his version disclosed before the police during investigation. b) The witness had admitted that he was standing at a distance of 100 feet from the place of occurrence and it was dark at night, making it difficult to identify the accused. c) The witness had not informed anyone about the incident for four days, which raised doubts about his credibility. 2. The court held that the disclosure statement and the recovery of the weapon were not credible and could not be used to establish the guilt of the accused because: a) The disclosure statement was not supported by the recovery memo. b) The witnesses to the recovery memo had made contradictory statements. c) The investigating officer had admitted that the danda recovered from the spot was round and not pointed or sharp edged, contradicting the medical evidence that the weapon of offense was a sharp object. 3. The court held that the prosecution had failed to discharge its burden of proving the guilt of the accused beyond a reasonable doubt because the evidence against the accused was unreliable and could not be relied upon.
Final Decision: The court set aside the conviction and order of sentence of life imprisonment and acquitted the accused.
1. This appeal is directed against judgment of conviction dated 20.12.2012 and order of sentence dated 22.12.2012 formulated by learned Sessions Judge Kulgam by virtue whereof appellant - Bashir Ahmed Wagay (hereinafter referred to as `accused') stands convicted of offence under Section 302 of RPC and sentenced to undergo imprisonment for life besides paying a fine of Rs. 2,000/- (Rupees Two Thousand), in default to suffer three months simple imprisonment. Confirmation Reference in terms of provisions of Section 374 of Cr.P.C. submitted by the learned Sessions Judge is clubbed with the appeal for disposal.
2. The accused was tried along with one Mst. Saida w/o deceased Ismail Naik resident of Asnoor on the basis of Charge Sheet filed by Station House Officer of Police Station Damhal Hanjipora in case registered under FIR No. 53 of 1990 alleging commission of offence under Sections 302,109 of RPC. It appears that initially the case was committed to the Court of learned Sessions Judge Anantnag in absence of accused who were allegedly absconding but was remanded back to Magistrate to adhere to the mandate of Section 205-D and 193 of Cr.P.C. After some inept handling of the case causing unnecessary delay, the case was committed to Court of Sessions after the accused- Bashir Ahmed Wagay was arrested. Learned Sessions Judge framed charges against the accused for offence under Section 302 of RPC. With the creation of Sessions Division for newly created District of Kulgam the case stood transferred to learned Sessions Judge Kulgam. The trial culminated in slapping of conviction and life sentence upon the accused as aforesaid.
3. Prosecution version, as unfolded in the Charge Sheet, is that on 30.10.1990 one Abdul Qadeer Naik laid information at Police Station D. H. Pora to the effect on 29.10.1990 deceased Ismail Naik had gone to the forest for bringing fire wood but he had not returned back to his home till evening. The informant further stated that Basharat Ahmed Naik and Showkat Ahmed Naik, who had set out in search of the deceased, discovered dead body of deceased lying in a pool of blood at a place and they informed Mohd. Amin Naik who also went on spot. They had noticed blood stains on the Goriwan road and found grievous injuries on the head of the deceased. These witnesses had found a wooden log lying besides the dead body. As per informant it was suspected that the deceased had been murdered by the accused Bashir Ahmed Wagay on instigation of Mst. Saida wife of deceased as the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida and he wanted to contract marriage with her. This information led to registration of case under FIR No. 53/1990 for offence under Section 302 of RPC. During the course of investigation body of deceased was seized along with blood stained clay, stones and a wooden log from the place of occurrence. The seized articles were sealed on spot. Post Mortem Examination was conducted on the body of the deceased. The wearing apparels of deceased were seized. It was found that the deceased had sustained fatal injuries on his head which had been caused by a Danda (stick). Accused Bashir Ahmed Wagay was arrested on 03.11.1990 and on his Disclosure Statement a wooden Danda was recovered at his instance from his house. The investigation revealed that the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida- the wife of deceased and the latter wanted to contract marriage with accused Bashir Ahmed Wagay. Mst. Saida had children from the deceased-husband and she had resorted to pressure tactics harassing the deceased to compel him to divorce her. Ultimately, she hatched a criminal conspiracy with accused Bashir Ahmed Wagay to eliminate her husband and in furtherance of such conspiracy accused-Bashir Ahmed Wagay committed murder of Ismail Naik. The material assembled during investigation established complicity of accused Bashir Ahmed Wagay in offence under Section
