State vs Abdul Gani Bhat And Others

RAJNESH OSWAL, J

The present appeal has been preferred against the judgment of acquittal dated 03.05.2018 passed by the learned Sessions Judge, Kulgam by virtue

of which the respondents have been acquitted for commission of offences under sections 364, 302 and 120-B RPC in FIR bearing No. 111/2015 of

Police Station, Kulgam.

The present appeal has been filed, inter alia, on the grounds that the judgment is bad in the eyes of law as the prosecution has succeeded to prove

the motive behind the murder of the deceased who was having love affair with the daughter of respondent No.1, namely, Abdul Gani Bhat. It is

further stated that the trial court has given much weight to the delay in recording the statement of the witnesses, ignoring the fact that a Special

Investigation Team (SIT) was constituted to investigate the case and Sub Inspector Bashir Ahmad was appointed as member of the SIT. The learned

trial court has wrongly ignored the disclosure/confessional statement of juvenile, Aafia Jan, particularly when the prosecution has succeeded to prove

the disclosure/confessional statement.

Before appreciating the challenge thrown to the acquittal of the respondents, it is necessary to have a brief resume of the prosecution story. FIR

No. 111/2015 was registered on a written complaint filed by the complainant, namely, Firdous Ahmad Wani with Police Station, Kulgam, wherein it

was alleged by the complainant that on 19.06.2015 his brother, Altaf Wani, left his home last evening and did not return back. It was further stated in

the complaint that at 8 AM, the dead body of his brother was found hanging on the apple tree in the garden of Sayar Ahmad Bhat S/o Mohammad

Abdullah Bhat R/o. Okey. It was further stated that his brother was abducted by Abdul Gani Bhat and Mohammad Abass Bhat, respondent Nos.1

and 5 herein and tortured. After registration of the case, the investigation of the case was entrusted to PW No. 27-Sub Inspector Mohammad Iqbal.

During the course of investigation, the body of the deceased was recovered and identified as Altaf Ahmad Wani S/o Abdul Rehman Wani R/o Okey.

The Police also recovered one dupatta which was around the neck of the deceased. The Police also recovered one chappal and one hair clip on spot.

During the personal search of the deceased, one mobile phone along with sim card and some cash amount were also recovered. During investigation,

the dead body was taken to the Hospital Kulgam for post-mortem and after completion of the post-mortem, the body of deceased was handed over to

the parents of the deceased for last rites. It is further submitted that during the course of investigation, Ms. Aafia Jan made a disclosure/confessional

statement thereby admitting that on 18.06.2015 in the evening, she called the deceased in the garden of Sayar Ahmad Bhat through phone of her

friend Irshada wherefrom she took the deceased to the second storey of her residential house and subsequently her father, namely, Abdul Gani Bhat,

her brother Abass Bhat, her mother Nabza Begum including uncle Rashid Bhat, Rehman Bhat, Ghulam Bhat, Hassan Bhat, Hameed Bhat her cousin

Ishfaq Bhat, Ishtiyaz Bhat, Aaquib Bhat, Imtiyaz Bhat, her maternal uncle Ammerullah, Sayar Bhat and Murtaza also came in the said room.

Meanwhile, Abdul Gani Bhat and Abass Bhat gagged the mouth of the deceased by a frock and dupatta due to which deceased died on the spot.

Thereafter, the dead body of the deceased was taken to the garden of Sayar Ahmad Bhat and was hanged on an apple tree so that people may get an

impression that deceased has committed suicide. Pursuant to the disclosure statement and on the identification of Aafia Jan, one frock and one dupatta

were also recovered. FSL opinion and post-mortem report was also obtained and from the opinion of Doctor, it transpired that deceased has died due

to smothering and subsequently the dead body of the deceased was hanged. During the course of investigation, it was established that the deceased

and Aafia Jan were having love affair for the last three years and they wanted to marry and in this regard the family members of the deceased

repeatedly went to the house of respondent No. 1 with the proposal of marriage. However, respondent No. 1 and his other relatives were against such

marriage. After the conclusion of the investigation, the challan for commission of offences under sections 364, 302 and 120-B RPC was filed and the

charges were framed against all the respondents. As the respondents did not plead guilty, the prosecution was directed to lead evidence. The

prosecution has examined almost all the witnesses and in order to properly appreciate the issues raised by the appellant, it is better to have a brief

resume of the prosecution witnesses.

PW-1 Mohammad Maqbool Mir has simply stated that he found the dead body hanging on an apple tree and the police came on spot. The

photographs of the dead body were taken and they also took dead body in their possession and „Fard Makboozgi Naash‟ was prepared. He was

witness to the said document. He is also witness to the memo regarding the identification of the dead body as that of Altaf Ahmad Bhat. He was also

witness to the handing over of the dead body to the family members of the deceased. He has stated that the police did not record the statement of

Aafia Jan in his presence and he has no knowledge as to whether any statement was given by her before the police. The seizure memo with regard to

some card/cash, bears his signature. The T- shirt and pant etc were also seized. The seizure memo bears his signatures. During cross-examination, he

has stated that all the accused including Aafia Jan were also arrested by the police after ten days of the occurrence. Aafia Jan remained in custody till

she got bail from the court. The accused and Aafia Jan were detained in Police Station, Kulgam for a period of four months. The police did not seize

the articles in his presence those were shown to him in court and same were not recovered in his presence. The police took his signature on all the

documents in Police Station at same time after twenty days of occurrence.

