Wasim Ahmed vs State of J&K

The present appeal has been preferred by the convict, Wasim Ahmed, who has been convicted under Section 302 RPC for having committed

the murder of Mohd Hamid on 15.11.2008. The conviction order was passed by the Principal Sessions Judge, Samba, in File No. 11/Sessions on

28.02.2012. The appeal is also directed against the order on sentence of the same date, that is, 28.02.2012, whereby the appellant was sentenced

to life imprisonment and fine of Rs. 20,000/- for the offence under Section 302 RPC. In default of payment of fine, he was required to undergo six

months imprisonment. The sentence of life imprisonment is, of course, subject to confirmation of this Court and, consequently, the accompanying

confirmation reference has been made by the learned Principal Sessions Judge, Samba, to this Court.

The case arose out of FIR No. 140/2008 registered at Police Station Bari Brahmana under Section 302 RPC dated 15.11.2008.

The prosecution case is that on 15.11.2008, the complainant, Girdhari Lal, filed a written compliant in Police Station, Bari Brahmana, to the

effect that he had taken a shop on rent near SIDCO office where he does the work of Motor Winding and that, he has kept a servant, namely,

Mohd Hamid. It is further the case of the prosecution that on 14.11.2008, the said Girdhari Lal, as usual, gave money to Mohd Hamid on closure

of the shop. The room on the top of this shop had been taken on rent by the appellant, Wasim Ahmed where he resided. It is further the case of

the prosecution that Wasim Ahmed works as a labourer in a factory. As per the prosecution, Girdhari Lal in his compliant stated that in the

morning, that is, on 15.11.2008, the appellant Wasim Ahmed came to him and informed him that he was working at night in the factory and that he

had gone to the factory after closing his room. However, when he returned at 7.30 a.m., he saw that the door of his room was closed but the lock

had been broken. On opening the door, he saw Mohd Hamid lying dead in the room and his body was drenched in blood. On receiving such

information, the said complainant, Girdhari Lal, is said to have gone to the spot and noted that Mohd Hamid had been murdered by some

unknown person. On receipt of the said written complaint of Girdhari Lal, the said FIR No. 140/2008 for the offence under Section 302 RPC was

registered at the above Police Station, that is, Bari Brahmana.

On completion of investigation, the Investigating officer came to the conclusion that Mohd Hamid had been murdered by the appellant, Wasim

Ahmed, by hitting him on the head with an iron ''tawa'', which was allegedly recovered at the instance of the appellant, after he had made an

alleged disclosure statement in this regard. Consequently, the challan was presented against him for the offence under Section 302 RPC. The

appellant was charged for the said offence. He pleaded innocence and claimed trial.

The prosecution examined as many as 15 witnesses. The statement of the appellant was recorded under Section 342 Cr.P.C. The defence did

not lead any evidence. After considering the evidence on record and the arguments advanced on the part of the prosecution and the defence, the

trial Court, which is evident from paragraph 29 of the impugned judgment, observed that the entire case hinges entirely on circumstantial evidence,

namely:-

(1) recovery of the dead body of Mohd Hamid from the room in which Wasim Ahmed ( the appellant herein) was residing; and

(2) the disclosure statement of the appellant regarding the alleged weapon of offence and subsequent alleged recovery of the alleged weapon of

offence at the instance of the appellant.

In this case the alleged weapon of offence is a ''tawa''. It is important to note at this juncture itself that these were the only two circumstances

which were considered by the trial Court and on which the prosecution case rested.

Insofar as the first circumstance is concerned, the trial Court came to the conclusion that the prosecution had been able to prove that the dead

body of Mohd Hamid was found in the room, which was in the exclusive occupation of the appellant, Wasim Ahmed. Therefore, in the opinion of

the learned trial Court, the burden of proof shifted on to the accused (the appellant herein), to establish as to under what circumstances the death

of Mohd Hamid was caused. Reliance was placed on Section 106 of the Indian Evidence Act, 1872 and it was concluded that the accused (the

appellant herein) had failed to discharge this burden and, therefore, this circumstance stood established against the accused/appellant herein and

was sufficient to convict him for the offence of murder.

Insofar as the second circumstance of the alleged disclosure statement and alleged subsequent recovery of the alleged weapon of offence

(tawa), the trial Court held that, looking to the testimony of PW-9, Zakir Hussain, considerable doubt arose regarding the recovery of the alleged

weapon of offence. It further observed that thus, absolute reliance could not be placed on the disclosure statement and the alleged recovery made

in pursuance of the alleged disclosure statement.

