Jammu & Kashmir High Court – Srinagar Bench
I) vs I) State Of J&K Through Police Station … on 5 June, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
i. CRA No. 9900005/2014
ii. CRA No. 07/2017 c/w
iii. Cr. Ref. No. 05/2014
Reserved on: 08.05.2025
Pronounced on: 05.06.2025
I)
i) Shamim Ahmad Parray @ Koka Parray
S/O Ismail Parray R/o Jablipora presently
lodged in Cetnral Jail, Srinagar.
ii) Mst. Gulshana D/o Lassi Bhat widow of
Late Farooq Ahmad Parray R/o Babapora,. Badigam
Qazigund District Anantnag at present detained in
Central Jail, Srinagar.
.........Appellant(s)
Through:
Mr. S. T. Hussain, Advocate with Ms. Nida Nazir, Advocate.
Versus
i) State of J&K Through Police Station Bijbehara.
ii) State of Jammu and Kashmir through Principal Secretary
to Government, Home Department, Jammu/ Srinagar.
......Respondent(s)
Through:
Mr. Illiyas Nazir Laway, GA with Mohammad Younis, Assisting Counsel.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per Sanjay Parihar-J
1. These two criminal Appeals, one filed by appellant-accused (Shamim
Ahmad Parry @ Koka Parry) and the other by appellant-accused (Mst.
Gulshan) are directed against a common judgment of conviction dated
12-08-2014 and order of sentence dated 16-08-2014 passed by the learned
CRA No. 9900005/2014 & CRA No. 07/2017 Page 1 of 34
Additional Sessions Judge, Anantnag („the trial Court‟) in Criminal Challan
File No. 20/S titled State vs. Shamim Ahmad Parry and anr, whereby the
appellants have been convicted for commission of offence under Section
302/34 RPC and have been sentenced to imprisonment for life with a fine of
Rs. 5,000/- each.
2. Briefly stating, it was an incident that happened during the intervening
night of 1st and 2nd April 2002 when PW-1 Gull Parray, who being brother-in-
law of appellant Mst. Gulshana, while moving across her courtyard, found its
main door locked from outside and also saw a pit having been dug in that
courtyard. On enquiring from her as to where is Farooq (hereinafter referred
to as deceased) she told him that he has been taken by Army people. When he
entered in her house, he found body of deceased in a corner and on seeing
that, (appellant) Mst. Gulshana started crying. He immediately called the
Police party who seized the body. This led to the registration of case FIR No.
79/2002 by Police Station Bijbehara. It is alleged that during investigation
appellants were apprehended on suspicion as there was a buzz in the area that
Mst. Gulshana was having illicit relations with Shamim Ahmad Parray @
Kuka Parray (co-appellant) and in order to eliminate the deceased from their
discourse, during intervening night of 1st and 2nd April 2002, she facilitated
entry of co-appellant in her house without the knowledge of the deceased and
when the later, entered in his house, the co-appellant who had already hid
himself in the eastern corner, he hit the deceased on head by pestle (Chhota)
and later on throttled him to death.
CRA No. 9900005/2014 & CRA No. 07/2017 Page 2 of 34
3. It is alleged that the pestle was recovered at the disclosure of Shamim
Ahmad Parray and both the appellants narrated the sequence of events leading
to the demise of the deceased. During investigation the post-mortem of
deceased was got conducted and as per medico-legal opinion, the deceased
had lacerated wound over occipital area (without fracture) besides broken
hydra bone and there was trachea of lungs, which injuries over body of
deceased were anti-mortem, that were capable of causing death that had taken
place within 14/15 hours before the conduct of autopsy. The wooden pestle on
being seized was shown to medical expert who confirmed that the injury
caused over the back of the head of the deceased was possible with said
wooden pestle. So the cause of death was most likely to be asphyxia
(following throttling). During investigation an Identity Card of Shamim
Ahmad Parray too was recovered from a pit that had been dug in the house of
the deceased for alleged burying, but before it could happen PW-Gull Parray
had informed the police. Both the appellants were therefore, accused of
having killed deceased with common intention to eliminate him and in the
intervening night of 1st and 2nd April 2002, they accomplished the killing of
the deceased in the manner as disclosed above for which they were formally
charged for offences under section 302/34 RPC on 19.08.2002 to which they
pleaded not guilty and thus were put to trial.
4. Prosecution on its part examined the witnesses, namely, PW-Gull
Parray, PW-Qadir Bhat, PW-3 Nazir Ahmad Bhat, PW-4 Abdul Hamid Dar,
PW-5 Mst. Hafiza, PW-6, Aziz Parray (Kalan), PW-7 Abdul Aziz Parray
(Khurd), PW-8 Hassan Parray, PW-9 Gh. Hassan Wagay, PW-10 Zahoor
Ahmad Dar, PW-11 Gh. Mohi-ud-Din Dar, PW-12 Mansoor Ahmad Dar,
CRA No. 9900005/2014 & CRA No. 07/2017 Page 3 of 34
PW-13 Abdul Rehman Ms. Raheela Khan, Assisting Counsel vice Mr.
