Jammu & Kashmir High Court – Srinagar Bench
Kamal Jeet Singh @ Rinku vs Ut Through Ps Beerwah on 20 December, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
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IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH, AT SRINAGAR
CrlA (D) No. 43/2022
c/w
CRRef No. 13/2016
Kamal Jeet Singh @ Rinku ... Appellant
Through M.A. Wani, Ld. Adv. With Mr. Z.A.Wani. Adv, Mr.
Saleem Gul. Adv. And Mr. Rahil Habib, Adv.
Versus
UT through PS Beerwah ... Respondent
Through Mr. Alla-Ud-Din Ganai, Ld. AAG
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
HON'BLE MR. JUSTICE JAVED IQBAL WANI
ORDER
This appeal has been filed against the judgement of
conviction dated 10/12/2016, passed by the Court of the
Ld. Principal Sessions Judge, Budgam in file No.
139/session by which the Ld. Trial Court held the
appellant guilty of an offence u/s. 366. 342, 376 and s.302
of the Ranbir Penal Code (hereinafter referred to as “RPC)
and vide order of sentence dated 15/12/2016, was
sentenced to suffer rigorous imprisonment for life and was
also liable to fine of Rs. 30,000/- (rupees thirty thousand)
and Rs. 45,000/- (rupees forty five thousand) for the
offences punishable u/ss. 376 and 302 of the RPC.
Yasmeen Rashid
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2. The evidence has been appreciated on the basis of the
translation given in the Trial Court order as the original
evidence before the Trial Court has been recorded in Urdu
by hand, a language that the author of this judgement
(Atul Sreedharan J.) is not conversant with. The accuracy
of the translation given by the Ld. Trial Court has not been
disputed by the counsel for the appellant or UT.
3. The brief facts of the case are as follows. The appellant is
a resident of Attina Beerwah in district Budgam and works
as a bus conductor in Jammu. The case of the prosecution
is that on 04/10/2002, the complainant Jodh Singh
(PW1), a resident of Atina Beerwah, Budgam, lodged a
written missing report at PS Beerwah stating that on
03/10/2002, his two minor granddaughters whose names
are not being mentioned herein but are referred as D1 aged
about six years and D2 aged about three years, returned
home from their school at 4 PM and thereafter, the
children, wearing their school uniform went towards the
local Gurudwara but did not return thereafter.
4. A search was conducted by the SHO of the PS who is also
the IO of this case. He was accompanied by witnesses at
serial number 19 to 24 of the challan, and they reached
village Attina where the members of the Sikh and the
Muslim community joined the search operations which led
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to the discovery of the bodies of the two children recovered
from the house of a migrant Sikh named Jagdesh Singh.
The police took custody of the bodies which were identified
by PW1. The search of the scene of crime led to the
recovery of a steel glass having a small quantity of liquid
that appeared to be mustard oil. In the bottom portion of
the steel glass was inscribed in English the words “P.unit”
and “NPS”. also recovered from the scene of crime were two
small trousers, one underwear, one blanket and one sheet
having some stains. The police were of the opinion that
deceased were enticed, kidnapped and taken to the house
in question, kept under confinement and then murdered.
The SHO sent a docket to the PS for the registration of the
FIR.
5. The Executive Magistrate Beerwah was also requested to
join the investigation looking into the sensitive nature of
the case. The bodies were taken into custody by the police
and photographs of the scene of crime was taken. The
postmortem report revealed that both the girls had been
subjected to rape and that the oil that was found in the
glass, was also used in the commission of the crime. On
the basis of the postmortem report, the offence u/s. 376
RPC was also added. A search was made for other steel
glasses which bore resemblance to the steel glass seized
from the scene of crime (hereinafter referred to as the
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“SOC”). One steel glass was recovered from the house of
Aya Singh, the father of the appellant on which was
inscribed in English the words “N.P.S” and “P.unit” which
was identical to the inscription on the steel glass seized
from the SOC.
6. Upon interrogation of Narinder Paul Singh and the
appellant Kamal Jeet Singh, the two sons of Aya Singh, the
appellant is stated to have confessed to the police of having
committed the crime. He is stated to have told the police
that on the date of occurrence, at about 4.30 PM he found
the girls still in their school uniform, searching for their
mother. He enticed the girls and took them to the single
storeyed house of a migrant named Jagdesh Singh who is
the uncle of the appellant in relation and there he
committed rape on both the girls and thereafter murdered
them by throttling. He brought mustard oil from his house
in the absence of his family members in the steel glass.