In other words, out of the two circumstances on which the prosecution case hinged entirely, one of them, that is, the alleged disclosure statement

and the alleged recovery of the weapon of offence, was not established, even in the opinion of the trial Court,by the prosecution.

The trial Court, left with the only circumstance of the recovery of dead body of Mohd Hamid in the room in which accused/appellant Wasim

Ahmed was residing, relying on this circumstance alone, concluded that, within all human probability the murder of Mohd Hamid was committed

by the accused alone and none else.

The learned counsel for the appellant submitted that misplaced reliance has been put on Section 106 of the Indian Evidence Act, and the same,

could not have been employed, in the facts of this case, to render a decision of guilt and convict the appellant on the basis of that alleged

circumstance alone, for the offence of murder of the deceased Mohd Hamid. It was further submitted by the learned counsel for the appellant that

the witnesses to the so called disclosure statement and the recovery of the alleged weapon of offence were related witnesses, namely, PW-2,

Bashir Mohammad (who was the brother of the deceased) and PW-9, Zakir Hussain ( who was the cousin of the deceased). He further submitted

that, in any event, the prosecution has not been able to prove the purported disclosure statement or the alleged recovery, as recorded by the trial

Court itself.

It was further submitted on behalf of the appellant that no motive has been alleged or established by the prosecution. It was alsosubmitted that

though PW-8, Girdhari Lal, the complainant, had stated that the appellant ( Wasim Ahmed) and one Jagan Nath had come to him and informed

him about the factum of the dead body of Mohd Hamid lying in the room of Wasin Ahmed, Jagan Nath has not been produced by the prosecution.

It was further submitted that the prosecution has not done all that it could do to discharge its burden and, therefore, there could not be any shifting

of the burden upon the accused by employing Section 106 of the Indian Evidence Act, 1872. In this regard it was submitted that, Jagan Nath was

not produced by the prosecution; no finger prints were taken from the ''tawa'', ( the alleged weapon of offence) when, PW-15 Tilak Raj, the

Investigating officer, admitted in his cross examination that the said ''tawa'' had a handle and admitted that no finger prints were taken. The

important piece of evidence that the ''tawa'', which was allegedly recovered, was in fact the murder weapon, has also not been established by the

prosecution. The learned counsel further submitted that there is no discussion by the trial Court with regard to the Forensic Science Laboratory

reports which have been exhibited as exhibit MR and exhibit MR/1. The prosecution has also failed to establish as to whether the ''hair'' which was

allegedly found in the clenched fist of the deceased Mohd Hamid matched the hair of the accused (the appellant herein). This is all the more

relevant because, as per the prosecution, the hair found clenched in the fist of the deceased was taken by the Assistant Scientific Officer, FSL,

PW-6 Ram Pal Sharma. The samples of the hair lying on the pillow were also taken and a sample of the hair of the accused/appellant herein was

also taken. As per the learned counsel for the appellant, the FSL report for matching the hair samples is available but the prosecution has not

produced the same. According to the learned counsel the hair picked up from the pillow and taken from the fist of the deceased Mohd Hamid

were found to be similar but these were found to be dis-similar with the hair sample taken from Wasim Ahmed/appellant herein. Anyhow, we need

not examine this last aspect, because that FSL report for matching the hair samples is not part of the evidence. What happened to it and why it was

not produced by the prosecution, are questions which remain un-answered.

It was also submitted on the part of the learned counsel for the appellant that, no amount of surmise, conjuncture or probability can take the

place of proof beyond reasonable doubt. It was submitted that the learned trial Court came to the conclusion that it did, not on the basis of proof

beyond reasonable doubt, but, merely on the basis of surmise, conjuncture or probability, and, therefore, cannot be sustained by any stretch of

imagination.

The learned counsel for the State supported the trial Court judgment entirely and submitted that Section 106 of the Indian Evidence Act was

clearly applicable in the facts of the present case, once it was established and proved that the dead body of Mohd Hamid was recovered from the

room which was in the exclusive possession of Wasim Ahmed, and that, Mohd Hamid had been murdered in that room itself. It was submitted

that, the moment this was established by the prosecution, the burden of proof was on the accused/appellant herein to establish as to under what

circumstances the death of the deceased was caused. Since this burden was not discharged by the appellant, he was correctly convicted and

punished under Section 302 RPC for having committed the murder of Mohd Hamid.

