Rehman Wagay, Ali Wagay & Satar Wagay vs State

G.M. Mir, J.—This appeal has been filed by Rehman Wagay, Ali Wagay and Sattar Wagay against their conviction u/s 30, 39, 120B.

R.P.C. and for having been sentenced to life imprisonment by the Sessions Judge, Anantnag.

The facts of the case, as alleged by the prosecution are that in the night falling between 31.3.1973 and 1.4.1973 two persons, namely, Ragow

Kaul and Shobawti were murdered in their house situate in the village Ramnagri. Shopian and burglary was committed in the house. It is alleged

that one Beja Wazir who was some time back a household servant of Ragow Kaul and his deceased brother's wife, Smt. Shobawati, entered into

a conspiracy with the appellants herein and the approver Jabar Dar for committing burglary in the house and for murdering the two persons who

lived in the house. It is alleged that it was PW 8, Gani Rather, who early in the morning on 1.4.73 went to the house of Ragow. Kaul to purchase

when he found a window of the house half open and through that half open window he saw Ragow Kaul lying on bed groaning with pain. He also

saw a woman in the bed as if in sleep. Gani Rather immediately thereafter meet0, PW 7. Dwarka Nath, near the village and narrates to him what

he had seen. Upon this almost at the Pandith Baradari of the village collected in the compound of the deceased Ragow Koul. Two Lambardars,

Wali Mohd and Mustafa and Chowkidar, Gulla Ganai, were sent for and when they came on spot they went inside and found that Shoba Wati

was already dead but Eagow Koul was still breathing. The Police was informed. They came on spot along with a Doctor. The Doctor declared

that Mst. Shoba Wati, had already died and Ragow Koul who was given some emergency treatment failed to respond to the medical aid and he

also breathed his last. Postmortem of the dead bodies was conducted on spot. All the belongings of the deceased persons were seized by the

police. According to the prosecution story, the police found on spot two shoe imprints which were covered by them and the moulds of the same

were taken on 3rd April, 1973. The Police started investigation but found no clue for about a year and four months. It is alleged that one Rustum

Golwan was under interrogation in another murder case registered in the Police Station Pulwama. He, it is alleged, informed the police there that

the appellants and the approver were responsible for the crime committed at Ramnagri. This information was allegedly given by Rustum Galwan on

21.5.71 The police, therefore, immediately set itself to action and the three accused persons and the approver were arrested from the forest on

24.8.74. It is alleged that on 9, x.74 one of the accused namely, Jabbar Dar, applied from the Central Jail that he would make a truthful disclosure

of the facts that led to the crime committed at Ramnagari. The S. P. Anantnag applied for pardon being granted to him which was granted and the

confessional statement of Jabbar Dar was recorded on 26.x.74. The challan was produced in the court of law.

The prosecution had named 43 witnesses in the chalian but ultimately examined only 24 of them. The rest were either given up or not produced.

The accused have not examined any witness in defence.

The charge framed against each of the accused was that they along with the approver on the night of occurrence effected their entry through a

window into the house of the deceased with common intention and object to murder the inmates of the house and steal the cash, the ornaments and

documents. The accused therefore, have been charged as well as convicted us 302, 396, 120B R. P. C. As they pleaded before the Sessions

Judge that they were not guilty and claimed to be tried, the prosecution was directed to lead the evidence.

The most important statement on record was that of the approver, Jabbar Dar, According to his statement he took part at all stages of the

crime. According to him, Bejard Wazir, the exservant of the deceased, met him in a fare and while he was having a talk with him, Bejard Wazir

inquired about the address of his house. Five or six days thereafter, Bejard Wazir came to the house of the approver and told him that a good

amount of money and booty would be available if burglary was committed at the house of the approver and told him that a good amount of money

and booty would be available if burglary was committed at the house of the deceased. The approver, however, did not agree with Bejard Wazir at

that time but Bajard Wazir again called upon him and this time the approver called Ali Wagay to his house and Bejard Wazir made the proposal

again to them. Ali Wagay told him that he has a cousin, who lived in village wathu and was an expert in the job. All the three agreed to pay a visit

to Wathu in this regard and the approver along with Ali Wagay and Bejard Wazir, lefi for Wathu and met Rahman Wagay and Sattar Wagay

there. All of them agreed that the burglary shall be committed and one of the appellants, Rehman Wagay, proposed that in case the in mates of the

house raised any noise they should be done to death. On the following day they met again in the house of Rehman Wagay and agreed to meet on

the following day. On that day they met again, took their meals and left for Ramnagri dividing the party into three groups. Rahman Wagay and

Bejard Wazir formed one group and Jabbar and Sattar Wagay another and Ali Wagay followed them. They reached the house of the deceased

but were unable to open the front door. They however, effected their entry through a window. They went upstairs where Ragow Kaul was asleep.