After committing the offence, he jumped from the attic of
the house in the course of which he suffered injury on his
right knee.
7. Inspection of the attic from where the appellant had
jumped off revealed a cluster of human hair in the wooden
beam of the tin roof which was seized. A sample of the
appellant’s hair was also taken and sent to the FSL for
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analysis and matching. The FSL returned a finding of
similarity between the hair found at the SOC and the
sample hair of the appellant.
8. The alleged confession by the appellant to the police also
disclosed the tendering of an extra judicial confession by
the appellant to two maternal uncles named Tirath Singh
and Prahlad Singh and also to Mrs. Kulwant Singh, the
mother of the appellant. It is also the case of the
prosecution that the appellant made the confession before
the print and electronic media without any pressure. On
the basis of the confession by the appellant while in police
custody, an offence u/s. 176 RPC was also registered
against the mother and the two maternal uncles of the
appellant for not disclosing the offence committed by the
appellant despite the appellant having confessed to them.
Post investigation, the chargesheet was filed against the
appellant, his two maternal uncles and his mother.
9. Before this Court appreciates the evidence adduced, it
wishes to record that the case against the appellant is
based on circumstantial evidence. There is no witness who
has last seen the victims with the appellant shortly before
the went missing. There is one witness who has seen the
appellant drying his hair sitting in the veranda of the SOC.
There are witnesses who saw the appellant alone on the
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relevant date but not in the company of the victims. The
appellant is related to the owner of the house which is the
SOC as has been stated by several witnesses. Some of the
witnesses are also related to the owner of the house. One
witness who is also related to the owner of the house
stated in cross examination that he had access to the
house in question. Besides these witnesses, there is the
scientific evidence to reckon with which is the PMR and
the FSL reports.
10. PW1 is Jodh Singh. He is the grandfather of the victims.
He knows the appellant. In his examination in-chief, the
witness says that the father of the victims is Narinder Paul
Singh who was alive. He says that the victims were
students of Gangi Memorial Public School and that on
03/10/2002, the girls returned from school and enquired
about their mother. He says that he met the girls near the
house of one Prahlad Singh, when he was going towards
the Gurudwara. He asked the girls to go home. He also
states that he saw the appellant sitting at the shop of the
appellant’s muslim tenant and then he went to the
Gurudwara. He further says that he reached home at 4.30
PM and found that the girls had not reached home. He
searched till late into the night but could not find them
and early morning the next day, he filed a missing report
at PS Beerwah which is ExPW1/1. He says he even got the
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announcement made in the Friday prayer congregation
also. He says that the police recovered the bodies from the
house of the uncle of the appellant named Jagdesh Singh,
who was a migrant. He was a witness at the SOC and gives
details of the seizure of artefacts related to the crime such
as the trousers of the deceased, the steel glass containing
the oil. He has signed the identification memo of the
victims which is ExPW1/2. He has also signed the memo
relating to the possession of the bodies being taken by the
police which is ExPW1/3. He has also signed and proved
ExPW1/4 which is the seizure memo of the steel glass
containing the mustard oil. IN CROSS EXAMINATION,
the witness says that he has three sons and three
daughters. Narinder Paul Singh is his son (father of the
victims as stated by this witness in his examination in
chief) and is a 9th pass and before the incident, he was
running a canteen in the State Bank. He further says that
he takes tea in steel glasses purchased from the market.
He says that “the glass bears the words “NPS” written on
the same. That the name Narinder Paul Singh can also be
read from the said words” (the portion within inverted
commas is extracted ad verbis from the judgement of the
Ld. Trial Court). As regards the school of the victims, the
witness says that it is at a distance of fifty yards from his
home. The witness says that he was in the school when
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the deceased girls reached home and that he met the girls
when he was on his way to the Gurudwara. He says that
the people of his locality take tea in steel glasses of the
kind that was seized by the police. He says that when the
bodies were recovered, Deedar Singh and Narinder Paul
Singh were also present.
11. PW2 is Gurdeep Singh. He is a Special Police Officer. He
says that he knows the complainant and the appellant.
Narrating the events of 03/10/2002, he says that he was
having lunch at his home at about 4 PM when the victims
came to his house and enquired from him about their
mother to which he replied that he has not seen her. From
his home, the witness says he went to the Gurudwara.