From the above, it is evident that the prosecution case, as pointed out by the trial Court, hinged entirely on circumstantial evidence and, that

too, on two circumstances. The first being the recovery of the dead body of Mohd Hamid in the room in which Wasim Ahmed was residing and

the second being the alleged disclosure statement and alleged consequent recovery of the alleged weapon of offence (tawa).

We need not dilate much on the second circumstance because the disclosure statement and the recovery of the alleged weapon of offence

''tawa'' has been, and in our view, correctly disbelieved by the trial Court itself. Since the alleged recovery, which was pursuant to the alleged

disclosure statement, itself has been denied by PW-9- Zakir Hussain, serious doubts have been put on the entire issue of the disclosure statement

and recovery of the alleged ''tawa''. Without the discovery of any fact pursuant to an alleged disclosure statement, the latter would be of no

consequence, even if established.

In the present case, PW-9, Zakir Hussain, who is the cousin of the deceased and is a related witness, himself stated that he did not know from

where the ''tawa'' was recovered. This puts paid to the prosecution story with regard to the disclosure statement (exhibit P/4) and the alleged

recovery of ''tawa''. Thus, as per the evidence on record, there is no disclosure statement; there is no recovery of ''tawa''; and, there is no weapon

of offence.

Before we examine the only surviving circumstance, that is the recovery of the dead body of Mohd Mahid in the room in which Wasim Ahmed

was residing, we would like to point out that a very important circumstance has been completely missed by the trial Court.

It will be seen from the testimony of PW-6, Ram Pal Sharma, Assistant Scientific Officer, FSL, Jammu, that hair lying on the pillow was seized

as per seizure memo exhibit-P3 and hair found in the right fist of the deceased was seized as per seizure memo exhibit P3/1. PW-8, Girdhari Lal,

confirms these seizure memos. PW-15, Tilak Raj, who is the Investigating officer, also establishes that hair from the pillow was picked by the FSL

team as per exhibit P3 and the hair found in the right fist of the deceased was taken as per seizure memo exhibit P-3/1. PW-15, Tilak Raj also

establishes that the hair sample of the accused was also seized by virtue of seizure memo exhibit P-1/1. It is astonishing to note that though these

hair samples were taken, there is no FSL report in respect of them on record. The prosecution has not produced any such report. In fact, there is

no report with regard to the blood picked up from the place of occurrence vide exhibit P-3/2, the lock (exhibit P2/4) or the cloth from the bedding

( exhibit P2/5). It is astounding that instead of reports pertaining to these, in this case there are two FSL reports which have been marked as

exhibits MR and MR/1, which have been produced by the prosecution and have been proved by PW-14, Mool Raj, who is an official of the

Forensic Science Laboratory, Jammu,. Interestingly, exhibit MR, which is a report dated 21.04.2009 bearing No. 312/FSL-J, pertains to a case

under Section 174 Cr.P.C vide DD No. 4 dated 19.02.2009 at Police Post Rakh Amb Tali, Police Station, Samba. It will be pertinent to note at

this juncture that the present case relates to FIR No. 140/2008 registered at Police Station, Bari Brahmana dated 15.11.2008. Obviously, the

report,exhibit MR, has nothing to do with this case. In fact, if one were to examine the testimony of PW-14, Mool Raj, in some detail, it would be

evident that the report exhibit MR pertains to four packets which were produced before him through Head Constable Kuldeep Raj. Those packets

were marked with the letters ''A'', ''B'', ''C'' and ''D''. The packet marked ''A'' contained stained clay with pebbles and was marked by the FSL as

B-127/09. The packet marked ''B'' contained unstained clay and was marked by the FSL as B-128/09. The packet marked ''C'' contained a

stained stone and was marked by the FSL as B-129/09 and packet ''D'' which contained a stained gauze piece was marked by the FSL as B-

130/09. The reports in respect of these was that the stained clay with pebbles was ''disintegrated'', the unstained clay was ''unstained'' and the

stained stone and stained gauze piece indicated human blood of blood group ''B''.

It is nobody''s case that in the present case that any of the aforesaid items were recovered, namely, stained clay with pebbles, unstained clay,

stained stone and stained gauze piece. Clearly, this report (exhibit MR) pertained to some other case and not this case!