Bejard Wazir set on his chest and made him unconscious. They made a search of the room but found no money there, so they came downstairs to

the room where Shoba Wati was sleeping. They kept Ali Wagay to keep vigilance over he movements of Ragow Kaul and to see whether he was

really unconscious or was only pretending to be so. The room where Shoba wati was sleeping was broken open and entered into by the rest of the

accused. Bejard Wazir gaged the mouth of Shobawati and put a piece of cloth into her mouth Rahman Wagay helped him in pushing the piece of

cloth with the help of an iron bar down into Penditani's throat. Shobawati died immediately thereafter. Bejarrd Wazir searched for keys and found

two of them and asked the approver to light the lantern for light. One box was opened wherefrom cash and documents in white bag were

recovered which articles were put into his pheron by Rehman Wagay. A second trunk was opened from where some cash in a maroon coloured

bag was recovered. This bag also was put by Rehman Wagay into his pheron. The third trunk was opened by Rehman Wagay with iron bar,

wherefrom they not another bag containing silver coins and golden air ring, golden bangles and some silver ornaments. These articles were also put

by Rehman Wagay into his person. A fourth box was also opened by Rehman but nothing was found therein. When these proceedings were on,

Ali Wagay, shouted from upstairs that Ragow Koul had got up and was trying to come downstairs with the support of the walls. Ali Wagay himself

at this stage, tried to run away from the spot, but Rehman Wagay threatened him that if he would run away he would kill him. After this Rehman

Wagay caught hold of the leg of Ragow Koul while the other was caught by Bejard Wazir. They dragged him down the stairs to the room where

grass and other such like things had been stored. They both Rehman Wagay and Bejard Wazir trampled over the body of Ragow Koul and made

him unconscious till they thought his pulse stopped to move. They also struck him against the bricks of the floor. From that room they dragged him

to the room where Shoba Wati was already lying dead and put Ragow Koul in her bed and said that when in the morning people would come to

the house they would see both of them in one bed and would surely draw the conclusion that both of them were immoral persons. After having

finished their work they came out of the house from the same window from which they had enterred into it. Sattar Wagay accused had been

posted outside the house to watch that no body else enters the house. The approver has further stated that he was wearing a shoe with nails and

stars. The whole loot, according to the approver, was carried by Rehman Wag iv to his place and all of them reached his house just at dawn and

took tea in the house of Rehman Wagay. In the room they counted the cash and found Rs. 15000/ and silver coins, a golden ring, a golden bangle

and a golden Hanzra. They first divided the silver coins. Every one of them got 11 silver coins each. They then divided the cash and each of them

got Rs. 3000.00. The silver Hanzura was taken by Bajard Wazir. Ear rings were taken by Rahman Wagay. The golden bangle was given to the

approver. As it was supposed that the golden bangle cost much more, therefore, the approver had to pay Rs. 20/ to others on this account. All of

them wrapped the cash and coins in the papers and documents, stolen from the house of the deceased. All of them promised to each other not to

divulge the secret or to accept the responsibility in any case whatsoever. All of them thereupon dispersed. After a few days, Sattar Wagay

informed the approver that Rehman has been taken into custody by the Police. Two months thereafter Rehman Wagay himself came to the

approver and told him that for two months he was detained by the police and subjected to torture but did not divulge anything to the police.

Rehman Wagay demanded some money from the approver which he gave to him and also asked him to collect Rs. 609/ from Ali Wagay which

was also done. The approver thereafter left for Punjab and during the spring on his return Rehman Wagay again called upon him and told him that

Rustum Galwan had been arrested in connection with Mazahama murder case and that he had told the police that the murder of the Pandit and

Panditani and the plunder had been committed by him and others. Rehman wagay also told the approver that it was he who had sometime back

divulged the secret to Rustum Calwan Rehman Wagay therefore, asked the approver to go into hiding. So they went into the forest to evade

arrest. The police came to their village but as they were not there, they left empty handed. According to the approver, he and the others confined

themselves in a jungle for about 4 months but ultimately, they were arrested by a police party and taken to the police station Shopian. They were

kept in separate rooms and the police subjected him to torture and when it exceeded the tolerable limits he was forced to narrate the whole story

to the police and also told them that he was having some cash out of the stolen property. He also told the police that the silver coins were lying with

him. The police recorded his statement. The police searched his house and recovered Rs. 312/ and 5 silver coins from a trunk the e. A seize memo

was prepared. Then in police station Shopian he made yet another disclosure statement with regard to the bungles which he had sold to a

goldsmith. Police went to the goldsmith and recovered the golden bangle from him. The approver further stated that his shoe EXPW I/C was also

seized by the police and he admitted before the police, that he was putting on the same shoe on the day of occurrence. He also in foremed the

police that at the time of occurrence Rehman Wagay was using plastic shoes. Ali Wagay had put en a duckback rubber shoe with buttons. Sattar