Satinder Singh Kalla, AAG., PW-14 Gulzar Ahmad Mantoo, PW-15 Muma
Parray, PW-16 Ghulam Mohi-ud-Din Parray PW-17 Ghulam Mohammad
Malik, PW-18 Rubi Jan, PW-19 Mohammad Feroz No. 461, PW-20 Zahoor
Ahmad Ganie, PW-21 Ali Mohammed Banday, PW-22 Abdul Khaliq Dar,
PW-23 Bashir Ahmad, PW-24 Dr. Nisar Ahmad, PW-25, Dr. Abdul Hamid,
PW-27 Shah-ul-Ahmad Kanth, PW-28 Farooq Ahmad, PW-29 Mst.
Nayeema, PW-30 Mst. Shaheena, PW-31 Abdul Rashid, PW-32 Ghulam
Qadir, PW-33 Bashir Ahmad Dar.
5. After culmination of the trial, both the appellants were examined under
Section 342 Cr.PC, in order to elicit any explanation with regard to the
commission of crime to which they claimed that case lodged against them is
false and has been orchestrated by PW-1 along with others who were all
interested witnesses. That there is not any eye witness account and the case
rests on circumstantial evidence. That the prosecution has miserably failed in
connecting the chain of events. The trial court, in terms of impugned
judgment, concluded that the prosecution case is based upon circumstantial
evidence as there is no eye witness account of the incident and that
prosecution has relied upon eight circumstances, that stood proved. The
aforesaid circumstances are reproduced as under:
1. The deceased Farooq Ahmad Parray S/O Ghulam
Qadir Parry R/O Jablipora Bijbehara died of
homicidal violence.
2. Recovery of weapon of offence i.e., pestle (Chhota)
used in the commission of alleged offence was
recovered at the instance of accused No. 1 upon the
disclosure statement made by the accused No. 1.
CRA No. 9900005/2014 & CRA No. 07/2017 Page 4 of 34
3. Blood stains detected on the pestle (Chhota) which
was seized by the police in pursuance of disclosure
statement made by accused No. 1.
4. Presence of accused No. 1 in the courtyard of house
of deceased during the intervening night of 1st/2nd
April, 2002 as seen by the PW-18.
5. Recovery of identity card of accused No. 1 at the
scene of occurrence.
6. Presence of two pits, one in the courtyard and
another in room of the house of the deceased in
order to bury the deal body of the deceased.
7. Dead body of deceased found in the house of
accused No. 2 and her non-explanation regarding
the presence of dead body in the house.
8. Illicit relationship between accused No. 1 and
accused No. 2 as a motive for the crime.
6. The trial court found that prosecution case stood proved beyond
doubt on all said eight circumstances, therefore, proceeded to hold
the appellants guilty for offences under section 302/34 RPC and
sentenced them to imprisonment for life and fine of Rupees 5000/-
each on the strength of judgment dated 12.08.2014 followed by the
order of sentence.
7. The appellants have thrown challenge to the aforesaid finding of the
trial court, and sentence so rendered on the following grounds:
i. That the learned trial Court has misread the entire
evidence and the appellants have right to read out the
evidence before this Court and upon entire re-appraisal of
the evidence, it would become absolutely clear that there
was no material before the trial court to have opined that
there was throttling of deceased. So much so whether the
weapon of offence alleged to have been recovered can, at,
all be connected with the crime, this is because the said
CRA No. 9900005/2014 & CRA No. 07/2017 Page 5 of 34
recovery was clearly inadmissible having been recordedagainst the provisions of law.
ii. That the finding of the trial Court that appellant No. 1
was in the house of the deceased during the intervening
night of 1st and 2nd April, 2002 has not sufficiently been
proved. That there is no linking evidence. So far as the
identity card of the appellant No. 1 having been traced
from the place of occurrence is concerned, same had been
planted by the complainant, because the witnesses have
admitted that they were not present at the time of the
recovery of identity card.
iii. That the recovery of body of deceased in the house of
appellant No. 2 is not sufficient enough to connect the
appellant No. 1 with the crime.
iv. That the learned trial Court has erroneously invoked
Section 106 of the Evidence Act for which the
prosecution had failed to lay cogent material. The
appellants cannot be convicted on mere suspicion until
the evidence is clear. Whereas in the given case the
examination of the witnesses is contradictory to what was
recorded u/s 161 Cr. PC. It is further urged that there is
not any legally sustainable evidence to connect the
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appellants with the commission of the offence underSection 302 RPC.
v. That the prosecution case is fabricated and even if the
prosecution case is accepted to be correct in view of the
statement of PW 22 Dr. Nasir Ahmad at the most offence
under Section 304 Part II RPC, can be said to have been
made out and in case the Court believes it a case of
throttling to be proved. However, there is no sufficient
evidence to connect the appellants with offence under
Section 302.
8. The appellants, therefore, claim that they need to be acquitted
and/or in the alternative may declare them guilty for offence under
Section 326 RPC and keeping in view the judgments of the Hon‟ble
Apex Court and precedents, the appellants having already suffered
punishment of more than ten years deserve to be given rest from the
ordeal of trial and appeal.
9. On the other hand, respondent have claimed that the conviction and
sentence recorded against the appellants is perfectly in accordance
with law and the learned trial court has rightly appreciated the
evidence and the grounds on which the appeal is laid are not legally
sustainable. Learned counsel for the appellant vehemently
contesting the case of the prosecution claimed that presence of
appellant-Shamim Ahmad Parray in the courtyard of deceased
during the intervening night of 1st /2nd April as seen by PW-18 is
CRA No. 9900005/2014 & CRA No. 07/2017 Page 7 of 34
completely without any evidence because the said witness is the
daughter of appellant Gulshana Bano who, on one occasion, claims
to have seen appellant in the corridor of her courtyard but in her
court statement she has completely negated it.