To aggravate the position even further, exhibit MR/1 would revealthat one more packet marked ''E'' was received by PW- Mool Raj and the

report in respect thereof was exhibit MR/1 bearing No. 311/FSL-J dated 21.04.2009. This packet was said to have contained a stained cream

coloured ''dupatta''. No such recovery is mentioned by the prosecution in this case. Moreover, the said Packet ''E'', which contained the stained

cream coloured ''dupatta'', pertained to FIR No. 43/2009 under Section 302/34 RPC registered at Police Station, Samba. That was an entirely

different case. The FIR in the present case was FIR No.140/2008 and was registered at Police Station, Bari Brahmana, under Section 302 RPC

alone and, that too, not at Police Station, Samba.

We have examined the above two FSL reports, exhibit MR and exhibit MR/1 in detail to show the gross negligence on the part of the

prosecution in producing reports pertaining to another case and proving them in this case. This fact alone is indicative of the casual and non-serious

approach on the part of the investigation as also the prosecution in dealing with a serious case of murder. We are afraid that even the trial court did

not notice that the said reports, exhibit MR and exhibit MR/1, did not even pertain to the present case. This is in the backdrop of the important

questions which arise as to what happened to the hair samples which were picked from the pillow, from the fist of the deceased and from the

accused. It is obvious that the prosecution has not discharged its burden on this aspect of the matter and has not produced the evidence which it

could, through due diligence, have produced. This is an important circumstance as would be evident when we take up the discussion of the

applicability of Section 106 of the Indian Evidence Act, 1872.

The learned counsel for the appellant had placed reliance on a decision of the Supreme Court in the case of ShambhuNathMehra v. State of

Ajmer: AIR 1956 SC 404. Section 106 of the Evidence Act was considered in that case and the Supreme Court laid stress on the word

''especially'' appearing in that provision. Section 106 of the Evidence Act, 1872, is reproduced herein below:-

Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving

that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving

that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

The Supreme Court observed that Section 106 was an exception to Section 101 which laid down the general rule with regard to burden of proof

as under:-

Burden of proof.-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he

asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the

crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B

denies, to be true.

A must prove the existence of those facts.

In the context of the above two provisions, the Supreme Court held as under:-

This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to

relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate

disproportionately difficult, for the prosecution to establish facts which are ""especially"" within the knowledge of the accused and which he could

prove without difficulty or inconvenience.

The word ""especially"" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted

otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the

murder because who could know better than he whether he did it or did not.

(underlining added)

Referring to Illustration (b) to Section 106, the Supreme Court observed that, an illustration does not exhaust the full content of the Section

which it illustrates but equally, it can neither curtail nor expand its ambit. Importantly the Supreme Court held:-

..... if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts

cannot be said to be ""especially"" within the knowledge of the accused.

This observation and view of the Supreme Court is of extreme importance in the present case. The prosecution could have lifted the finger

prints from the handle of the ''tawa'', which it did not; The prosecution could have submitted the report with regard to the matching of hair lifted

from the pillow, from the fist of the dead body and taken from the accused. It did not do this either. Rather than the exercise of due diligence on

the part of the prosecution, it produced and proved FSL reports exhibit MR and exhibit MR/1, which did not even pertain to this case. Finally,

Jagan Nath, who would have been a very important witness, was not even questioned or produced before the Court. If the finger prints on the

''tawa'' had been analyzed and they matched with those of the accused; if the hair on the fist of the dead body and the hair taken from the accused

had matched and established through the relevant FSL reports; and, Jagan Nath would have explained as to how and in what circumstance he and

Wasim Ahmed had reported the fact of the dead body of Mohd Hamid having been discovered in the room of Wasim Ahmed to PW-8,

GirhdariLal, then we could, perhaps, have said that the prosecution had exercised due diligence. All these circumstances, if established by the

prosecution, would have certainly linked the accused with the crime. But, in the absence of exercise of due diligence, in our view, based on the

decision of the Supreme Court in the case of Shambhu Nath Mehra(supra), the burden under Section 106 cannot be foisted on the

accused/appellant herein.

We may also note at this juncture that the prosecution case itself, as per the complaint, is that, Wasim Ahmed/the appellant herein, was a

labourer in a factory and he had gone to work in the night shift and locked his room when he left andthat it is only in the morning when he returned

at 7.30 a.m that he found his lock broken and the dead body of Mohd Hamid in his room. The Investigating officer could have and ought to have

gone to the factory where the accused worked and ought to have taken out the attendance register or any other document to indicate and establish

as to whether the accused/appellant hereinhad worked in the factory in the night intervening 14th/ 15th February, 2008. This, also, he did not do.