Wagay was putting on a plastic shoe with laces. Bejard Wnzir was also using a plastic shoe. After these disclosure statements and recoveries, they

were sent to Central Jail Srinagar. He met a Havaldar there and told him that he would like to make a truthful statement of the occurrence. He got

an application written by the constable to this effect as a result of which he was produced in the court of Judicial Magistrate, Dooru, where he

made a confessional statement. Thereafter his another state mint was recorded by C J. M. Anantnag. His confessional statement is marked EXPW

1/6. He had purchased the shoe in Amritsar during the year 197273. In crossexamination he admitted that Mr. Zargar Inspector of Police, who

investigated the case and Mohd Ibrahim Constable were present in the court premises on the day he was being examined in the court. His house

was searched, first and thereafter he was produced before the Magistrate. It was further stated by him that when they reached the compound of

the deceased their shoes had become well because of rain and under the circumstances he agreed that they must have left foot prints in the sagzars

through which they passed and also in the rooms of Ragow Koul. He has stated next that he did not know that it was an offence to commit theft.

Had he known it he would not have accompanied Bajard Wazir. As he was afraid of Rehman Wagay, he did not inform the Police. He deposed

further (hat when they left for hiding place in Jungle none of them took any rice or any other kind of eatables with them, nor they carried any

beddings. He has denied that be remained in the police custody for about 21 months before he consented to make a state rent as the police

wanted him to make. He was taken into custody on 24.8.1974. One of them used to visit his house at night and fetch as much food as possible.

According to him Gulla Wani also had been arrested.

The next witness produced is Wali Mohd. According to him, he was sitting at his shop when some pundits came and told him that murder had

taken place. He went to the house of the deceased and along with others entered the house and found Shobawati already dead, but Ragow Koul

was still breathing, Along with others he went to the Police Station for lodging the report. The Lamberdar and chowkider were also with him. They

filed the report which is EXPW 2/1. He has identified his signatures on this document The police seized various articles from the house of the

deceased and prepared several seizure memos. According to him. Ali Wagay the accused told the police that some articles stolen from the house

which had fallen to his share were in his house and he was prepared to show them. In the same way he was also present in the police station when

other accused Rahman Wagay said almost the same thing to the police which was recorded by the police and the witness also put his signature on

it. Us does not know who wrote the F. I R. nor whether it was written by Ghmu staff a Lambardar or Gulla Ganai or one of the Pandiths present

there. As soon as the police arrived on the spot they went straight to the room where the dead bodies were lying. There the police found the foot

imprints also. Some body covered these foot prints with baskets. He, however, did not remember who did it. The police at that time was

accompanied by a Doctor as well as some Pundits of the locality and all of them on arrival straight away entered into the room in which the fort

prints were also found. They did not find any foot prints either in the corridor or in the compound or in the varandah of the house. In the room of

the deceased he saw 4 broken boxes but the 5th box was found in tact from which on search an amount of Rs. 8000/ were recovered.

6 Ghulara Mustafa Lamberdaris another witness. He has gone on the spot Along with others and some Pandiths. He was the Lambardar of the

village. He has also signed the FIR EXPW 2/1. Some foot prints, according to him, were found in the room where the dead bodies were and the

police took photographs of the same. The police seized some other articles also, some of which were stained with blood and prepared a number

of seizure memos : which the witness signed. In his presence Rehnvm Wagay accused made a disclosure statement to the pounce which is EXP

2/17 on the file. In crossexamination he has deposed that the room in which the two dead bodies were lying w: s covered with some covering only

to the extent where the beds lay. The rest of the room was not covered with any coverings. When he Along with others went to this room he did

not find any foot prints any where on the uncovered portion of the room But when he retuned with the police he did find some imprints of one foot.

He however, says that even though he entered the room he did not leave any imprints of his shoes there. One of the policeman covered the foot

imprints. No paper, however, was prepared by the Police on finding the foot prints in the room. When the witness after 3 days again went into this

room he did not find any sign, of foot prints there i. e. he did not find his own toot prints or that of any one else who had entered Along with him in

the room a day or two earlier"".

Gh. Mustaffa has visited the spit the day following the occurrence. He conducted the police to the rooms in the house. Some articles were

recovered by the police and the papers were prepared which he also signed. He went to the house of the deceased because some body had told

him that the people who had murdered the inmates of the house had been arrested and brought to the house. In crossexamination the witness

deposed that it was in his presence that the statements of Jabar and Ali Wagay accused were recorded by the police. It was after one and a half

year after the occurrence that the accused were taken into custody. The FIR according to him was dictated by Wali Mohd Lambardar but he did

not know who took it down.