10. We have heard both counsels and minutely gone through the record
of the trial Court. At the outset in the light of finding returned by the
trial court as well as the prosecution itself projecting its case, being
based on circumstantial evidence only, it is apt to reiterate here as to
what are the relevant principles that are to be kept in mind while
appreciating the case of the prosecution when based on
circumstantial evidence. Besides given the reliance on Section 106
of Evidence Act and the resistance laid by them to application of
said provision, whether in the given facts the trial court was right in
applying this provision is also an issue to be deliberated upon.
In „Raj Kumar Singh Vs. State of Rajasthan‘ AIR 2013 SC
3150, dealing with case based on circumstantial evidence and after
considering the law on this subject, it was held as under:
“In matter of direct testimony, if credence be given to
the relators, the act of hearing and the act of belief,
though really not so, seem to be contemporaneous. But
the case is very different when we have to determine
upon circumstantial evidence, the judgment in respect
of which is essentially inferential. There is no apparent
necessary connection between the facts and the
inferences. The facts may be true, and the inference
erroneous, and it is only by comparison with the resultCRA No. 9900005/2014 & CRA No. 07/2017 Page 8 of 34
of observation in similar or analogous circumstances,
that we acquire confidence in the accuracy of our
conclusions….”
11. The force and effect of circumstantial evidence depend upon its
incompatibility with, and incapability of, explanation or solution
upon any other supposition than that of the truth of the fact which it
is adduced to prove, the mode of argument resembling the method
of demonstration by the reductio-ad-absurdum.
12. In para-23 of the judgment (supra) Hon‟ble the Supreme Court
further went on to hold as under:
“Thus in view of the above, the Court must consider a
case of circumstantial evidence in light of the aforesaid
settled legal propositions. In a case of circumstantial
evidence, the judgment remains essentially inferential.
The inference is drawn from the established facts as
the circumstances lead to particular inferences. The
Court has to draw an inference with respect to whether
the chain of circumstances is complete, and when the
circumstances therein are collectively considered, the
same must lead only to the irresistible conclusion, that
the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be
of a conclusive nature, and consistent only with the
hypothesis of the guilt of the accused.”
13. In ‘MG Aggarwal Vs. State of Maharashtra’ AIR 1963 SC 200, it
was held, that if the circumstances proved in a case are consistent
either with the innocence of the accused, or with his guilt, then the
accused is entitled to the benefit of doubt. When it is held that a
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certain fact has been proved, then the question that arises is whether
such a fact leads to the inference of guilt on the part of the accused
person or not, and in dealing with this aspect of the problem, the
benefit of doubt must be given to the accused and a final inference
of guilt against him must be drawn only if the proved fact is wholly
inconsistent with the innocence of the accused and is entirely
consistent with his guilt.
In ‘Sharad Bardhi Chand Sarda vs. State of Maharashtra‘ AIR
1984 SC 1622, it was held there must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that in
all human probability, the act must have been done by the accused.
14. Graver the crime, greater should be the standard of proof. An
accused may appear to be guilty on the basis of suspicion but that
cannot amount to legal proof. When on evidence two possibilities
are available or open, one which goes in the favour of the
prosecution and the other benefits an accused, the accused is
undoubtedly entitled to the benefit of doubt. This principle has
special relevance where the guilt of the accused is sought to be
established by the circumstantial evidence.
15. Keeping these principles in mind, we proceed to examine the merits
of these appeals, also, whether the trial court was right in returning
finding of guilty on the eight incriminating circumstances, which it
claims, have been proved by the prosecution.
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16. Insofar as the death of deceased Farooq Ahmad Parray is concerned,
EXPW(24/2) is his autopsy report has stated that the deceased is
stated to have been inflicted: lacerated wound on occipital area (no
fracture) with residual haemorrhage; bluish congested with
haemorrhage spongy spots send for forensic examination, broken
Hyoid bone and Trachea lungs, Ecchymosis of strap muscles with
surgical compression of neck and upon forensic examination there
appear to be no evidence of poisoning and death was most likely
due to Asphyxia (following throttling). In EXPW (24/4) the medical
expert had further opined that the injuries seem to be sufficient to
cause death and the fracture can be caused by severe pressure on
Hyoid bone, so the death had taken place 14/15 hours before
conduct of autopsy. The medico-legal opinion supported the case to
be of a culpable homicide. The medical expert during trial claimed
that the injury on the occipital region of the deceased could be
caused by wooden pestle and upon cross-examination admitted that
the pestle was not having any blood stains. The injury on the
backside of the head of the deceased was a lacerated one where
bleeding had ceased after death rather it had stopped by the time it
was brought for the post-mortem.
17. The medico-legal opinion when tested in the light of statement
given by Dr. Nisar Ahmad, Medical Officer, would show that the
prosecution had laid thrust on use of wooden pestle only and at no
point of time sought to prove its case as to how the injury in the
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nature of strangulation were observed around the neck of the
deceased.
18. Learned counsel for the respondent argued that there was not any
clear evidence on record of the file of deceased having been put to
throttling by the accused and in fact that part of investigation was
neither enquired into nor has the prosecution proved as to how and
in what manner the throttling marks were observed around the neck
of the deceased. In-fact upon going through the evidence on record
neither prosecution nor the trial court has dealt with the manner in
which throttling of deceased took place. The word throttle as
explained in Judicial Officer‟s Law Lexicon by Justice C.K.