Between 4 and 5, he heard a hue and cry that the girls
were missing. He says that he participated late into the
night in search for the missing girls and the next day
morning also he searched for the girls whose bodies were
found by the police in the house of Jagdesh Singh who
happens to be the uncle of the appellant. He says that the
bodies were in a denuded state inside a closed room and
an oil can and a steel glass containing edible oil and some
clothes lying in the scene were also seized. IN CROSS
EXAMINATION, the witness says that the deceased were
related to him being the daughters of his cousin. He
further states that he was posted at police lines Budgam
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on the date of occurrence and that his duty hours were
from 9 AM to 4 PM daily and that on 03/10/2002, he
reached home between 4 and 4.30 PM.
12. PW3 is Joginder Singh. In his examination in chief, the
witness deposed that he knows the accused and also
Narinder Paul Singh, the father of the victims. He has not
stated anything significantly different from PW 1 and 2, he
says that he was in Srinagar when he got the news about
the missing girls and returned to his village on
04/10/2002 and joined the search for the missing girls.
He also is a witness to the various memos of seizure made
by the police regarding the seizure of the bodies, steel glass
with oil, the oil can, the clothes and also the hair. He also
says that the police arrested the appellant from his own
house on 06/10/2002. He also says that the accused
made the disclosure to the police in his presence. IN
CROSS EXAMINATION, he has stated that the
complainant and the accused are both related to him. He
says that the house of Jagdesh Singh had three rooms. He
also stated that he used to go inside the said house even
before the incident as Jagdesh Singh was his relative.
13. PW4 is Narindra Paul Singh. He is the father of the
deceased children. He knows the accused. On
03/10/2002, he had gone for harvesting paddy and
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returned home by 4.30 PM. He was informed by his wife
that the girls were not home. He says he started searching
for them alone and then the people of the village also joined
in the search. The rest of his examination in chief has
remained the same as that of the other witnesses
hereinabove relating to the discovery of the body, the
artefacts seized from the SOC, being a witness to the
various seizure memos etc., IN CROSS EXAMINATION, he
says that there was no previous dispute between him and
the appellant and that the appellant lived at a distance of
two hundred yards from his home. He also says that only
one glass was seized from the house of Narinder Paul
Singh, the elder brother of the appellant.
14. PW5 is Kartar Kaur. She is the grandmother of the victims
and the mother of PW4. She corroborates in her
examination in chief that PW4 had gone to harvest the
crop of his uncle. She further states that her husband PW1
had gone to Mata Gangi Memorial Public School to teach.
The victims had returned home from school at 4 PM and
she told them that their mother had gone to graze the
cows. She further says that the victims had gone to meet
their grandfather who was going to the Gurudwara. The
grandfather told the victims to go back home (this is a hear
say as PW1 never says that PW5 was accompanying the
victims when he met them near the house of Prahlad Singh
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and neither does this PW5 say that she accompanied the
victims when they went to meet PW1). The rest of her
statement is similar to that of the other witnesses already
referred to hereinabove. However, one aspect of her
examination in chief is striking as, upon seeing the bodies
of the victims at the house of Jagdesh Singh she says that
they were subjected to sexual intercourse. One other
witness PW 22 Const. Mohammad Shafi also states that
the victims appeared to have been raped and then
murdered by someone. Her cross examination is
insignificant.
15. PW6 Inderjeet Kour. In her examination in chief she says
she knows the accused as he lives in her village. She is the
mother of the victims. She says that she was not at home
when the victims came back from school but her mother
in law was. She says that the victims came back from
school and kept their books in the veranda and they asked
their grandmother about the whereabouts of this witness.
She further says that she was not at home when the
victims returned as she was at the farm. She further says
that the grandmother told the victims that their mother
had gone to “uncle’s house”. She further says that the
accused had a shop that was nearby, and the accused had
given the victims some biscuits and toffees and told them
that he would take them to their mother. She further says
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that there was no animosity between her and the
appellant, that he was of sound mental disposition and
that he committed rape on the girls. IN CROSS
EXAMINATION, this witness has stated what the others
have. As regards her statement in chief that the appellant
enticed the victims with biscuits and toffees, she says that
she has said this on the basis of the confession of the
appellant before the police and she has not herself seen
the appellant giving biscuits and toffees to the victims.
16. PW7 is Kripal Kour. She has turned hostile. Her
examination in chief corroborates the statement of PW1
only to the limited extent of her having seen the victims
with PW1 who told the victims to go back home. Rest of
her statement is of no relevance.