PW-2 Mushtaq Ahmad Wani did not support the prosecution and categorically stated that Aafia Jan did not make any statement in his presence.

During cross-examination also by the Public Prosecutor, he could not elicit any incriminating material against the respondents.

PW-3 Sayar Ahmad Padder has stated that accused were known to him. The occurrence took place in the year, 2015 in the month of Ramzan. He

received the information at 8 AM that the body of the deceased was hanging in the garden of Sayar Bhat. He went on spot and after one and a half

hour, police came on spot and they took the dead body in their possession. The dead body was taken to hospital Kulgam for the purpose of post-

mortem. After post-mortem, dead body was handed over to his legal heirs for last rites. He further stated that the police during investigation recovered

dupatta and frock from the house of Gani Bhat. After that Aafia Jan confessed before him during investigation. She admitted that the deceased was

first called by her family and subsequently he was hanged. The confessional/disclosure statement is on file. The same is in Kashmiri language and it

has been read over to him. The contents are true and correct and bears his signatures and he identifies the same, that was exhibited as EXPW-18. On

the disclosure of Aafia Jan, police recovered frock, dupatta and trouser/pajama. He identified his signature on it. The contents of the recovery memo

were read over and explained to him which he admitted to be true and correct. On cross-examination, he stated that the complainant, Firdous Wani is

his cousin. When police came on spot, they saw deceased hanging with scarf. The said scarf was seized by police. The scarf is same that has been

shown to him in court and he identifies it. The police did not go to the house of accused at that moment. The police seized pant of deceased and said

trouser in one bag. The recovered trouser and pant of deceased were seized in police station. Ms. Aafia Jan was arrested after three days of the

occurrence. On the next day of the arrest of Aafia Jan, she was brought to Okey for recovery. On the next date of occurrence, he went to police

station, where he saw Aafia Jan and on the same day she confessed. The disclosure/confessional statement was recorded by Head Constable

Manzoor Ahmad. He took his signatures on it.

PW-4 Firdous Ahmad Wani (complainant) stated that the respondents are known to him. On 18.06.2015, Gulzar Ahmad Dar, his neighbour was

present in his home. When they came out of the house, the deceased Altaf brought vegetables to home. After dropping vegetables at home, he left

again and did not come back home again. We tried to call him but his phone was switched off. We sent Nadeema and Wazeera to the house of Gani

Bhat, but the wife of Gani Bhat did not open door and did not allow them to enter home. After that both of them returned home. We were in shock for

whole night and early morning, we went for his search, however, we could not find him and we returned home. After that his father, namely, Abdul

Rahman went to the house of Mohd Amin Bhat and he told him that Altaf was missing since yesterday. Therefore, Mohd Amin Bhat went to the

house of Abdul Rashid Bhat to confirm whereabouts of deceased. Abdul Rashid Bhat replied that the body of the deceased was hanging on some tree

in the orchard. Therefore, Mohd Amin Bhat told him and his other family members about the said fact. He along with family members and neighbours

went on spot and they found that the Altaf was hanging on a tree. Thereafter police came on spot and took the dead body in their possession and was

brought to the Hospital Kulgam for post-mortem. After post-mortem, the body was handed over to them. He had submitted written application before

the police. FIR is on file. He identified his signature and also admitted the contents of the same to be true and correct. In cross-examination, stated

that Gulzar Ahmad is his neighbour. It is not mentioned in his statement that his sister Nadeema and Wazeera went to the house of Gani Bhat, where

the wife of Gani Bhat did not allow them to enter into their home and they returned to home. He did not know the name of persons, who drafted the

application but he got the application drafted from the Tehsil Office Kulgam. He was not in full senses when he submitted the application before the

police as such he wrote name of only two accused. After few days of occurrence police arrested some accused who are facing trial before the Chief

Judicial Magistrate, Kulgam. They were detained during day and were released at evening. The same process continued for one month. He did not

remember after how many days the accused were arrested by the police. He did not remember after how many days he went to the police station.

He went to police station after occurrence, however, he was not allowed to meet accused. He did not file second application after arrest of accused.

However, second application was submitted by his father. On that application, other accused were arrested by the police. He has no knowledge when

his father submitted that application before police. He has knowledge that on next day of occurrence, police came to his home.

PW-5 Shabir Ahmad Malik was declared hostile and during cross-examination by the Public Prosecutor, no incriminating material could be elicited

by him against the accused-respondents.

PW-6 Tariq Ahmad Naik stated that the accused were known to him. They belong to his village. Mohd Maqool is his neighbour. He was doing

business with him. He was having friendship with the daughter of Mohd. Maqbool whose name is Irshada, as such, he had given one mobile phone

and sim card to her. He was talking with Irshada on same phone. After that he heard about the dead body of deceased. He has no knowledge

whether deceased and Irshada are known to each other. Police seized sim card from Irshada and took into their possession. On cross examination,

stated that he was doing business with Mohd Maqbool as such he gave sim card to him. He did not give sim card to Irshada. He has no knowledge

who was using this sim card and what kind of chatting was going on through this sim card. Aafia Jan was arrested by the police after four days of

occurrence and she was in continuous custody till released on bail by the court.