Thakker page 4717 is taken note of as under:
“Throttle in its ordinary parlance would mean compression of neck
by means of finger. A slight compression is sufficient to cause
complete closure of glottis as it forces the base of the tongue
upwards and backwards against the posterior pharyngeal well
causing complete occlusion of air passage. Evidence of violent
compression of the neck during life is obtained from bruising due
to thumb and fingers, nail marks, swelling and lividly of the fact. In
addition, further evidence is provided by bruising and location of
larynx, windpipe, and muscles and vessels on front and sides of
neck, and fracture of the cornices of the laryngeal and occasionally
the hyoid.
Generally, haemorrhage in the subcutaneous tissues and in
the muscles underlying nail marks is usually scanty as compared to
the external injuries. Conversely, the absence of externally visible
neck injury does not preclude fatal trauma. The signs of throttling
are, the tongue may be bruised, may be bitten by teeth and
protruded. Bleeding from the ears due to rupture of the blood
vessels of the tympanum may be seen. There may be injuries on theCRA No. 9900005/2014 & CRA No. 07/2017 Page 12 of 34
face, chest, etc indicating a struggle. The throat or wind pipe, a
valve controlling the supply of steam engine, lever which operates
the throttle valve, to press or constrict the wind pipe, to strange,
chock or suffocate, to shut or silence.”
The medical expert having not dealt with the issue of throttling
as to how it had taken place even during investigation also this
aspect has remained un-explored. This is because neither any
evidence regarding injury marks over neck have been collected nor
from medical expert any opinion has been sought as to what was
the nature of compression, as well as existence of any type of
injuries on account of struggle, while deceased was being applied
pressure over neck. This goes on to mean that either this issue was
deliberately left out or the prosecution knew that it might not be in a
position to sustain its case in the Court of law on the issue of
whether throttling of deceased had taken place or not. Having said
so, since death has taken place, due to human intervention, so it is a
case of culpable homicide whether that amounts to murder or
otherwise is to be seen hereafter.
19. Prosecution relied on the testimony of PW-18 to convince the trial
court that it was accused No. 1 (appellant-Shamim Ahmad Parray)
who was lastly seen in the house of the deceased during the
intervening night of 1st /2nd April 2002. This witness is daughter of
deceased and appellant Mst. Gulshana. According to PW-33
Inspector-Bashir Ahmad, SHO, Uri the information regarding
demise of deceased was received in the manner that some
unidentified persons had killed deceased by subjecting him to
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torture during the intervening night of 1st/2nd April 2002, which
form the basis for registration of case. He categorically is admitting
that when he enquired from PW-18 about what had happened at the
time of incident, the witness did not tell him to have found accused
No. 1 in the courtyard when she peeped from behind the door.
Whereas, this witness in 161 Cr P C, statement recorded on 8th April
2002(after seven days of occurrence) is found narrating that after
having meals while she was sleeping in her room she heard noises
emanating from the courtyard. Thereafter she followed her mother
and on reaching in the courtyard she saw Shamim Ahmad Parray in
the courtyard which leads towards the big room, in which room
electricity was on. Thereafter, the mother pushed her back towards
her room, thereafter Shamim Ahmad Parray, went to the big room
and destroyed the electric lamp. Whereas in her Court deposition
she claims that though Mst.Gulshana Bano is her mother but now
she is not related to her, she asked her mother about the
whereabouts of her father who told her he had gone to provide
fodder to animals in the nearby cowshed. Thereafter she went to bed
around the mid-night she got awake after hearing some noise. Her
door was closed from outside she tried to open it and also called her
mother, maybe she was sleeping with the deceased. She did not
allow her to come outside however, from the space of the door she
could see accused Shamim Ahmad Parray who went in a room and
switch off the lights. This witness has been subjected to lengthy
cross-examination she admitted that the courtyard leads to the big
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room, however, the witness is not sure whether deceased was
sleeping in that big room or not. She further admits that there was
no electricity in the Courtyard.
On close scrutiny of the testimony of witness it is clearly
discernible that on one occasion she claims to have followed her
mother in the courtyard where she saw accused no.1 whereas, in
another statement she claims to have identified the accused after
peeping from her room from a space line in between the doors. She
herself admitted that the mother did not allow her to come out of
room. Now there are two scenarios either the witness was allowed
by her mother co-appellant to come out of the room or she remained
inside. Whereas, PW-Gull Parray the informant as well as the
brother of deceased who noticed the body in the morning when he
was about to leave for “Fajr” prayers did not notice the presence of
the accused.
20. On further examination of her testimony it is clearly discernable that
she admits that after “Isha” prayers and having taken meals, she
went outside her room at 9.00 PM for easing and till morning she
was in the room and at 12.00 AM she tried to go outside. On another
occasion she claims that she asked her mother as to what was
happening outside but she did not listen, rather she pushed her back
in the room. On another occasion she claims to have followed her
mother in the courtyard there she saw accused No. 1 who was
roaming here and there. The trial court was of the view that there is
not much contradiction in her narration because whether she saw
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accused No. 1 while following her mother or she saw him after
peeping from the door would not be of much relevance because
having been examined after four years of the incident such minor
variations were bound to occur. Whereas, this witness at that time
was nine years old, she has been examined for the first time after the
incident on 08.04.2002. Trial court found that there is not much
delay because the witness had categorically admitted that she was
threatened by her mother not to speak about the presence of accused
No. 1. The mother has been arrested on 05.04.2002, but even
thereafter she did not make any statement rather is found narrating
about the presence of accused No. 1 for the first time on 08.04.2002.