17. PW8 is Satbir Kaur. She is the cousin of the appellant. She
states that four to five years before her deposition was
recorded in Court, she had seen the appellant crossing her
and her sister when they were returning home after
washing clothes in the local spring and two days
thereafter, the victims went missing and their body was
recovered on the next day. This would put the date of the
chance meeting of the witness and the appellant on
01/10/2002. She does not state that there was any
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conversation between her and the appellant when they
crossed each other.
18. PW9 is Amarjeet Kaur. She has turned completely hostile
and therefore there is no need to refer to her deposition.
PW 10 is Santosh Kaur. She is also a resident of the same
village as the appellant, and she knows the appellant and
the victims. The only relevant part of her deposition is that
when she went in search of her calf, she saw the appellant
drying his hair in the veranda of the SOC at 2 PM.
19. PW11 is Ishpaul Singh. He says that he knows the accused
and the deceased and that in the course of investigation,
four glasses were seized from his home. He has proved the
seizure memo. It is also necessary to mention here that the
during investigation, four steel glasses were seized from
his house, however, it is the undisputed case that none of
these glasses had N.P.S or P.Unit etched on them. This
witness has not testified anything relevant to support a
material fact or the fact in issue.
20. PW12 is Aijaz Ahmad Khan. He is the son of Bashir Ahmad
Khan who was running a shop in the house owned by the
appellant. On the day on which the victims went missing,
the witness was managing the shop of his father, and the
appellant had brought sweets worth Rs. 2 from him at
around 4.30 PM. Besides this, the statement bears no
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relevant to a material fact or a fact in issue. It is relevant
to mention here that Bashir Ahmad Khan was never
examined as a witness.
21. PW13 is Mohammad Yousuf Dar. He was posted as
Incharge FSL unit at Budgam. He was a part of the SOC
investigating team. He says he was shown the hairs and
steel glass at the SOC. He also says that the appellant also
accompanied them to the SOC.
22. PW23 is Fareed Ahmad. This witness is a constable with
the police force and a member of the investigating team.
He, like the other witnesses has deposed about the process
of investigation. However, he has also stated that the
appellant had informed the police that it was his elder
brother Narendra Paul Singh who had committed the rape
and murder as he is in the habit of misbehaving with
children. This witness says that Narendra Paul Singh was
arrested but later absolved by the police itself as he was
found to be impotent. He further says that the appellant
himself accepted the guilt by confessing that he had raped
and murdered the girls. IN CROSS EXAMINATION, this
witness says that the accused had been arrested on
suspicion prior to bodies of the girls being discovered as
the appellant was in a state of intoxication. He does not
know when the brother of the appellant was arrested. On
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being asked by the defence as to how the police arrived at
the conclusion that Narendra Paul Singh, the brother of
the appellant was impotent, the witness states that
Narendra Paul Singh himself stated that he is impotent.
23. PW25 is Dr. Sarvar Hussain. This witness examined the
accused when he was produced by the police. He was
brought before the witness for the treatment of some
ailment. In cross examination, the witness says that he did
not find any injury on the body of the accused.
24. PW26 is Dr. Fayaz Ahmad Banday. During the relevant
period, he was posted as Assistant Surgeon S.D.H
Beerwah. He performed the postmortem of the victims. On
D1, he found bruises on either sides of the neck as well as
on the anterior aspect of the neck. He also records in his
report that there were bruise marks on the back and labia
majora and minora and noticed a big haematoma inside
the vaginal cavity. He noticed bruises on the vaginal wall
and an oily substance around the genitalia of the victim
that smelt like mustard oil. He records that the hymen was
completely ruptured. He opines that the mustard oil was
used as a lubricant to facilitate penetration. He records
that the hyoid bone was fractured with the presence of
extravasation of blood in the subcutaneous tissue around
the bruise marks reflecting the force that was used and
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that the cause of death was asphyxia due to throttling,
leading to cardiac arrest. As regards D2, she too had been
subjected to the same violence and indignity as her elder
sister and had similar injuries with the same cause of
death as her elder sister.
25. PW28 is Hakim Abdul Rashid. He is an FSL expert. In his
examination in chief he deposed that he received a packet
that was marked as Q-1 and an envelope marked as S-1
for detection and comparison of finger prints. Q-1
contained a steel tumbler (seized from the SOC) and S-1
contained sample finger prints of the accused. On
examination of the steel tumbler, he did not find any
fingerprints on it.