All these facts were not impossible to establish and were not disproportionately difficult for the prosecution to establish and, therefore, Section 106

cannot, in our view, be pressed into service to relieve the prosecution of its duty particularly when, in a criminal case, the burden of proof is always

on the prosecution.

The learned counsel for the appellant also referred to the Supreme Court decision in the case of Joydeb Patra and ors v. State of West Bengal:

AIR 2013 SC 2878, where the Supreme Court held as under:-

8................ This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it

is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian

Evidence Act to establish that he was not guilty............

In that decision, the Supreme Court also referred to its earlier decision in the case of Sucha Singh v. State of Punjab: (2001) 4 SCC 375,

where the Supreme Court observed that Section 106 of the Evidence Act was not intended to relieve the prosecution of its burden to prove the

guilt of the accused beyond reasonable doubt. The Court held that the Section would apply only to those cases where the prosecution had

succeeded in proving facts from which a reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by

virtue of special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.

Another Supreme Court decision in the case of Vikramjit Singh v. State of Punjab: (2006) 12 SCC 306, was also referred to, which was in

similar vein.

The learned counsel for the State referred to the decision of the Supreme Court in the case of State of Rajasthan v. Kashi Ram: (2006) 12

SCC 254. That was a case in which Section 106 of the Indian Evidence Act, 1872, was employed and it was held that since the accused had

failed to give a proper answer other than a bald denial, this circumstance provided a ''missing link'' in the chain of circumstances which provedthe

guilt of the accused beyond reasonable doubt.Several earlier decisions of the Supreme Court were referred to in Kashi Ram (supra) and it was

observed as under:-

It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are

unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon

him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an

explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to

offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the

Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed

on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a

criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are

especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his

failure to adduce any explanation, as an additional link which completes the chain.

(emphasis added)

The above decision does not help the prosecution in the facts of the present case, but, it highlights a very important aspect. Section 106 has

been held to be available but only as an ''additional link'' in the chain of circumstances proved against an accused. In the present case, we find that

there is no chain of circumstances and the factum of recovery of the dead body of Mohd Hamid in the room in which Wasim Ahmed was residing

is the only circumstance. It is not an additional link or a missing link as contemplated by the Supreme Court decisions. There are no other links or

circumstances and there is no other chain. In fact, the trial Court has observed that within ''all human probability'' the murder of Mohd Hamid was

committed by the accused. This statement also clearly establishes the fact that the prosecution case remains within the realm of probabilities and

does not transcend to the state of proof beyond reasonable doubt.

In the aforesaid circumstances, we are of the view that the burden under Section 106 of the Indian Evidence Act, 1872, cannot be foisted on

the accused/appellant herein in this case.

There was so much within the power of the investigation/ prosecution which could have been done, and, which it did not do. For instance, no

motive has been alleged and, therefore, there is no question of it being proved. Jagan Nath has not been produced, though he is a prominent

person in the prosecution story. Finger prints were not lifted from the handle of the alleged weapon of offence (tawa). It has not even been

established that the ''tawa'' was recovered at the instance of the accused and pursuant to an alleged disclosure statement. In fact, the trial Court

itself held the alleged recovery and disclosure statement to be doubtful and unreliable. The matching of hair and the reports in respect thereof have

not been produced by the Investigating officer or the prosecution. What happened to those reports, if any? Why were the FSL reports, exhibit MR

and exhibit MR/1 introduced in this case and proved by PW-14, when they pertained to entirely different case(s). Even the alleged murder

weapon (tawa) was not shown to the doctor who conducted the postmortem examination to indicate whether it could have been the murder

weapon. There are many un-answered questions in this case. The investigation has been conducted in a very shoddy manner and the prosecution

has been completely remiss in its duty in proving its case.

There is a great deal of doubt with regard to the complicity of the appellant herein and the benefit must go to him.

Consequently, the impugned judgment is set aside and, obviously, the sentence awarded is also set aside. The appeal is, therefore, allowed and

the confirmation reference stands answered accordingly. The appellant, who is under incarceration in Central Jail, Kot Bhalwal, Jammu, is directed

to be released forthwith by the Superintendent of the concerned Jail.