7 The next witness is Gulla Ganai. He is the chowkidar of the village where the occurrence took place. He went on spot and found a large number

of pandits present the e. In the meanwhile Wali Mohd and Gh. Mustaffa Limbardar come on spot and all of them entered the house of the

deceased Ragow Koul. Ragow Koul was still breathing but Shobawati had already died In the meanwhile on their report the police came on the

spot He also signed the F I.R. One arrival of the police, the police seized several articles and prepared a number of seizure memos. The accused

were taken into custody after 18 months of the murder. Police in his presence seized the shoe from Rehman accused and prepared seizure memo

EXP/I. The shoes of AM, Sattar and Jabbar Wagay also were seized and exhibits were prepared, resigned the seizure list. In crossexamination he

has stated that when he reached the spot he Along with Waii Mohd, Gh. Mustaffa PWs and iO15 pandits entered the room where the dead

bodies were lying. Some portion of the room was covered but half of it was not covered. He and all others Along with him who entered the room

had put on their shoes. He, however, was not able to so whether any marks of foot prints were left on the floor in the room. In the room of Ragow

Koul no foot prints were found. It was all before the police had come on the spot. When the police came besides others, 1015 pandiths also

entered into the room. He could not say as to whether any foot prints in the room when they first entered it. The Deputy Commissioner had also

come on spot and it was in his presence that Rs. 8000/ were seized from one of the boxes. The witness also was kept behind the bars at the

Interrogation Centre for two days. He has further stated that he did not remember it correctly as to whether the shoes seized from Rehmiin Wagay

accused were taken out of his feet in his presence or not. But it was the Munshi of the Thana who told him that the shoes belonged to Rehman

Wagay accused, Similarly he saw other accused namely, Sattar, Wagay, AM Wagay and Jabbar approver, bare foot in the police station. The

next witness Rahim Malk who belongs to another village namely, Wathu, has stated that he Along with 23 persons were sitting in a fiel1 when the

police brought Rehman accused there and the police told them that they had come to search the house belonging to the accused Rehman. The

witness went Along with and on search of the house the police seized a pocket, a handkerchief in which there were Rs. 8/. The pocket contained

Rs. 80 In the pocket a receipt issued by the Action Committee in the name of Ragow Koul, the Koul, the deceased was also found. Moreover

there was a prescription also. Besides these things, an application on behalf of the deceased Ragow Koul was also found in the pocket which

contained 64 leaves and the name of the deceased Ragow Koul also appeared in the pocket. Gh. Mohd Lone and Gh. Mohd Shah were with the

witness at that time. In crossexamination he stated Mohd Mir was the nearest neighbour of the accused Rehman. He was not present at the time of

search. He had seen the accused in the village a month and a half before the police came to search his house alongwith him. Gh. Mohd Lone PW

has stated that he and Ab Rahim Malik and Gh. Mohd Shah were sitting in the field at 4 P. M. when the police brought Rehman accused and they

were taken to the compound of the house of Rehman accused police asked them to search the police personnel which they did. In the house

Rehman accused pointed out towards a wooden box. The police opened the box and found a pocket book. From this pocket police recovered

two currency notes of 100/ rupee each and Rs. 60/ notes of 10 each and 3 more notes of Rs. 10, '. In all Rs. 885/ were recovered from the

pocket. Rs. 8/ of silver, a prescription and a receipt were also recovered from the pocket. The police thereafter prepared seizure memos. In

crossexamination the witness has deposed that the accused Rehman Wagay lives within his Lambardari jurisdiction. 11year before the search of his

house took place, Rehman accused was seen in the village by the witness. Though the wife of Rehman accused was in the house, police did not

ask her to search them.

The next witness is Abdul Kabir Khan. When he heard that the accused had been taken into custody for the murder of the deceased of the two

persons, he went to the police station. He found there that the police was examining Rehman accused. On the following day Jabbar made a

disclosure statement. Similarly, Ali Wagay gave a disclosure statement. In crossexamination he has stated that the statements of the accused were

got recorded by the police one after the other.

Ali Mohd is another witness, who was sitting with Rahim Malik and Mohd Lone in the field when the police brought Rehman accused and

searched his house. The wife of the accused was also sitting in the compound Rahim Malik searched the pockets of the of the police personnel: On

search from the wooden boxes a pocket was recovered from which an amount of Rs. 885/ in currency notes was found. Moreover Rs. 8/ of silver

were also found which were wrapped in a paper. Besides these things, a prescription in the name of Ragow Koul deceased and a receipt for Rs.