26. PW29 IS Shahul Ahmad Kanth. On the date he took the
stand, he was the Scientific Assistant, Serology at FSL
Srinagar. On 12/10/2002, he received four sealed
envelopes from Dy.S.P Headquarters, Budgam. One
envelope being Q-V contained strands of hair which was
collectively marked as K-359. The other envelope marked
as S-VI contained a few strands of hair allegedly taken
from the suspect and collectively marked as K-360. After
conducting the tests, the witness opined in the report
“That hair samples marked as K-359 and K-360 were
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found similar and could be of the same person.”
(emphasis added).
27. PW30 is Nazir Ahmad. He is the investigating officer of this
case. He states that on 04/10/2002, ten to fifteen people
from the Sikh community approached him to file a missing
report of two minor girls who went missing on
03/10/2002. Upon searching for them, they found the
dead bodies of the girls in an abandoned migrant home.
He gives the investigative process in great detail and says
that the search of the house of the appellant led to the
recovery of a steel glass. He further says that the glass that
was seized from the house of the appellant and that seized
from the SOC, both bore “N.P.S” and “P.unit” etched on
them. The appellant was arrested on suspicion and when
subjected to interrogation, he disclosed having committed
the crime. He says that the appellant disclosed that on the
date of the incident, he was going to the local spring to
wash his clothes with his brother when he met two of his
cousin sisters. He told one of them to meet him at the SOC
but she never turned up, then about 4.30 PM he saw the
girls coming his way and he thought why not have sex with
them instead and then took both the girls inside the house
of Jagdesh Singh, gave them a few sweets and biscuits that
he has purchased from some shopkeeper and then left the
place, went to his house from where he got some mustard
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oil and then raped them and when they began to cry, he
murdered both of them by throttling. He left the dead
bodies at the SOC, and went home. He further states that
the accused also informed him that he had confessed his
crime to his mother and his uncles. The accused also
disclosed that after commission of the offence, he jumped
from the attic and received bruises in his leg. This is the
disclosure statement of the appellant according to this
witness. IN CROSS EXAMINATION, this witness said that
the door of the SOC was locked which had to be forced
open. Rest of his testimony relates to the investigative
process as in seizure memorandums, dispatch to the FSL
etc.,
28. FOR THE APPELLANT: The Ld. Amicus has argued that
the entire case of the prosecution is based upon
circumstantial evidence. According to the Ld. Amicus, the
Ld. Trial Court failed to appreciate that the so called
material on record did not constitute an unbroken and
contiguous chain instead, the prosecution has laid
fragmented pieces of facts before the Ld. Trial Court which
did not even constitute legal evidence. He said that no
material fact has been proved against the appellant and
that he has been held guilty on the basis of surmises and
conjectures.
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29. Ld. Counsel for the appellant has also submitted that the
appellant has been convicted only on the basis of the
recovery of a steel glass with “N.P.S” and “P.unit” inscribed
on it from the SOC which contained some mustard oil
which was allegedly used in the commission of the crime.
The ownership of the glass was never proved. The Ld.
Counsel has referred to the deposition of PW23 who in
cross examination has stated that the appellant/accused
was arrested on the basis of suspicion as he was drunk,
and this arrest was made before the discovery of the bodies
of the girls. He further says that PW23 is a police witness,
and he has not been declared hostile and therefore, the
statement of this witness that the appellant was arrested
even before the discovery of the bodies, is binding against
the prosecution and in favour of the accused. He says that
from the evidence of the prosecution witness itself, it is
clear as day that the appellant has been falsely implicated
in a botched up investigation and has completed more
than twenty two years of the sentence.
30. FOR THE RESPONDENT: Ld. Counsel for the State has
argued that the impugned order is well considered and
elaborate and has considered every aspect of the case and
only thereafter has held the appellant guilty as charged.
He has submitted that even though the evidence against
the appellant is purely circumstantial without any
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eyewitnesses or a witness to “last seen”, the chain of
circumstances is complete without any missing links and
that the prosecution has been successful in proving the
case against the appellant beyond reasonable doubt.
31. The Ld. Counsel for the UT has drawn the attention of this
Court to the scientific evidence on record which, according
to the Ld. Counsel, establishes the involvement of the
appellant in the crime. According to him, the evidence
brought on record establishes beyond reasonable doubt
that it is only the appellant who has committed the crime
and there is no material to raise a doubt in favour of any
hypothesis relating to the innocence of the appellant. In
this regard, the Ld. Counsel has argued that the recovery
of the glass with some mustard oil still in it, the PMR which
establishes the presence of mustard oil on the vagina of
the victims, the seizure of human hair from the attic from
where the appellant has said to have jumped out and
escaped, the report and testimony of the FSL expert that
the hair seized from the SOC and the sample taken from
the appellant could be from the same person, the recovery
of an identical steel glass from the house of the appellant,
the appellant being seen by a witness in the veranda of the
SOC at 2.30 PM, drying his hair on the date of the incident,
the injury suffered by the appellant when jumping from
the attic to make good his escape and finally, his
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memorandum u/s. 27 of the Evidence Act which led to
certain recoveries from the house of the appellant which
raises the inescapable inference of the appellant as the
only person who could have committed the offence to the
exclusion of any other person.