PW-7 Mst. Nadeema stated that she was going to sleep when the daughter of Abdul Rehman i.e. Mst. Wazeera came to her home and called her

through window. She told her that as to whether Aafia Jan is at home or not. Both she as well as Wazeera went to the house of Gani Bhat. She

knocked the door and called Nabza wife of Gani Bhat. She opened the door and she asked her for Aafia Jan. She replied that she was sleeping. She

asked Mst. Nabza that the deceased Altaf was missing since morning and his phone was switched off. Then she returned home. Thereafter early in

the morning she heard that the dead body of the deceased was hanging in the orchard. She also went on spot and saw the deceased. During cross-

examination, she stated that Wazeera was sitting on the bank of river situated 20 ft. away from the house of Gani Bhat. When she returned home

from the house of Nabza, Wazeera also accompanied her. She neither entered into the house of Nabza nor she went near to the house. She (witness)

saw only Mst. Nabza in her house and she did not see anybody else. She (witness) did not see anybody in a room but the light of the room was on.

PW-8 Ali Mohammad Dar stated that the accused were known to him. He along with Abdul Rehman Wani, complainant went to the house of

Gani Bhat before the occurrence with the proposal of marriage of deceased Altaf with his daughter Aafia Jan. Gani Bhat rejected the proposal and

told that he would not marry her daughter with deceased and they returned home. He heard in the morning in the month of Ramzan that the dead body

of the deceased was hanging on a tree in the orchard. He also went on spot. The police also came on spot and they took the dead body into their

possession and conducted further proceedings. On cross examination, stated that the deceased was hanged with pink colour scarf. The police came

on spot and took the dead body along with said scarf. The accused were arrested after four days of the occurrence. Aafia Jan was also arrested.

PW-9 Ghulam Qadir Bhat stated that it was in the year, 2015 at 10 PM, he was at home when he heard some noise outside and thereafter he

went to the house of Sayar Ahmad Bhat and Ameerullah Bhat. He asked them the cause of noise and they replied that Aafia Jan was weeping and

she wanted to marry with Altaf. He stated that he told them that they should solemnize her marriage. At that time Sayar Ahmad Bhat and Ameerullah

Bhat were at home. After that he came back to his home and slept. He, on the next morning, heard that the dead body of deceased was hanging on a

tree. He also went there and saw the dead body. On cross examination, stated that he heard that Altaf wanted to marry with Aafia Jan daughter of

Gani Bhat. He did not hear that they refused to marry. When he saw the deceased, there was a scarf around his neck. He did not know whether

police seized that scarf or not. He did not remember the colour of the scarf. He did not see anybody when he came out from home after hearing noise

at evening.

PW No. 10 Irshada Akhter stated that the accused are known to him. It was first day of the month of Ramzan, she went to one stream. Mst.

Aafia Jan was also sitting on the other side of the stream and she called her there. She told Aafia Jan that she will call the deceased Altaf on phone.

She gave missed call to Altaf and thereafter, Altaf called and he asked her about her well being. Aafia Jan was sitting adjacent to her. Aafia started

talking with Altaf. She has no knowledge what kind of conversation was going on between them. Altaf told Aafia what she was asking for. Aafia told

him that she was asking for the phone. Altaf told her to return her phone and come to the garden. Thereafter, Aafia Jan went to the home and she

also went home. She in the early morning heard that the dead body of the Altaf was hanging in a garden. On cross examination, stated that Altaf was

having great love for Aafia Jan but she did not know whether Gani Bhat was ready to marry Aafia with Altaf or not. Police recorded her statement

on the next day of occurrence, however, after one month her statement was recorded before the Magistrate. Accused are remote neighbours of her.

Aafia was her friend. She has no knowledge when Aafia Jan was arrested by the police after occurrence. She was also detained in Police Station for

a period of twenty days. After that she was produced before the Magistrate for recording her statement and later on released. She was detained

along with accused and Aafia Jan in Police Station after occurrence. During this period police did not record any statement of Aafia Jan and she did

not tell her anything about occurrence.

PW-11 Rashid Malik did not support the prosecution story and was declared hostile.

PW-12 Mst. Wazeera stated that the accused were known to her and on the first day of the month of Ramzan, 2015 she told the deceased to

fetch vegetable as it was first day of Ramzan. Thereafter she told him to get medicine and he accordingly went for getting medicine. The deceased

did not return back. After some time the deceased was called by his father on phone. He replied that he will return after some time because the

chemist was busy. After that they all sat on veranda. Thereafter, she called the deceased on phone but his phone was switched off. When her father

returned home, she told him that phone of deceased was switched off. They waited for the deceased but he did not return home. After that she took

one woman(Nadeema) with her and went to the house of Gani Bhat. Nadeema called the wife of Gani Bhat outside house. She told her that Altaf

was missing and asked her where her daughter was. The wife of Gani Bhat replied that Aafia was at home but she did not see the deceased. She

observed the movement of 10/20 men in that house. She told Nadeema that perhaps her brother Altaf has been killed by them and thereafter, they

returned to their home. When she reached home she told her cousin about the same, who took few men along with him and went to the house of Gani

Bhat. However, he returned back and told that they were armed with lathies as such they were forced to flee. In the morning they again went for the

search of the deceased, however, they could not find him. After that they told Amin Bhat to go to the house of Gani Bhat and confirm about Aafia

because deceased Altaf had been missing since yesterday. Amin Bhat returned back and told that there was movement of the people in the house of

