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2026 Supreme(Online)(J&K) 288
Massarat Jabeen, Judicial Member
Farida Shabnum – Appellant
Versus
Union Territory Of Jammu And Kashmir – Respondent
454/2024
For the Appellants/Petitioners: Toufiq Ahmad
For the Respondents: Basharat Majid
Under Section 108 of the Evidence Act, when a person is proven to have been missing and unheard of for more than seven years by those who would naturally have heard of them, the court may invoke a legal presumption of death.
Headnote:(A) Indian Evidence Act, 1872 - Section 108 - Custodial disappearance - Suit for declaration of death and issuance of death certificate - Presumption of death - Where a person has not been heard of for more than seven years by those who would have naturally heard of him, a legal presumption of death arises - Evidence establishes that the missing person was taken into custody by army personnel and has not been heard of since 1997 - Defendants failed to rebut the presumption - Court satisfied that prerequisites for declaring person dead are met and mandated issuance of death certificate. (Paras 27, 28, 29)
Facts of the case:
The plaintiffs sought a decree of declaration claiming the death of their husband and father, Abdul Rashid Wani, who disappeared after being taken into custody by the 2/8 Gorkha Riffles on July 7, 1997. Despite a Habeas Corpus petition and a subsequent FIR investigation, his whereabouts remained unknown for over 28 years.
Findings of Court:
The court found that the plaintiffs' testimony was consistent and unrebutted by the defendants. Evidence from a past judicial inquiry indicated that the individual was murdered while in custody. The court concluded that the criteria for a legal presumption of death under Section 108 were satisfied.
Issues: Whether the missing person was taken into custody by military forces, whether he remained in continuous detention until his disappearance, and whether the legal threshold for declaring him dead (seven years of missing status) had been met.
Ratio Decidendi: Upon the lapse of seven years without contact from an individual by those who would normally be in touch, a rebuttable presumption of death exists. When evidence of custodial disappearance is presented and remains uncontradicted by the state, the court is entitled to decree such a declaration.
Result: Suit decreed in favour of plaintiffs; death declared and mandatory injunction for issuance of death certificate granted.
| Table of Content |
|---|
| 1. plaintiffs seek a judicial declaration of death for a long-missing custodial detainee. (Para 1 , 2 , 3 , 4) |
| 2. evidentiary testimony supports the claim of custodial disappearance over 28 years. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 3. court applies presumption of death under section 108 due to seven-year disappearance. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 4. court decrees the death declaration and mandates the issuance of a death certificate. (Para 30 , 31) |
JUDGMENT
1. Instant suit came to be instituted by the plaintiffs seeking for following reliefs: “A decree of Declaration declaring Abdul Rashid Wani as Dead. A mandatory injunction commanding upon the defendants particularly the defendant no.2 issue Death Certificate of Abdul Rashid Wani S/o Abdul Samad Wani R/o Madina Colony Bemina Srinagar in favour of the plaintiffs, as for the act the plaintiff as in duty bound shall ever pray.”
2. It is averred in the plaint by the plaintiffs that Abdul Rashid Wani was taken into custody by personnel of 2/8 Gorkha Riffles on 07/07/1997 at Rawalpora Srinagar alongwith one Farooq Ahmad Bhat in a vehicle bearing registration no. 1674/JK01C. However, Farooq Ahmad Bhat was subsequently released and Abdul Rashid Wani never returned, and his whereabouts remained unknown since the said date. The plaintiffs have failed to secure his release or trace his whereabouts, approached the Hon’ble High Court of J&K by filling a written petition no. 139/1997. Pursuant thereto directions were issued to register a criminal case. Consequently, after an inquiry conducted by the Worthy Session Judge Srinagar regarding custodial disappearance FIR No. 180/02 was registered at Police Station ParimporaSrinagar. However, despite investigation, no fruitful outcome emerged and the case culminated in submission of final report.
3. It is further averred that Abdul Rashid Wani has not been heard of since 07/07/1997 by any person who would naturally have heard of him including his immediate family members, and more than seven years have elapsed since his disappearance. A statutory notice too was served upon the defendants, but no relief was granted compelling the plaintiffs to file the present suit.
4. Upon presentation of the suit, other side after causing their appearance filed written statement. In their written statement other side has submitted that the suit has been filed by suppressing the material facts and suggesting false fabricated facts. Therefore, there is suppressioveri and suggestiofalsi, thus suit deserves outright dismissal. It is then stated that the defendants have no role in tracing out or declaring anybody dead merely because his whereabouts are not known. Declaring any person whose whereabouts are not known falls outside the domain of the answering defendants, no cause of action has accrued to the Plaintiff(s) against the answering defendants as the answering defendants are not the proper parties to the suit, thus the suit deserves outright dismissal for non-joinder of necessary parties. The defendants have no legal sanctity to declare any person dead in the absence of any proper & thorough investigation by the Police agencies.
5. After recording the preliminary statement, the following issues were framed vide order dated 27.06.2024:
I. Whether the husband of plaintiff no.1 was taken bundled by 2/8 Gorkha Riffles on 07.07.1997 in a vehicle bearing no.1674/JK 01C at Rawalporaalongwith one Farooq Ahmad Bhat.? OPP
II. Whether Farooq Ahmad Bhat was released later on and husband of plaintiff no.1 was still in continuous detention? OPP
III. Whether any investigation was conducted by the Id court of Sessions Judge Srinagar. If yes then what was the report filed before such court.? OPP
IV. Whether FIR No.182/2002 was registered before the police station Parimpora Srinagar? What was the final report of that FIR.? OPP
V. Whether the husband of plaintiff no.1 is con