32. Heard the Ld. Counsels for the parties and perused the
records of the case. The PMR report of the victims reflects
the commission of a brutal crime which shakes the human
conscience. The manner in which the crime was
committed and the pain and agony that was endured by
the hapless victims sends a shiver down the spine of the
strongest amongst men. This was an act done by an
animal masquerading as a human. The victims were only
six and three years of age. However, shocking as the crime
may be, it is for this Court to examine if the conviction
arrived at by the Ld. Trial Court was based upon a just
and proper appreciation of the evidence against the
appellant.
33. The evidence against the appellant is twofold. (a) Witness
Testimony and (b) Scientific Evidence.
34. WITNESS TESTIMONY: PW1, the grandfather of the girls
says that the girls reached home from school in the
evening of 03/10/2002 and enquired about their mother
when he was leaving for the Gurudwara. He does not state
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that his wife PW5 was at home at that time. Then he says
that on his way to the Gurudwara, he met the girls near
the house of one Prahlad Singh, and he asked them to
return home. He later returns home at 4.30PM and found
that the girls had not reached home. In cross examination
this witness contradicts himself and says that when the
girls reached home in the evening, he was at the school
and not at home and that he had met them on his way to
the Gurudwara. PW5 who is the grandmother of the girls
and the wife of PW1 on the other hand says that PW1 had
gone to the Mata Gangi Memorial Public School to teach
and that the children returned home from school at 4 PM
and she told the girls that their mother had gone to graze
the cow and that the girls had left to meet their
grandfather (PW1) who was on his way to the Gurudwara
and that the grandfather told them to return home. PW6
is the mother of the girls who was not at home when they
came back from school and is not privy to any of the events
from the time the girls came home from school and went
missing. She only narrates what she has heard from PW5
who is her mother in law. The Statement of PW4 Narinder
Paul Singh, the father of the girls, is also not very relevant
as he was not at home when the girls returned home from
school and then went missing. His status as a witness to
the events relating to the girls after they reached home and
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went missing is no different from that of his wife PW6 and
their knowledge is based on hearsay information that they
may have received from PW1 and PW5. PW2 Gurdeep
Singh who is an SPO says that he was having lunch at
4PM when the victims came to his house and enquired
about their mother to which he said that he hasn’t seen
her. This part of his narrative does not seem probable as
PW5 the grandmother says that she had told the girls that
their mother had gone to graze the cows and the mother of
the girls PW6 says that the place for grazing was between
twenty and fifty yards from their house. Thus it is most
unlikely that the girls would have gone to the house of the
PW2 searching for their mother when PW5 had already
told them where their mother was. Also, from the witness
narrative it appears that the girls were very familiar with
their neighbourhood as they used to go to school and come
back on their own as no witness has stated that the girls
used to go to school accompanied by an adult. Thus, there
is inconsistency in the evidence given by these witnesses
to that part of the events of 03/10/2002 when the girls
came back home from school and thereafter went missing.
35. Now this Court proposes to examine the witness narrative
relating to the search for the girls till their bodies are
recovered from the SOC. PW1 says that when he reached
home from the Gurudwara at 4.30 PM on 03/10/2002,
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and found the girls missing, he started searching for them
and he was joined by several other including PW2, PW3,
PW4, PW5 and PW6 and several other persons residing in
the village. The search went on late into the night, but the
girls could not be found. The next day i.e., 04/10/2002,
PW1 went to the police station and gave a missing report
of the girls to PW30 Nazir Ahmad who is the IO of this case
who undertook the search along with the family members
of the girls and the general public in the locality. They
started searching the houses of Sikhs and also the
unoccupied houses of the migrants. PW 30 says that the
house of Jagdesh was locked from outside and had to be
opened using a “kundi” and inside in the kitchen, the
bodies of the girls was lying on the ground in a denuded
state. A steel glass etched with “N.P.S” and “P.unit” with
some mustard oil in it was near the bodies. There were
some clothes lying nearby. In the course of investigation,
strands of hair were seized from the attic, stuck between
the beam and the roof which was suspected to be that of
the appellant which he left behind while making his escape
by jumping from the attic after committing the crime. The
statement of the witnesses after they witnessed the SOC
are similar and largely corroborate each other and they
have been witnesses to the seizure of articles from the SOC
which these witnesses have stood by in Court.