From her narration there are two scenarios either she was not
allowed by her mother to come out of the room so she had an
occasion to see the accused from the space in between the doors that
means she did not go outside, or that she had an occasion to go out
and follow her mother because she wanted to come out of the room
as there were some noises emanating, so she became curious hence
came out of the room and followed her mother. On one occasion she
claimed that there was no light in the courtyard rather light was in
the adjoining room. The witness therefore, has blown hot and cold
and given the case resting on circumstantial evidence, the
contradictory narration of the witness should have put the learned
trial court to caution before relying on her testimony. This is
because she in her narration before the Court has categorically
found narrating that though accused No. 2 is her mother but now she
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is not her mother. It is very difficult to digest that a child would
speak ill about her mother. On the contrary, it is also to be seen that
the child would also not spare her mother in case she is found to be
the killer of her father. It depends upon the human approach and the
attending circumstances. In that background, the contradictory
narration of the witness wherein she claims to have followed her
mother and then found the accused whereas she contradicts herself
by saying that she saw the accused after peeping from the room both
these two versions are most relevant and cannot be brought within
the purview of minor contradictions. That too in a case where the
accused is charged with a heinous offence of one in above. PW-Gull
Parray is her uncle and the child was with him she has admitted that
their land is being ploughed by Gull Parray chances of she coming
under the influence of her uncle cannot be understated, in that
background the trial court ought to have been at loath in relying
upon her testimony.
In as much as the spot map of the scene of crime prepared by
PW-23 does not disclose there being light in the corridor which is an
additional ground to make her testimony unreliable when there was
not light how she has been able to identify accused No. 1.
21. Having said so, the prosecution has squarely relied upon the fact
that both accused made disclosure statements implicating
themselves in the incident of first hitting the deceased with pestle
(Chhota) and then throttling him to death. In this regard, the trial
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court has relied upon the recovery of pestle (Chhota) and identity
card of accused No.1 which is found to have been recovered from a
pit that had been dug in the courtyard. Before examining as to why
the pits were dug, it is necessary to appreciate as to whether there
was clinching evidence, sufficient enough to fasten liability on
accused No. 1 having given recovery of pestle. EXPW (8/1) is
stated to be recovery of pestle (Chhota) which is claimed to have
been recovered at the instance of accused No. 1 in pursuance to a
disclosure statement made on 05.04.2002. PW-33 who is
Investigating Officer has deposed that on 05.04.2002, both accused
have made disclosure statements which were separately recorded.
PW-28, PW-29, PW-30, PW-31 and PW-32 are the witnesses before
whom the disclosure statement has been made. EXTPW (31/1) and
EXTPW-31 are the two disclosure statements which are in the
nature of confession whereby both the accused are alleged to have
resorted to self-incrimination, which on the face of it are hit by
Section 25, 26 of Evidence Act and trial court was also right in
holding so. However, it has relied upon the recovery of pestle
(Chhota) at the behest of accused No. 1. In this regard, the recovery
has been affected from the house of the accused No. 2 and not from
accused No. 1.
22. PW-Ghulam-u-din Parray who is a witness to the seizure of pestle
(Chhota) is categorically found narrating that the said weapon was
kept inside the room which was visible to one and all. PW-33,
Investigating Officer too is found narrating that weapon of offence
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is a common household item. Rest of the witnesses also have stated
that the wooden pestle (Chhota) was recovered from the room of the
deceased, they too have admitted that the same was not hidden thus
was easily accessible. It was argued on behalf of the prosecution
that the place wherefrom weapon of offence was recovered that was
to the specific knowledge of accused No. 1. Such argument is totally
contrary to the “evidence on record” . Because almost every witness
is found narrating that the pestle was recovered from kitchen which
was lying over the shelf and was easily accessible. Once that is the
case, then it cannot be said that the spot where the weapon of
offence was lying was to the specific knowledge of the accused
No. 1. Much stress had been laid that since the wooden pestle bore
blood stains and the same matched with the blood group of the
deceased thus rendering the said recovery admissible and co-related
with the incident. In this regard PW-Dr. Nasir Ahmad Ganie,
Medical Officer, has categorically admitted that the pestle was not
bearing any blood stains at the time it was brought to him, as he has
only given the certificate that the injury could have been caused by
use of such pestle. Needless to mention here that in terms of
medico-legal opinion the injury over the back of the head of
deceased was in the nature of lacerated wound which generally is
caused by blunt object or force that causes skin to tear. On some
occasions it can extend into deeper tissue layers potentially
damaging the underlying structures. Perusal of the medical opinion
would disclose that it nowhere is found disclosing that the injury at
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the back of the head resulted into oozing of blood nor there was any
damage to the underlying structure, rather it is fairly conceded that
there was no fracture by the impact and use of wooden pestle. So the
chances of wooden pestle bearing blood stains are remote that is
why the medical expert has admitted that when it was brought for
expert opinion he could not find any blood stains over it.