10/ were also found. The Police prepared the seizure memos, the witness also signed the same. The witness was also present when the house of

Jabbar and Ali wagay accused were searched. From the house of the cased Ali wagay the police recovered a stamped paper and some more

papers and also recovered Rs 34/ which included two silver coins. From the house of Ali wagay, accused Rs 725/ and some papers were

recovered and seized. He did not remember as to whether any person belonging to the house of Rehman accused was present when search of his

house was made.

Gh. Rassol is another witness who has deposed that in his presence houses of Ali wagay and Jabbar were searched by the police from the

houses of Jabbar, an amount of Rs 34/ and 5 silver coins were recoverd and from which Rs 725/ were also recovered. In crossexamination he has

stated that he had seen the accused in their village lQ15 days before the search of the house was effected There was no body present in the house

as Ali wagay when the same was searched. However, Jabbar accused parents were in the house but no signatures were obtained from them about

the search

Gana Kaul PW has stated that Dwarka Nath and Jawahar lal came to him and told him that one Gani Rather had told him that he had heard

some noise of groaning coming out from the house of Ragow Koul and Shobawati deceased. Upon this the witnees Along with Dwarka Nath,

Jawahar Lal, went to the house of the deceased where he found a number of people including Lambardar Gulla Ganai and wali Mohd and

Chowkidar. At 3o' clock the police came on spot, made a search of the house and seized some articles and prepared some seizure memos.

Amongst Various articles the police seized were, two 'dejeharoos' weighing about two tolas of gold, one ring of gold and some other articles. The

witnees saw that there were foot prints in the room which were photographed by the police. At the time of postmortem some more articles of gold

were seized from the dead body of Shobawati. The police prepared the moulds of footprints in his presence. In croosexamination he admitted that

he was not shown any of the seized articles made of gold in the court on the day he was examined. He used to visit the house of the deceased who

was doing no work at all. Only he and his deceased brother's wife Shobawati lived in the house. Ragow Koul deceased had no permanent servant

but one wazir bejard was his servant some 3 years before the occurrence. When the police came on the spot, two foot prints were visible but the

witness dose not remember whether any powder was sprouted over the foot prints, or not. But both these imprints of foot were covered by the

police. He has, however admitted that on FXPR 2/12, the record of seizure of moulds, is not signed by him. Jawahar Lal witnees has reached the

spot at 10 in the morning. He went to the house of the deceased and did not enter the house. The police was then informed. Dwark Nath, the next

witness has deposed that he also went to the house of the deceased and found one of the window's of the house open The report was lodged by

the Lambardar in the police station Shopian.

Soom Nath Koul, the next witness on the hearing about the occurrence went to the house of the deceased. He found Ragow Koul, the

deceased dying while shobawati had already died. He Along with others entered the room of the deceased when the police arrived on spot.

N.N. Koul PW has issued the receipt in the name of Rogow Koul deceased for his subscription to Hindu Action Committee. This receipt is

EXPW 5/1 A.

Mahda Joo Zargar is the next witness, who has deposed that it was from Ahsan Joo Zargar, some three years before, that he had purchased

bangles from him.

14 Ahsan Joo Zargar has also been produced. He has deposed that Jabbar Wagay came to him and told him that he wanted to sell the bagles. He

thereupon purchased the bangles and paid Rs. 275/ for the same, after one year of the event the police seized the bangles from him.

15 PW Abdul Aziz Lone has deposed that it was in his presence that accused Jabbar had informed the police that he had sold the bangles to a

goldsmith in Shopian.

16 Jia Lal is another witness, who has deposed that the application dt. 11.11.1958 shown to him in the court was in his handwriting as he was the

petitionwriter. He had written this application at the request of Ragow Koul.

17 Abdul Hamid Zargar is the witness for the recovery bangles from Ahsan Joo Zargar.

18 Meheshwar Nath who is a stamp vendor working in Shopian has deposed that he has sold the stamps to be used for writing the agreement

EXPW 1/11.

19 Gani Rather PW has deposed that hehad gone to the house of the deceased to purchase 'Alsi'. He found a window half open in the room.

Through that window he heard the groaning of Ragow out. He went away and informed some persons especially pandits about this matter.

20 Teerath Singh Patwari has prepared the site plan. Noor Hajam has deposed that 1011 years before he had given his son Ahmad Hajam in

service to Ragow Koul deceased and in this regard had executed an agreement which was EXPW 1/1A. He has further deposed that this

document was with the declassed.

21 QamarudDin Head Constable has deposed on 24.8.74 he was working in police Lines, Anantnag. The Inspector of Police brought four

persons to Police Lines, including Jabar Dar the approver. According to the witness, the shoes of the 3 accused were taken away and were

seized. In crossexamination he has stated that besides himself the only other person who was present at the time of seizure except the accused and

the approver, was a person whose name was Gulla Ganai.