Gani Bhat. Rashid Bhat told that deceased was lying near orchard near the compound of Gani Bhat. Gani Bhat was present in his compound and he

confessed that he committed mistake. When she had gone to the market about two to four days before the day of occurrence, she met Aafia who told

her that she wanted to marry the deceased. However, her parents were not willing and they would kill Altaf. On cross-examination, stated that she did

not remember whether the police came to Okey after the occurrence. She did not also remember whether she gave any statement before police. She

did not remember day of occurrence. Gani Bhat has number of neighbours. When she saw a large number of people moving in the house of Gani

Bhat, she did not cry but returned home and then she stayed at home. She went to the corridor of the house of Gani Bhat. She identified all the

persons through glass who were moving inside the house. She went up to the door of house of Gani Bhat but she did not go inside. She again went to

the compound of Gani Bhat on the next day where Gani Bhat said that they have committed a mistake. But she did not go to the police station at that

time. She did not remember whether she gave any statement to police before recording her statement by the Magistrate. Mst. Nadeema who was

accompanying her went to the house of Gani Bhat, however, she did not enter into the house. She did not see Aafia and her brother Altaf in the house

of Gani Bhat.

PW No. 13 Abdul Rahman Wani (father of the deceased) stated that the deceased Altaf was his son. He was sick on the date of occurrence. He

sent his son outside to get medicine. However, he did not come back. He went for his search but he could not find him till late night. On the next day,

in morning the rumour spread that dead body of deceased was lying somewhere. He also went there and the dead body of his son was lying hanged.

The police came on spot and they took dead body in their possession for post-mortem. Then dead body was taken and buried. He was declared hostile

and during cross-examination by Public Prosecutor stated that it was true that the deceased was going to marry Aafia Jan. He sent someone to

accused with marriage proposal but accused refused the proposal. Aafia Jan never came to his house to meet deceased. He has no knowledge as to

whether Nadeema and Wazeera at 11.30 PM went to the house of accused for search of the deceased and confirm whether deceased and Aafia

were present there because we were tense. He has no knowledge which proceedings were conducted by whom with regard to the search of the

deceased. He was not told by anybody that they were not allowed to enter in to the house of Ghani Bhat. His statement was recorded by judge but he

was not in his proper senses in those days. On cross-examination by defence counsel, stated that when his statement was recorded under section 164-

A Cr.P.C, he was not in his senses, as such, that statement was not correct. He has further stated that the FIR was lodged against the accused on

mere suspicion. However, accused are not involved in the case.

PW-14 Ghulam Mohammad Malik was declared hostile. However, he has admitted during cross examination that he went to the house of Gani

Bhat before occurrence with the marriage proposal of the deceased with his daughter Aafia Jan. However, he did not go inside the house. He got his

statement recorded before the Magistrate at the instance of police and police forced him to give such statement.

PW-15 Mohammad Amin Bhat was declared hostile and during cross examination, he has stated that he did not go to the house of Gani Bhat for

the search of the deceased.

PW-16 Beauty Jan stated that the deceased was her younger brother. The deceased was sent to get medicine by his family but he did not return

back till late. She went outside to call her brother and she heard him talking loudly on phone. She called him to get medicine. She followed his brother

who entered into the compound of Mst. Irshada. Irshada and Aafia were talking with each other. Aafia and Mst. Irshada put their arms on the

shoulder of the deceased and he was taken to the other side of river. Subsequently he was taken to the vegetable bed. She stated that she thought that

they might have to discuss something as such she returned back. She did not disclose that matter to the family. The whereabouts of the deceased

could not be known till morning and in the morning she heard that the deceased has been killed and his dead body was hanging on a tree in the orchard

of Sayar Ahmad Padder. On cross-examination, stated that her statement was recorded by the Police after the gap of six months. She was not

mentally fit. She had lost her mental balance for a period of six months. She has no knowledge whether police came on spot on the next day of

occurrence. She did not know the name of the person who recorded her statement. She put two signatures on the statement.

PW-17 Muneera Akhter stated that she was on duty in Police Station on the said date. Aafia Jan made confession in her presence. The said

confessional statement was read over to the witness. She admitted it to be true and identified her signature on it. On cross examination, stated that she

did not know whether statements of the accused persons were recorded. She was sitting outside the room along with Aafia Jan for her watch and

ward and the officers were writing the confession inside the room. Thereafter she was called inside the room and her signatures were taken on the

confession. She did not know the Kashmiri language. She did not read the contents of the confession before putting her signature on it because she did

not know Kashmiri. The confession was not read over to her.

PW-18 Maryama stated that on 09.09.2015 she was on duty at Police Lines Kulgam and on the day she was called by the Police Station, Kulgam

from Police Lines, wherein the statement of Aafia Jan was recorded who stated that she was having love affair with the deceased Altaf and she

further confessed that she was talking to the deceased in the orchard of Sayar Bhat. The confessional statement of Aafia Jan was recorded in her

presence and the documents were prepared. The confessional statement was read over to her and she admitted it to be true and correct. It is

exhibited as EXPW-18. She also identified the recovered dupatta and frock in the court. She stated further that the police recovered the frock and

dupattta from Okey. The recovery memo with regard to the frock/dupatta is on file and she identified her signature. On cross examination, stated that

at the time of confession, large number of police officers were present. The said statement was written by Head Constable Manzoor Ahmad and he

took the signature of Ms. Aafia Jan on it. She did not remember how many persons put their signatures on the confession before her. The Public

Prosecutor has not read the whole confessional statement today but only half has been read. She did not read the confessional statement at the time it

was written nor she had read before putting her signatures on it. The Investigating Officer also did not read over the statement to her. The recovered

articles were not recovered in her presence because she did not go to the place of recovery. The contents of the recovery memo are incorrect.