23. Whereas, PW-27 the Assistant Scientific Officer, Serology FSL,
Srinagar, had been sent with EXK-24/2002, K-25/2002, K-26/2002,
K-27/2002, K-28/2002, which were in the nature of apparels of
deceased, cushion, pillow, pheran as well as wooden pestle (Chhota)
and the blood stains, on examination, were detected over wooden
pestle (Chhota) as well. If we go by the testimony of PW-27 then
the wooden pestle also bore blood stains and since according to
prosecution, it related to blood group-A with that of the deceased so
there was comparison to disclose that blood stains on wooden pestle
were that of deceased. This runs contrary to the narration of medical
expert as well as the fact that there was no underlying fracture. The
prosecution in the given circumstance had not been able to explain
this contradiction as to how come the weapon of offence had blood
stains when it was sent to the forensic expert but did not have same
when it was shown to the medical expert. It appears from the record
that the wooden pestle (Chhota) was produced before the medical
expert on 05.04.2002 whereas, the items have been forwarded to
FSL much thereafter. Investigating Officer has in his testimony
categorically narrated that until the accused were arrested on
CRA No. 9900005/2014 & CRA No. 07/2017 Page 20 of 34
05.04.2002, there was no incriminating evidence against them to
warrant their involvement in the incident of killing of the deceased
rather he claims that it was after their arrest, when they made
disclosure statement, their involvement surfaced.
24. Scanning of the recorded evidence, led by the prosecution, would
disclose that the place wherefrom wooden pestle (Chhota) was
recovered, as per photographs captured during the course of
investigation, would show that the wooden pestle (Chhota) has been
recovered from a place which could be easily noticed when a person
enters the room (kitchen) rather it was not a place to the special
knowledge of accused No. 1. PW-1 has informed the Police agency
about the incident, who swung into action and as per PW-33, he
seized the dead body and also examined the whole of the house
including kitchen, corridor etc. but could not find anything
incriminating. So had there been blood ridden wooden pestle in the
kitchen of deceased, then such item could have been easily noticed
by the Investigating Officer, which is not the case herein.Whereas
the existence of the wooden pestle (Chhota) has surfaced after the
arrest of the accused on 05.04.2002. The recovery is not made from
a place where the existence of the pestle is known to the accused
only but it was accessible to one and all and the chances of it being
a planted recovery cannot be ruled out. At the cost of repetition
given the testimony of the medical expert when the weapon was
brought to him it had no blood stains then how come the blood
stains were later on noticed by forensic examiner this all would lead
CRA No. 9900005/2014 & CRA No. 07/2017 Page 21 of 34
to the probability that prosecution has resorted to padding of the
evidence.
25. Another circumstance which is sought to be attributed against
accused is the recovery of his identity card from a pit that was dug
in the courtyard. The photographs appended to the charge-sheet
which have been recorded during the investigation would show that
the Identity Card is alleged to have been recovered from one of the
pit that was dug and it is said that PW-Gulzar Ahmad Mantoo had
found Identity Card of the accused and the same was handed over to
the Police. This fact of Identity Card being recovered from the pit is
stated to have been witnessed by PW-6, PW-8, PW-14. PW-15, PW-
16, PW-17 and PW-31. Prosecution claims that this Identity Card
the accused lost while he was digging pit, which he was to use for
burial of deceased after having been killed by both of them. This
Identity Card has not been recovered at the behest of accused No. 1
rather it is fairly admitted that it was noticed by PW-18 who handed
it over to the Police. In-fact the photographs appended on the record
also go on to show that the said witness is found noticing the
Identity Card and then handing it over to the Police. PW-33 the
Investigating Officer has fairly admitted that after examining crime
scene on 02.04.2002 thoroughly,he did not come across any
incriminating material against the accused. It is only after
05.04.2002 that the evidence started surfacing regarding the
involvement of the accused. He admits that during the search of
whole of the house including the household items also, he saw the
CRA No. 9900005/2014 & CRA No. 07/2017 Page 22 of 34
pit that had been dug, however, could not find any Identity Card.
Whereas, in the photographs, the Identity Card is quite visible from
a naked eye. If the PW-18 is to be believed that the Identity Card
was noticed by him then the Investigating Officer is contradicting
this aspect because if he had been to scene of the crime on
02.04.2002, and thoroughly searched the premises to look for the
evidence regarding killing then the Identity Card would most likely
have surfaced on the 02.04.2002 itselfand not waited for the arrival
of the witnesses so that they can recover it and hand it over to the
Police. Defence is right in contending that there are chances of the
Identity Card having been planted after the accused were arrested on
05.04.2002.
26. Prosecution claims that there were two pits one in the courtyard and
one in room of the house of the deceased that were dug for the
purpose of burying the deceased. Assuming that argument to be
true, nowhere in the charge-sheet or in the site plan the width of
those pits is shown because according to PW-1 as well as PW-15,
when accused no. 1 was brought to the Police Station the accused
no. 1told them that he had dug the pit in order to bury the body of
the deceased. So much so that accused had also shown two pits
which he claims to have dug so as to bury the deceased. PW-17 is
found narrating that the pit dug at the courtyard was 4X4 feet in
length/breadth whereas, the one in the room was small one. A
question would thus arise whether on the mere statement of accused,
that he has dug two pits for burying the deceased, could such
CRA No. 9900005/2014 & CRA No. 07/2017 Page 23 of 34
circumstance have been used to fasten liability on the accused of
killing of the deceased, that too when, assuming for the sake of
argument, that deceased had died because of the omission and
commission of the accused, then could have it been possible for the
accused to bury the deceased, who was a full grown adult in a 4 x 4
pit.