22 BashirudDin S. I. has deposed that on 1 4.73, a report about the murder was received in thana' He went on spot and effected seizers of a

number of articles and prepared a number of seizure memos. He sent the deceased for postmortem and thereafter the dead bodies were cremated.

When he reached the spot he found some people already collected in the compound of the deceased and some where in the Verandah also. He

tried to give some medical aid to dying Ragow but he did not survive. A Medical Officer and a nurse was also with him at that time, when he Along

with the Dr. and Nurse entered the room where the dead bodies were lying a number of people also entered the same room. When the money was

recovered from the house of the deceased, the Dy. Commissioner was pressent. It was in the presence of Tehsildar that all other articles were

seized. The Patwari was also present. He has prepared Fard Surat 'site Plan) of Ragow Koul. In one of the columns of this Fardsrurat Hal, He had

to mention if there was on the spot found any foot prints or any signs of fight : but he had not made mention of these facts in the 'FardsuratHal'

because of some mistake. The foot prints, according to the witness were, however, seen on 1.4.73. He does not remember whether the

TehsildarMagistrate, who visited the spot also saw the foot prints or whether the foot prints were shown to him or not. He did not prepared any

paper with regardto the foot prints.

Mohd Ibrahim, who was working then as S. H. O. Shopian has deposed that in a murder case under Sec : 302 RPC one accused Rustum

Gulwan had told him that a murder at Ramaagri was committed by Rehman, Jabbar and Ali and Sattar and Wazir Bejard. He passed on this

informat on to Circle Inspector Gh. Rasool Zargar. He accompanied the police when the house of Rehman Wagay was searched. He also

accompanied the police when the house of other accused were searched and the articles mentioned in various recovery lists were seized.

Chuni Lal S, I D;ass has depo ed that, he has taken the moulds of foot prints in question. Foot prints had been kept untouched. He has

identified the moulds shown to him. He did not find any foot prints in the varendha.

Gh. Rosool Zargar Inspector Police has deposed that it was SHO Pulwama who gave him the clue about the murder of Ragow Koul and

Shobawati. He informed him about all that Rustum Gulwan had told him. He tried to arrest the accused persons but could not immediately succeed

in arresting any. He sent a police party to Rajouri for taking Wazir Bejard into custody. However, in the last days of August all the 3 accused and

the approver were taken into custody. He took them to police station Shopian and seized that shoes and prepared the recovery lists. After

recovering in irises kept them in safe and later were sent to Forensic Laboratory alongwith a shoulders taken from the house of the deceased. Then

the witness relates as to how all the three accused made disclosure statements before him, as a result of which searches were effected in their

houses and articles belonging to the deceased were recovered. The report of the Forensic Laboratory was received by the Inspector which said

that two mouldes, one of Jabbar Dar and the other of Rehman Wagay were found to tally with the footprints of the shoes belonging to these two

persons. In his crossexamination, he stated that it was do necessary for him to show or to produce Rustum Galwan also as a witness. The accused

were arrested from a jungle. Though cigarettes and tobacco and photographswere recovered from the pockets of the accused at the time of their

apprehension but he has not made any mention of these things in the police diary, because it was not necessary to do so. He however, admitted

that from the area where the accused were taken into the custody nothing eatable was found nor any cooking vessels or material was found there.

Abdul Gulla Ganai PW, Mr. Zargar has deposed that at the time when the shoes of the accused were seized he was present in the Police Station.

The witness has admitted that there was no entry of deaths in the register of births and deaths for the date of 24.874. The diary was maintained by

Gulla Ganai PW. He has admitted that from 7.9.74 up to 9 x.74 no article was recovered concerning the occurrence. It was in October that the

statement of approver was recorded.

That is all the evidence the prosecution has produced, though the list of the prosecution witnesses included a number of persons more but all of

them were either given up as not required to be produced or as having turned hostile.

The statements of the accused were recorded in which they denied all the allegations levalled against them and also said that nothing seized in

the case including the money and the shoes belonged to them.

The learned Sessions Judge Anantnag relying on the testimony of the approver has convicted the appellants as stated above and sentenced

them to life imprisonment.

The arguments of the learned counsel for both the sides were heard at length.