However, the police took her signature on it in the police station. The Investigating Officer did not read over the contents of the recovery memo to her

but only took her signatures. The articles shown to her today in the bag are not sealed. The police took her signatures on confession and recovery

memo at the same time. The confessional statement was recorded inside the room and she was on duty with the accused outside the room.

PW-21 Mohammad Iqbal Patwari stated that he had prepared the site plan of the place of occurrence. During cross examination, he stated that he

had prepared the same on the identification of witnesses. However, he has no personal knowledge about the place of occurrence.

PW-22 Dr. Reyaz Ahmad stated that he conducted the post-mortem of the deceased and prepared the post-mortem report. He stated that his

opinion is that the features are consistent with death due to asphyxia as a result of smothering then afterward followed by hanging. On cross-

examination, he stated that the deceased died because of smothering. He further stated that it is true that if a person dies because of smothering, he

will try to save himself and during this process he will struggle for that and he had found all such signs in the present case. Signs of smothering and

hanging are different but some signs are same. He further stated that he was not hundred per cent sure that the cause of death in his certificate is the

ultimate cause of death of the deceased. He further stated during cross examination that it was mandatory in the case that he should have been taken

on the spot by the police. It was incumbent upon the Investigating Officer to take him at the crime scene where the deceased was hanging on tree. If

he had gone on the spot at the time when the deceased was hanging on the tree, he would have given better opinion with regard to the cause of death.

PW-24 Dr. Lateef Ahmad stated that the department of Pathology has received skin covered flat tissue piece on 19.06.2015 and to that extent, he

had given opinion and prepared the certificate.

PW-25 Nazir Ahmad that he took photographs as per direction at the place of occurrence.

PW-27 Sub Inspector, Mohd. Iqbal stated that he had conducted the investigation in the case and recovered the dead body and had also seized

mobile phone and sim card etc. He had also seized one hawai chappal and one lady hair clip. He had also obtained post-mortem report and FSL

report. He had also recorded the statements of the witnesses under sections 161 Cr.P.C as well as 164-A Cr.P.C. During investigation, he went on

leave and further investigation was conducted by some other person. On cross examination, stated that in the application filed by the complainant, only

two accused were mentioned. The evidence with regard to other accused was in the form of statements recorded under section 164-A Cr.P.C and

161 Cr.P.C and circumstantial evidence was also collected. During investigation, he recorded the statement of Abdul Rashid Malik and Wazeera and

on that statement, the involvement of other accused surfaced. He did not conclude the evidence against all the accused persons during investigation of

the case. He recorded the statement of Mst Irshada after one month of occurrence but he cannot say as to why he recorded her statement after more

than a month of occurrence. Similarly, he recorded the statement of Abdul Rashid Malik under section 164-A CrPC after about two months of

occurrence but he cannot explain why he recorded their statement after such a long delay. Statement of Abdul Rehman Wani was recorded under

section 164-A CrPC after two months of occurrence because his son had died. He cannot say as to why he recorded the statements of Ghulam

Mohammad Wani and Mohd Amin under section 164-A Cr.P.C. after two months of occurrence. He recorded the statement of Mushtaq Wani under

section 164-A CrPC but he did not say anything about the occurrence. Similarly, Bashir Ahmad Malik and Firdous Ahmad Wani also did not state

anything about the occurrence during investigation and the same was the case of Sayer Ahmad Paddar and Mohd Maqbool. During the course of

investigation, statement of Nadeema has been recorded under section 161 Cr.P.C. and she did not state in her statement that she has seen all the

accused in the house of Gani Bhat. None of the prosecution witnesses has disclosed till months from the date of occurrence that they saw all the

accused together in the house of Gani Bhat. He seized only one scarf till he conducted the investigation and he did not know as to whom the scarf

belonged and from where the same was brought. After the date of occurrence, the accused were brought to the Police Station and then they were

allowed to go to home. He asked Aafia Jan about the occurrence but she did not say anything about the occurrence.

PW-28 Inspector Irshad Ahmad deposed on similar lines as that of PW-27. Additionally he has stated that the call details were obtained and it was

confirmed that the deceased and Aafia talked to each other and to that extent, the statement of Irshada was recorded under section 164-A Cr.P.C.

Meanwhile, Aafia Jan was called for questioning who made a confession that she wanted to marry with the deceased whereas her parents were

against this marriage. On the basis of her confessional statement, one frock and one dupatta was recovered. The contents of the disclosure and

recovery memo are true and correct. On cross examination, stated that he came to know from confession that accused and deceased were seen

together and there was no other evidence. The confessional statement might have been written by the Investigating Officer of SIT. He has not

recorded the same, however, it was recorded in his presence. The scarf might have been seized by the Investigating Officer, Mohd Iqbal on

19.06.2015. During investigation two scarfs were seized. He has not recorded statement of any witness either under Section 161 Cr.P.C. or under

section 164-A Cr.P.C. Recovery memo has not been prepared by him but the same has been prepared in his presence. The whole investigation in the

case has either been conducted by Sub Inspector Iqbal or Sub Inspector Bashir Ahmad but under his supervision. During investigation, only evidence

collected against the accused was the confessional statement and opinion of the doctor.