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36. As per the case of the prosecution, the appellant was
arrested on 06/10/2002. The main evidence against him
is his memorandum under section 27 of the Evidence Act.
PW30 who is the IO of this case deposes that the appellant
was arrested on suspicion and was subjected to
interrogation, upon which he disclosed having committed
the crime. The appellant disclosed, that on the date of the
incident, he was going to the local spring to wash his
clothes with his brother when he met two of his cousin
sisters. He told one of them (PW8 Satbir Kour) to meet him
at the SOC but she never turned up, then about 4.30 PM
he saw the girls coming his way and he thought why not
have sex with them instead and then took both the girls
inside the house of Jagdesh Singh, gave them a few sweets
and biscuits that he had purchased from some shopkeeper
and then left the place, went to his house from where he
got some mustard oil and then raped them and when they
began to cry, he murdered both of them by throttling. PW8
Satbir Kaur for whom the appellant says he was wating at
the SOC, in her testimony does not state that the appellant
ever asked her to meet him at the SOC. In fact PW8 does
not even mention that there was any conversation between
her and the appellant. All that PW8 says is that she and
her sister were returning from the local spring after
washing their clothes when they passed the appellant and
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his brother who were going towards the spring. Thus, there
is a variation in the deposition of PW8 and the 27
memorandum of the appellant as regards their meeting.
PW8 has not been declared hostile and therefore her
limited statement is binding on the prosecution.
37. As regards the arrest of the appellant on 06/10/02, the
same is also under a cloud of doubt. In this regard, it is
necessary to refer to the deposition of PW23 Fareed Ahmad
who says that the accused had been arrested on suspicion,
prior to bodies of the girls being discovered as the
appellant was in a state of intoxication. Thus according to
PW23, the appellant was arrested before 04/10/2002
which is the date on which the bodies were discovered, and
this goes to the root of the prosecution’s case. PW23 is a
police constable who has not been declared hostile and so
yet again, the statement of this witness is binding on the
prosecution. Thus, if the date of arrest of the appellant is
itself under doubt, then the 27 memorandum and any
seizure made pursuant thereto is also rendered doubtful.
38. As regards the attempt to connect the steel glass found at
the SOC to the appellant, the prosecution has relied upon
the initials N.P.S etched on it as referring to the brother of
the appellant whose name is Narendra Paul Singh.
However, PW4 is also Narendra Paul Singh who is the
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father of the victims who was harvesting the crop of his
uncle on the date of the incident and returned home only
in the evening. The prosecution seeks to connect the glass
to the appellant on the basis of his 27 memorandum where
he says that he went to his house to get oil in the glass
that was subsequently seized from the SOC. Besides that,
one glass with identical etching has been seized from the
house of the appellant. As per PW23, the appellant had
initially told the witness that it was his elder brother
Narendra Paul Singh who had committed the rape as he
had such an inclination towards children. Thereafter, they
arrested Narendra Paul Singh but released him as he
informed the police that he was impotent. This witness
says that later the appellant made the disclosure u/s. 37
of the Evidence Act and admitted everything. As per PW23,
the police never got the appellant’s brother tested for
potency and instead accepted as gospel truth the suspect’s
statement that he was impotent. This reflects a totally
unprofessional and amateurish investigation on the part
of the police. Between the appellant and his brother, the
needle of suspicion was stronger against the brother as the
etching on the steel glass found at the SOC was more likely
to be the abbreviation of Narinder Paul Singh and coupled
with the fact that another steel glass was seized from the
house of the appellant where his brother also lived,
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suggested that Narinder Paul Singh was the one who
should have been strongly investigated instead of the
appellant.
39. Now coming to the scientific evidence, the first document
is the PMR which has been proved by PW26 and its details
are in paragraph 24 supra. The same proves that the
victims were brutally raped causing serious and painful
injuries to them and there after they were killed by
throttling. However, the PMR and its findings cannot by
itself be evidence of who committed the crime.
40. The second piece of scientific evidence is the fingerprint
expert’s testimony. The fingerprint expert is PW28, and he
proved his report, details of which are in paragraph 25
supra. He mentions in his testimony that he received the
glass and the fingerprint samples of the accused for
comparison. Upon examining the steel glass, the expert
did not find any fingerprints on it to compare it with the
appellants sample. Thus, the report of PW28 is
inconclusive and does not link the steel glass seized from
the SOC to the appellant.