The main piece of evidence in the prosecution case consists apparently is that of the statement of the approver, Jabbar Dar Under Section 103

of the Evidence Act, an approver is a competent witness against an accused person and conviction would not be illegal merely because it proceeds

upon an uncorroborated testimony of the accomplice. It was therefore, evident that an accomplice was a competent witness. But u/s 114 (b) of the

Evidence Act, it is laid down that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars

of his testimony. It is therefore, obvious that Illustration (b) to Sec 114 and the rule laid down in Sec: 133 of the Evidence Act are matters dealing

with one and the same subject and neither could be excluded in the exercise of judicial discretion except of course, in cases of very exceptional

nature. Though the evidence of an accomplice is admissible against a coaccused, his testimony as a rule of caution is regarded and considered with

distrust and fullest corroboration by means of independent and reliable evidence whether direct or circumstantial, in material particulars, is required

for a conviction to be based on the approver's testimony. The law in this regard in this country is not different from the law in England, It has been

laid down in a number of cases by various High Courts in India and the Supreme Court as well, that a conviction based on an uncorroborated

testimony of an accomplice is not illegal. But it has been also laid down that experience has shown that it was not safe to rely upon the evidence of

an accomplice unless it was corroborated in at least some of the material particulars. In AIR : 1936 : Rangoon : 110, Roberts Chief Justice, has

observed as follows :

The rule of law says that an accomplice is competent to give evidence and the rule of practice says that it is almost always unsafe to convict upon

this testimony alone. But the rule of law to this extent triumphs ever the rule of practice and if special circumstances exist which render it safe in an

exceptional case to act upon the uncorroborated testimony of an accomplice and upon that alone the Court will not mealy for the reasons that the

conviction proceeds upon such uncorroborated testimony, say that the conviction is illegal.

The Supreme Court in AIR: 1963: SC : 599 having referred to the observations of Martin, Judge and another Judge of the Privy Council had an

occasion to observe as follows :

The combined effect of Sec. 133 and 143 Illustration (B) may be stated as follows : According to the former which is a rule of law, an accomplice

is competent to give evidence and according to the later which is the rule of practice, it is almost always unsafe to confide upon his testimony alone.

Therefore, the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will, as a matter of practice

not accept the evidence of such a witness without corroboration in material particulars. The evidence in corroboration did not always be direct, it

may be even circumstantial but the corroboration must be reliable and independent

At the same time the rule also appears to be that if a court is satisfied that the approver is speaking truth in some material part of his testimony

in which he is supported by unambiguous evidence, there may be a reasonable ground for believing that the approver was also speaking truth so

for as other parts of his testimony were concerned. On a review of most of the English cases, the Supreme Court in AIR : 1968 : SG : 832 has laid

as follows :

The conviction upon uncorroborated evidence of one or more accomplices is valid in law but the danger of relying on the uncorroborated

evidence of accomplices is very great and Judges and Juries ought not to pay any respect to the testimony of an accomplice, unless he is

corroborated not only as to the circumstances of the crime, but also as to the person of the approver.

It is now fully recognised to be an established practice equivalent to a rule of law to require corroboration of the evidence of an accomplice by

independent evidence on some material particulars relating to the offence itself and also implicating the accused.

In AIR : 1979: SC : 1761, it has been laid down that ""the law was well settled that the court looks with some amount of suspicion upon the

evidence of an accomplice witness which is a tinted evidence and even S. 133 of the Evidence Act clearly provides that the evidence of an

accomplice witness should not be accepted unless corroborated.

The Supreme Court has further laid down as follows :""At the same time it must be in respect of material particulars and not with respect to each

and every item, however, minor or insignificant it may be, Actually the requirement of corroboration is a rule of prudence which the courts have

followed for satisfying the test of reliability of an approver and has now been crystallized into a rule of law. It is equally well settled that one tainted

evidence cannot corroborate another tainted evidence because if it is allowed to be done then the very necessity of corroboration is frustrated.

On the settled principles of law it becomes therefore, necessary to search for, in this case, the corroboration either direct or circumstantial to

the testimony given by the approver. Corroboration that may be reasonably required must be with regard to at least some material particulars

narrated by the approver in his testimony. That brings us to the point to find as to what were the important particulars referred to in the deposition

of the approver so far as this case was concerned. To me it appears that the first material particular in the testimony was, the melting of the

approver and Bejard Wazir at the fair: the second was, their meeting with the rest of avouched where a conspiracy was hatched by all of them to

commit theft and if necessary, murder of the deceased. The third important and material factor was their entry into and the exit from the house of

the deceased and the beating there of Ragow Kaul and murdey of Shobawati by putting a 10 (Chader) in her mouth so as to suffocate her to

death. Next, the foot prints allegedly found by the police in the room of the deceased too are material particulars On search of the houses of the

approver and some of the accused it is alleged that documents, receipts and prescriptions concertinaing Ragow Kual the deceased were

recovered. These also were important and material pieces of circumstantial evidence referred to in the testimony of the approver.