PW-30 Sub Inspector Bashir Ahmad stated that he was transferred from Police Station, Qazigund to Police Station, Kulgam in the year, 2015 and

he was appointed as member of the SIT on 09.09.2015. He recorded the statement of the accused persons whereas the confession of Aafia Jan was

recorded in his presence who accepted that his father, brother along with other accused committed murder of deceased. Frock and dupatta were

recovered on the disclosure of Aafia Jan. On cross examination, he has stated that he seized one dupatta and one frock during investigation. He did

not remember whether any scarf has been seized during earlier investigation. He seized same scarf during investigation which was around the neck of

deceased in photograph on file. The same scarf was recovered at the instance/disclosure of Aafia Jan. He saw the photograph and he recognized the

same. Offence under section 120-B RPC was added only after the confessional statement of Aafia Jan. Aafia Jan was arrested on 09.09.2015 and

her age was below 18 years. He did not know whether the statement of juvenile was to be recorded by court and she was to be produced before the

magistrate.

This is the whole of the evidence led by the prosecution in support of charge. The incriminating circumstances were put to the respondents-

accused in which they stated that the false statements have been made against them in order to implicate them in a false and frivolous case. They

have also stated that neither Aafia Jan has made a confessional statement nor any item has been recovered.

After hearing prosecution as well as defence, the learned trial court vide judgment dated 03.05.2018 acquitted the respondents.

Ms. Asifa Padroo, learned AAG, appearing for the appellants while assailing the judgment has reiterated the grounds taken in the memo of appeal

and has submitted that the trial court has ignored the disclosure/confessional statement made by Afia Jan despite the fact that all the witnesses to the

disclosure memo had proved the same. More so, she laid much stress upon the statement of Wazeera, Irshada and Beauty Jan.

On the contrary, Mr. S. M. Ayoub, learned counsel for the respondents has vehemently argued that the prosecution has miserably failed to prove

its case and even the disclosure statement, upon which much reliance has been placed by the learned counsel for the appellant, was not proved. He

also submits that the witnesses have made contradictory statements which clearly prove that the respondents were roped in a case on false and

frivolous grounds.

Heard learned counsel for the parties.

Before appreciating the evidence as well as evaluating the judgment passed by the trial Court and considering the arguments advanced by the

learned AAG, it would be appropriate to consider the scope of interference with regard to acquittals recorded by the trial Courts. The Apex Court in

the case of “Sambhaji Hindurao Deshmukh v. State of Maharashtra,â€​ reported in (2008) 11 SCC 186 has held:

“13. The principles relating to interference by the High Court in appeals against acquittal are well settled. While the High Court can review the

entire evidence and reach its own conclusions, it will not interfere with the acquittal by the trial court unless there are strong reasons based on

evidence which can dislodge the findings arrived at by the trial court, which were the basis for the acquittal. The High Court has to give due

importance to the conclusions of the trial court, if they had been arrived at after proper appreciation of the evidence. The High Court will interfere in

appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two

views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to

reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible

makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit

of doubt (vide Ganesh Bhavan Patel v. State of Maharashtra [(1978) 4 SCC 371 : 1979 SCC (Cri) 1] , Babu v. State of U.P. [(1983) 2 SCC 21 : 1983

SCC (Cri) 332] , Awadhesh v. State of M.P. [(1988) 2 SCC 557 : 1988 SCC (Cri) 361] , Thanedar Singh v. State of M.P. [(2002) 1 SCC 487 : 2002

SCC (Cri) 153] and State of Rajasthan v. Raja Ram [(2003) 8 SCC 180 : 2003 SCC (Cri) 1965] ). Keeping the said principles in view, we will

examine the evidence to find out whether the findings of the trial court were not based on evidence and whether there was justification for the High

Court to interfere with the decision of the trial court.â€​

Keeping the scope of interference in acquittal appeals in mind, as laid down in the judgment (supra), We would appreciate the contentions raised

by the appellant in the present appeal. Learned counsel for the appellant has raised much stress upon the confessional/disclosure statement made by

Aafia Jan. Since the disclosure statement was made in Kashmiri language, so Ms. Padroo furnished the translated English version of the statement of

Aafia Jan that is reproduced as under:

“I am resident of Okey. I and Altaf had been having love affair for the last three years. Altaf is also the resident of village Okey. On 18th June

2015, I called Altaf on Sayyar Moom‟s (Maternal Uncle) Orchard in the evening thereafter I took Altaf to the second storey of the house in a room

on right side. My and Altaf‟s affair was not liked by my father, Gani Bhat, Brother Abbas Bhat, Mother Nafisa Uncle namely Rashid Bhat, Rehman

Bhat, Gh Mohd Bhat, Hassan Bhat and Hamidullah Bhat cousin brothers namely, Ishtiaq Bhat, Ishfaq Bhat and Aaquib Bhat and two mamaus

(maternal uncle namely Sayar Bhat and Ammer Ullah Bhat, maternal cousin namely, Murtiza Bhat. In the meantime, all the above named persons

came into the room and thereafter my father and brother gauged the Altaf‟s mouth with my Dupatta and frock and Altaf succumbed to death in the

room. Thereafter we will took the dead body of Altaf to Sayarmamoos orchard and hanged the dead body with her dupatta on an Apple tree during

night thinking that people would think that Altaf had committed suicide. I have kept the dupatta and frock with which Altaf was suffocated in the room

which I can show and recover.â€​

A perusal of the disclosure/confessional statement made by Aafia Jan reveals that it consists of two parts. The first part points towards the

confession made by Aafia Jan in which she has shown the complicity of the accused persons mentioned in the disclosure memo in the commission of

offence as also of herself regarding the taking of the deceased to the second storey of the house and the other part points towards the dupatta and

frock regarding which she stated that she can show and recover the same. So far as the first part of the disclosure statement is concerned, the same

is not admissible in evidence as the same amounts to confession in police custody. The first part can neither be read against the maker nor against the

other accused. Reliance is placed upon the decision of Apex Court in Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828. The relevant

paragraph 15, is extracted as under:

“15. Having cleared the ground, we will now consider, in the light of the principles clarified above, the application of Section 27 to this statement of

the accused. The first step in the process was to pinpoint the fact discovered in consequence of this statement. Obviously, in the present case, the

threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the musafirkhana, Crawford Market, wherein they lay deposited,

and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible

from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal

evidence and not the rest which must be excised and rejected. Thus processed, in the instant case, only the first part of the statement viz. “I will

tell the place of deposit of the three chemical drums†was the immediate and direct cause of the fact discovered. Therefore, this portion only was

admissible under Section 27. The rest of the statement, namely, “which I took out from the Haji Bunder on first Augustâ€, constituted only the past

history of the drums or their theft by the accused; it was not the distinct and proximate cause of the discovery and had to be ruled out of evidence

altogether.â€​

So far as other part, regarding the disclosure about the dupatta and frock are concerned, the same pertain to the disclosure of facts and they are

admissible in evidence provided the recovery is also effected pursuant to the disclosure/confessional statement.

The first issue that requires to be considered is as to whether such disclosure statement was made by the Aafia Jan and secondly as to whether

the recovery has been effected pursuant to the said disclosure statement. A perusal of the disclosure memo reveals that the PWs Mushtaq Ahmad

Wani, Sayed Ahmad Paddar, Muneera Akhter, Mariama and Mohd Maqbool Mir have been cited as witnesses to the disclosure memo. So far as

Mohd Maqbool Mir is concerned, he has categorically stated that the police did not record the statement of Aafia Jan in his presence and he has no

knowledge what kind of statement she gave before the police. Similarly PW-Mushtaq Ahmad Wani has categorically denied that Aafia Jan made any

statement to the police in his presence. So far as the statement of Sayar Ahmad Bhat is concerned, he has stated that he received information at 8

AM that the body of the deceased was hanging in the garden of Sayar Bhat. He further stated he was close relative of the complainant and when the

police came on spot, they saw deceased hanging with scarf. The said scarf was seized by police. The scarf is same that has been shown to him in

court and he identifies it. He stated that the police did not go to the house of accused at that moment and further that Aafia Jan was arrested after

three days of the occurrence. On the next day of the arrest of Aafia Jan, she was brought to Okey for recovery. He has simultaneously stated that on

the next date of occurrence, he went to police station, where he saw Aafia Jan and on the same date she confessed and her confessional statement

was recorded by Head Constable Manzoor Ahmad. He took his signatures on it. As per his version, the statement of Aafia Jan was recorded on next

day after occurrence and he also stated that she was brought to Okey for recovery on the next day after her arrest after three days of occurrence. It

means that recovery was effected after four days of occurrence. A perusal of the disclosure memo shows that it was prepared on 09.09.2015 after

about three months of occurrence so in view of this, the statement of this witness is not reliable and he is not stating the truth and his testimony on the

face of it, is contrary to the disclosure statement shown to be recorded on 09.09.2015. PW Muneera Akhter has shown her ignorance about the

contents of the disclosure statement. She has categorically stated that she was sitting outside the room along with Aafia Jan for her watch and ward

and the officers were writing the statement inside the room. She categorically stated that she was not conversant with the Kashmiri language and also

she did not read the contents of the statement before appending her signatures on it because she did not know the Kashmiri language. She

simultaneously stated that the confession was not read over to her so her statement is also of no use. PW Maryama has also stated that the Public

Prosecutor has not read the whole confessional statement today but only half was read. She also stated that she did not read the confessional

statement at the time it was being written nor she had read the same before appending her signatures on it. Even the Investigating Officer did not read

over the statement to her. She has also stated that the recovered articles were not recovered in her presence because she did not go to the place of

recovery. She has denied the contents on the recovery memo. She categorically stated that the police took her signatures on disclosure memo and

recovery memo at the same time and the contents of the recovery memo are incorrect. So it is evident that the disclosure statement made by Aafia

Jan has not been proved by the prosecution. Once the disclosure statement has not been proved by the prosecution, the recovery of article pales into

insignificance. So far as the instant case is concerned, there is dispute even with regard to recovery of the dupatta as well, as Investigating Officer

PW-30 Bashir Ahmed, who was appointed as member of SIT, has categorically stated that he seized only one dupatta and frock during investigation

and he simultaneously stated that he seized same scarf during investigation which was around the neck of the deceased seen in the photograph on the

file and the same scarf has been recovered at the instance of disclosure statement of Aafia Jan. So there is serious dispute about the seizure of scarf

pursuant to the disclosure of Aafia Jan in view of the statement made by the witness Bashir Ahmad because the scarf seized by him was same with

which Altaf wani deceased was found to be hanging. Thus the prosecution has miserably failed in proving the disclosure statement and also the

recovery of the scarf/dupatta.