27. Learned counsel for the appellant had vehemently contended that
the two pits, which are sought to be drawn as an incriminating
material against the appellants, reliance thereto is also uncalled for
because there is overwhelming evidence on the record of the file not
only from the cross-examination of the prosecution witnesses but
even from the testimony of defence witnesses, that goes on to show
that the deceased belonged to a family whose many members had
turned to militancy and prior to the incident army had raided their
house on information that weapons are stored there and for that
purpose the two places were dug out, however, nothing
incriminating was recovered. So merely because the prosecution
found existence of two pits would not lead to the presumption that
said two pits were dug by the appellants for the purposes of burying
deceased when the evidence of their culpability on the very face of
it is weak and infirm. There appears to be substance in the
arguments so advanced because during trial the defence had elicited
from certain witnesses information about the background of the
deceased and his family members and it was revealed that some of
his family members were involved in providing shelter to the
CRA No. 9900005/2014 & CRA No. 07/2017 Page 24 of 34
militants and the defence has also examined some witnesses, who
too are admitting that few days prior to the incident Army had
searched the house of the deceased under reliable information that
weapons or like material might be lying in the house of the deceased
and in that period the places were dug out, however nothing
incriminating was found. Such an explanation assumes importance
and given the fact that one of the pit was 4×4 in dimension and even
if it is assumed that such a pit was dug in by the appellants for
burying deceased who was an adult member it would have been
very difficult for the accused to bury him in that pit unless they
resorted to breaking of his limbs. So, the hypotheses, on which the
Court has relied that the two pits were dug for the purposes of
burying of deceased is highly improbable
28. That apart, the trial court has relied on Section 106 of the Evidence
Act to draw inference that since the dead body was found from the
house of the deceased and appellants were the two occupants of the
house so they owe an explanation. In this regard case law reported
in case titled ‘Anees Vs. State Government of NCT‘ 2024 SCC
Online SC 757, as appearing in paragraphs 55 and 56 being relevant
is beneficial to be taken note of:
“55. If an offence takes place inside the four walls of a house and
in such circumstances where the accused has all the opportunity to
plan and commit the offence at a time and in the circumstances of
his choice, it will be extremely difficult for the prosecution to lead
directevidence to establish the guilt of the accused. It is to resolve
such a situation that Section 106 of the Evidence Act exists in the
statute book. In the case of Trimukh maroti Kirkan (Supra), thisCRA No. 9900005/2014 & CRA No. 07/2017 Page 25 of 34
Court observed that a Judge does not preside over a criminal trial
merely to see that no innocent man is punished. The Court
proceeded to observe that a Judge also presides to see that a guilty
man does not escape. Both are public duties. The law does not
enjoin a duty on the prosecution to lead evidence of such character,
which is almost impossible to be led, or at any rate, extremely
difficult to be led. The duty on the prosecution is to lead such
evidence, which it is capable of leading, having regard to the facts
and circumstances of the case.
56. We are of the view that the following foundational facts, which
were duly proved, justified the Courts below in invoking the
principles enshrined under Section 106 of the Evidence Act:
a. The offence took place inside the four walls of the house in
which the appellant, deceased and their 5-year-old daughter
were living. The incident occurred in the early morning hours
between 3.30 am and 4.00 am.
b. When the Investigating Officer reached the house of the
appellant, he found the deceased lying in a pool of blood. The
appellant was also present at his house.
c. The defence put forward by the appellant that two
unidentified persons entered the house and inflicted injuries
on the deceased and also on his body is found to be false.
d. The clothes worn by the appellant at the time of the incident
were collected by the Investigating officer. The clothes had
blood stains. According to the Forensic Science Laboratory
report, the blood stains on the clothes of the appellant
matched with the blood group of the deceased ie., AB+.
e. The conduct of the appellant in leading the investigating
officer and others to a drain nearby his house and the
discovery of the knife from the drain is a relevant fact under
Section 8 of the Evidence Act. In other words, the evidence of
the circumstance simpliciter that the appellant pointed out to
the Investigating Officer the place where he threw away the
weapon of offence i.e, knife would be admissible as „conduct‟CRA No. 9900005/2014 & CRA No. 07/2017 Page 26 of 34
under Section 8 irrespective of the fact whether the statement
made by the accused contemporaneously with or antecedent
to such conduct falls within the purview of Section 27 of the
Evidence Act.”
In case titled “Vasant alias Girish Akbarsab Sanavale and
Another Vs. State of Karnataka,” 2025 SCC Online SC 337 the
relevant portion of Paragraph 91 is extracted as under:
“91. Section 106 of the Evidence Act was also pressed into service
by Mr. Singhvi appearing for the State. We are of the view that it
has no application in the present case. It is true that when crime is
alleged to have been committed inside the four walls of the house
and that too in secrecy then the family members residing in the
house are the best persons to know and explain as to what had
actuall0y happened. Let us for the time being proceed on the
footing that the husband was very much present at the time of the
incident however, there is nothing to indicate that he shared
common intention with his mother. When the mother-in-law poured
kerosene on the deceased and set her on fire, it is possible that the
husband out of sheer fright might have run away from his house
after trying to extinguish fire by pouring water on the burning body
of his wife. For applicability of Section 106 so as to implicate the
husband also in the alleged crime the prosecution has to as a
condition precedent lay the foundational facts prima facie
indicating his involvement or participation in the alleged crime.