41. The third piece of scientific evidence is the report of the
serologist to whom the strands of hair, allegedly belonging
to the appellant, were recovered from the between the
beam and the roof in the attic when the appellant is said
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to have made his escape after the crime by jumping from
the attic, were sent for analysis. The expert is PW29, and
his deposition and report have been dealt with in
paragraph 26 supra. His finding after comparing the hair
found at the SOC and the comparison done with the
sample hair taken from the appellant is “That hair
samples marked as K-359 and K-360 were found
similar and could be of the same person”. The opinion
of the expert is speculative and not conclusive when he
says that the hair at the SOC could be that of the
appellant. It would be unsafe to base a conviction only on
the basis of this speculative report in the absence of any
strong corroborative evidence.
42. The next piece of evidence is the alleged injury that the
appellant suffered when he jumped from the attic while
escaping. The police had got him examined by a doctor.
That doctor was examined before the Ld. Trial Court as
PW25, and the summary of his deposition is at paragraph
23 supra. He says that upon examining the accused he did
not find any injury on the body of the appellant. The
statement of this witness knocks the basis out of a
material fact related to the narrative of the appellant
jumping out from the attic after the crime, where the injury
suffered by him in the process was a corroborative fact
which now stood nullified by the statement of PW25.
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43. One more aspect of the prosecution’s case which renders
it dubious is that the IO who was examined as PW30 states
that the SOC was locked from outside and that they had
to force open the door. The SOC was a migrant property
which was lying abandoned, and it gave access to anyone
and everyone. In this regard, this Court deems it necessary
to refer to the cross examination of PW3 Joginder Singh
who states that he too used to go inside the SOC before
the incident as the owner Jagdesh Singh was his relative.
His statement reflects that the house was unattended, and
the door was open for anyone to enter it, so the question
arises as to who locked the door of the SOC from outside
between 03-04/10/2002?
44. As per the disclosure memorandum of the
appellant/accused, he was waiting for his cousin PW8 who
never came and thereafter the girls are said to have passed
by the house when the appellant decided to entice them
and rape them. PW8 in her deposition says that the
children went missing two days after she chanced to see
the appellant and his brother while she was returning with
her sister. That would put the date of PW8 seeing the
appellant as 01/10/2002 and therefore, the same does not
fit in with the disclosure statement of the appellant who
firstly states that he had met PW8 while going to the spring
and had asked her to meet him at the SOC and if one goes
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by the statement of PW8, this incident was on 01/10/2002
and not 03/10/2002, which was the date of the
commission of the offence.
45. The other aspect is that the appellant says that after he
enticed the two girls to the SOC, he went to his house get
the mustard oil and then came back to the SOC and
committed the crime. This shows that there was no need
for the appellant to jump from the attic, come back to the
front door, lock it and then go home. If he had to lock the
front door, he could have come out of it and then locked
it, there was no need for him to jump out of the attic.
Therefore, the narrative of the prosecution that the
appellant jumped out of the attic after committing the
offence is based solely on the disclosure of the appellant
u/s. 27 of the Evidence Act and it is impermissible in law
to use the disclosure statement beyond proving what was
recovered at the behest of the accused.
46. When this is seen in the backdrop of the testimony of
PW23 who states in cross examination that the appellant
was arrested even before the bodies of the girls were
discovered along with the inherent attending infirmities of
the evidence led by the prosecution, it appears that the
disclosure of the appellant has been prised from him and
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that is why the same suffers from infirmities as pointed
out by this court.
47. Thus, in view of what has been argued, considered and
held by this Court hereinabove, the prosecution’s case
against the appellant is nothing more than a bundle of
contradictions, omissions, speculations and conjectures
and it has miserably failed to prove the case against the
appellant beyond reasonable doubt. Under the
circumstances, the impugned judgement of conviction is
set aside, and the appellant is acquitted of all charges. He
shall be released forthwith. Before parting with the case,
this Court records its appreciation for the able assistance
rendered by the Ld. Amicus Curiae Mr. M.A. Wani.
48. The appeal is disposed of.
(JAVED IQBAL WANI) (ATUL SREEDHARAN)
JUDGE JUDGE
Srinagar: 20/12/2024
Yasmeen
Whether the order is speaking: Yes
Whether approved for reporting: Yes
Yasmeen Rashid
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