The other defect in the prosecution case is that the statement of Investigating Officer PW-27 Sub Inspector Mohd Iqbal reveals that the statement

of the witnesses either under section 164-A Cr.P.C. or 161 Cr.P.C. have been recorded after inordinate delay and he has not been able to

demonstrate as to why the statement of the witnesses were recorded after inordinate delay. It is settled law that once statement of witnesses was

recorded after inordinate delay and the delay is not explained, statements of those witnesses are doubtful. It becomes relevant particularly in view of

the fact that the Investigating Officer PW-28 has admitted that only evidence collected against the accused was the confessional statement and the

opinion of the doctor. Reliance is placed upon the decision of the Apex Court in case titled “Shahid Khan vs. State of Rajasthan†reported in

2016(1) Crimes 261(SC) and the relevant para is extracted as under:

“11. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is

forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the

occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the

investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be

introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their

unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their

evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of

the Appellants. The High Court has failed to advert to the contentions raised by the Appellants and re-appreciate the evidence thereby resulting in

miscarriage of justice. In our opinion, the case against the Appellants has not been proved beyond reasonable doubt.â€​

Much stress has been laid on the testimony of PW No. 12 Mst Wazeera that she visited the house of Gani Bhat after 11 PM and found the

movement of 10/20 men and further that she identified all the persons through glass, who were moving inside. She went to the door of house of Gani

Bhat but did not go inside. She further stated that she was accompanied by Nadeema and it was Nadeema who called the wife of Gani Bhat outside

the house and wife of Gani Bhat replied that Aafia was at home but she did not see the deceased. On the contrary PW No. 7 Nadeema, who

admittedly accompanied PW-12 Wazeera, has stated that she and Wazeera went to house of Gani Bhat. Wazeera sat on the bank of river and she

went to the house of Ghani Bhat. Wife of Ghani Bhat opened the door and she replied that Aafia was sleeping. Wazeera was sitting at the bank of

river 20 feet away from the house of Ghani Bhat. She also stated that she did not see any body in the room where light was on. Both the witnesses

are making contradictory statements to each other with regard to same facts and as such no reliance can be placed upon the testimony of PW 12

Wazeera who is related to the complainant and deceased, who may have reason to depose against accused. On the contrary PW-7 Nadeema is

neither related to deceased nor complainant and she has no reason to depose contrary to PW 12 Wazeera. Reliance is placed on decision of the

Supreme Court in Sudhakar v. State, reported as (2018) 5 SCC 435.

“19. We further find, to a certain extent, material infirmities, irregularities and contradictions in the prosecution case as also in the evidence of the

prosecution witnesses including the deposition of PWs 1 and 5, who are material witnesses. PW 1 in his cross-examination categorically stated that his

wife (PW 5) has filed a suit for partition against the accused and his family members whereas PW 5 in her cross-examination denied the same.

Likewise, there are contradictory statements of witnesses, primarily to the aspect of happening of incident, taking the victim to the hospital, the

presence of PW 1 at the time of alleged incident, detaining the accused from bus-stand or from his mother-in-law's house, recovery of material objects

from the possession of the accused and lodging of complaint by PW 1, etc.; and the whole story appears to be an utterly incredible one. More so,

there was no explanation forthcoming from the prosecution side on the questions raised by the defence that soon after reaching ABC Hospital with

victim, how can PWs 1 and 5 directly approach Dr Mohammed Ghouse Khan (PW 8) without going to emergency ward and why the doctors at ABC

Hospital did not inform the police when it was a medicolegal case. Both the courts below have simply noted that the variations and contradictory

statements are not material in proving the guilt of the accused. We feel that the reasoning given by the courts below is ex facie illegal.â€​

It was also vehemently argued that the deceased was last seen in the company of Aafia Jan and PW10 Irshada, as stated by PW 16 Beauty Jan.

PW Beauty Jan is the sister of the deceased and if her testimony is to be believed that her brother entered the compound of Mst. Irshada, where Mst

Irshada and Aafia Jan were talking with each other. Aafia and Irshada put their arms on the shoulder of the deceased and he was taken to the other

side of the river. Thus, her version is contrary to prosecution story and testimony of PW-10 Irshada who stated that she went to stream. When she

was sitting one side, Afia was sitting at other side. She called Afia there. She told Aafia that she will call deceased Altaf on her phone. She gave a

missed call and then Altaf called. Thereafter, conversation took place between Irshada and Altaf and then between Altaf and Aafia but Irshada

expressed ignorance about the nature of conversation between Altaf and Aafia. Irshada also stated that Altaf told Aafia to come to garden and

thereafter Aafia went to her home and she also went to her home. Thus the statement of PW 10 Irshada clearly negates the testimony of PW-16

Beauty Jan, who happens to be the sister of deceased.

Learned AAG has not been able to convince this Court that the opinion formed by the learned trial court is perverse and contrary to the facts

proved by the prosecution. No doubt the powers of the appellate court in appeal against acquittal are no less than in an appeal against conviction, but,

where on the basis of evidence on record two views are reasonably possible, the appellate court cannot substitute its view in place of that of the trial

court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record

and in deducing conclusion therefrom, the appellate court can interfere with the order of acquittal.

For all what has been discussed above, the learned trial court while appreciating the evidence has rightly come to the conclusion that the

respondents are required to be acquitted. We have also perused the judgment passed by the trial court and we find that the finding recorded by the

trial court can neither be termed as perverse, contrary to the evidence nor erroneous, therefore no case for interference is made out. In the result, this

appeal being without any merit is hereby dismissed.