At the very out set it may be said that besides the statements of the approver, there was no direct or circumstantial evidence with regard to the

conspiracy entered into by the accused persons and the approver for murder and plunder, of the house of the deceased ; nor there was any

evidence of there entry into the house of the deceased or they having beaten and having murder them. No doubt, the prosecution have led

evidence with regards the foot imprints allegedly left behind by the accused persons in the room of the deceased. The police have allegedly taken

pictures and then though an Expert got prepared moulds of these feet imprints and have also sent the same Along with the shoes allegedly worn by

the accused at the time of their apprehension, to an expert for comparisons, opinion and report. In the first instance, the very fact of the alleged

foot imprints left on the floor of the room by the accused becomes doubtful inasmuch as it was in the evidence of the Prosecution itself that a large

number of people entered the room and varandha immediately after the occurrence was discovered. It is under the circumstances doubtful whether

the foot imprints allegedly left behind by the accused in the room were in fact and in reality the foot imprints left behind by them there. Moreover

the accused have been apprehended after about 18 months of the occurrence. There is no evidence to show that the accused were putting on the

same shoes on the date of occurrence, nor there is any evidence to show that the accused made no use of these shoes daring the period between

the occurrence and their arrest. Further, there was no evidence to show that the shoes worn by the accused were of some special type which they

alone possessed. It may not be unusual to presume that if the accused had been using the shoes for about 18 months after the occurrence, the foot

imprints, left behind allegedly by them, would not continue to be the same as those found on the shoes at the time of their arrest. The Expert has

not considered this question. There is one more factor which indicates that the shoes seized from the accused and the approver at the time of their

apprehension may not really have belonged to them The seizure memos : of the shoes indicate that only one person, Gulla Ganai Chowkidar, was

present at the time the shoes came to be seized by the Police, who however, has stated in the first instance that the accuse J themselves presented

these shoes to the officer investigating the case, while in the crossexamination he deposed that he was not sure that these shoes belonged to the

approver and the accused. It was the Head Constable who had told him so, as otherwise it was not inhis presence that the shoes were removed

from the person of the accused or the approver. The evidence led on this important circumstance appearing in the case against the accused does

not who; heartedly and (sic) support the case of the prosecution. On having given careful thought to this aspect of the case, I am of the view that it

is not unmistakably and beyond reasonable doubt established that the accused were using these shoes at the time of occurrence and also that the

same were seized from them at the time of their apprehension.

From search of the houses of the accused and the approver some silver coins have been recovered. It could not be reasonably said that these

silver coins could only belong to the deceased. Silver coins were common things and may be found in any house. The only relevant articles

allegedly recovered on search from some of the houses of the accused and the approver are some documents executed in favour of Ragow Kaul,

a prescription in the name of Ragow Kaul and the receipt issued by the Secretary, Hindu Action Committee for Rs. 10/ in favour of the deceased.

May be these articles as alleged were recovered from the houses of the accused and the approver but the question that arises is as to why and for

what purpose the accused and the approver had been careful enough to keep these incriminating documents in their possession even after"" 18

months of the occurrence. May be all criminals are not as wise as to destroy incriminating evidence against them, yet a lapse of time between the

occurrence and the search of the hoaxes puts a shadow of doubt around the whole episode. There is a particular set of witnesses who have

accompanied the police in such searches. The neighbors have been singularly excluded. Though it was not the case of the accused, yet there was

nothing unlikely to suggest that the incriminating documents have been planted in the houses to connect the accused with the crime. I, therefore, feel

it would be too hazardous to connect the accused with the crime on such doubtful piece of evidence. Moreover, there is no evidence to show that

the recovery of such documents was effected from the places which were in actual possession of the accused or The approver. Under section 114

Evidence Act, no presumption can be founded on the fact that the property was found in a house occupied by the accused and also by others. To

raise the presumption u/s 114 of the Evidence Act it must be proved as fact that the possession of the place from where the articles were

recovered was that of the accused and that too the same was exclusive.

It was thus obvious that the testimony of the approver has not been corroborated by any realiable, direct or circumstance evidence in material

particulars and therefore, following the settled rule of law and practice it would be hazardous to rely on such an uncorroborated testimony of the

approver. With regard to various important particulars the evidence led by the prosecution was either unreliable or doubtful.

Under the circumstances it would not be possible to hold that the accused appellants had committed the murder of the deceased and

plundered the house. The whole matter appears to be doubtful. The benefit of the doubt is therefore, given to the accused and as such I set aside

their sentence and conviction ordered by the Sessions Judge Anantnag and direct that they be released from the immediately after performing

necessary formalities.

The article and cash and articles of gold etc. seized in the case shall be escheated to the State as none of the accused has claimed the property

as his own, nor the prosecution has claimed that there was any legal heir to the property recovered. However, if there was any legal heir, he may

peruse the matter further in a civil court of competent jurisdiction and till the period of limitation for this purpose does not expire, the prosecution

shall not take any further action with regards the seized property and shall keep the same in proper custody.

Under the circumstances mentioned above the reference for confirmation made by the Sessions Judge Anantnag is also rejected.