His sudden disappearance after the incident is not sufficient to
infer common intention.”
So given the aforesaid legal preposition before taking aid of
Section 106 of the Evidence Act for fastening liability on the
accused, the prosecution is required to lead foundational facts so as
to enable the accused to tender an explanation as against such
foundational facts however that does not mean that the prosecution
CRA No. 9900005/2014 & CRA No. 07/2017 Page 27 of 34
is required to lead evidence of such a character, which is almost
impossible to be led or at any rate extremely difficult to be led.
29. Admittedly the body of the deceased has been found in one of the
rooms. Insofar as the presence of appellant Shamim Ahmad Parray
is concerned, as already discussed above, evidence led by the
prosecution linking his presence at the scene of the crime has been
found to be weak and infirm. Inasmuch as recovery of weapon of
offence attributable towards him too is shrouded with suspicion
because the place from where the weapon was recovered was
accessible to one and all. Even the recovery of his Identity Card
from one of the pits, that too as discussed above, has been found to
be suspicious because the evidence led in this regard is not clinching
one. Having said so, once the foundational fact regarding presence
of accused No. 1 is found to be lacking then could it be said that the
co-accused (appellant) Mst. Gulshana, was the main culprit who
wanted to eliminate her husband. The prosecution case has all along
been that it is Shameem Ahmad Parray who was the main culprit
and that Gulshana had only helped him in making entry in her house
before the deceased could come. The so called confession also
proceeds on said assumption that accused No. 1 was the person who
first hit the deceased with wooden pestle from behind and then later
on throttled him to death. Nowhere there is allegation of the other
co-accused having facilitated the former towards commission of
offence. In that background, even foundational facts against
CRA No. 9900005/2014 & CRA No. 07/2017 Page 28 of 34
Gulshana Bano to the effect that she had helped the accused in
affecting killing of deceased are found lacking.
30. Before we take the discussion on Section 106 of the Evidence Act to
logical conclusion, since the prosecution case rests on the strength of
circumstantial evidence, in that background motive of commission
of offence also assumes importance. Prosecution claims that since
there was intimacy between the two appellants who wanted to
eliminate the deceased because he was an eye sore before them, so
they both with common intention got him killed in the manner as
disclosed aforesaid. PW-33 has fairly conceded that until the
accused were arrested on 05.04.2002, there was no connecting
evidence before him to have shown that there was any illicit
relationship between the two. Meaning thereby the story of the two
accused having illicit relations too, has all come to fore after they
were arrested. PW-18 the minor child of the deceased during the
course of her statement is found narrating that accused Shamim
Ahmad Parray used to come to their house, now this part of the
statement she is stating for the first time when examined in the
Court. Whereas, in her statement recorded under Section 161 Cr.P.C
there is not any whisper of it, that goes on to show that the
prosecution in order to foresee, a case against the accused most
probably have resorted to building a theory of the two accused
having illicit relation in order to carve-out motive for commission of
offence thereby rendering its whole case not only suspicious but
suffering from grave infirmities.
CRA No. 9900005/2014 & CRA No. 07/2017 Page 29 of 34
31. In „Raj Kumar Singh Vs. State of Rajasthan‘ AIR 2013 SC 3155,
the issue of suspicion and its appreciation came up for consideration
before Hon‟ble the supreme Court and it was held as under:
“17. Suspicion, however grave it may be, cannot take the place
of proof, and there is a large difference between something that
„may be‟ proved and „will be proved‟. In a criminal trial,
suspicion no matter how strong, cannot and must not be
permitted to take place of proof. This is for the reason, that the
mental distance between „may be‟ and „must be‟ is quite large
and divides vague conjectures from sue conclusions. In a
criminal case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof.
The large distance between „may be‟ true and „must be‟ true,
must be covered by way of clear, cogent and unimpeachable
evidence produced by the prosecution, before an accused is
condemned as a convict, and the basic and golden rule must be
applied. In such cases, while keeping in mind the distance
between „may be‟ true and „must be‟ true, the court must
maintain the vital distance between conjectures and sure
conclusions to be arrived at, on the touchstone of dispassionate
judicial scrutiny based upon a complete and comprehensive
appreciation of all features of the case, as well as the quality
and credibility of the evidence brought on record. The court
must ensure, that miscarriage of justice is avoided and if the
facts and circumstances of a case so demand, then the benefit of
doubt must be given to the accused, keeping in mind that the
reasonable doubt is not an imaginary, trivial or a merely
probable doubt, but a fair doubt that is based upon reason and
common sense.”
32. So, once the evidence regarding complicity of accused No. 1 is
found lacking then merely because the accused No. 2 was present in
the house when the body of the deceased was first noticed by PW-1
would not lead to the presumption that she killed the deceased. This
CRA No. 9900005/2014 & CRA No. 07/2017 Page 30 of 34
is because the foundational facts linking her to the commission of
offence stood not proved and suspicion howsoever grave cannot take
place of proof in absence of legal evidence. It was urged that when
PW-1 enquired from her as to where the deceased is, she is stated to
have told him that the deceased was taken by Army personnel.
Whereas, the fact remained that the body of the deceased; was inside
the room. Assuming that accused-Gulshana Bano lied to the PW-1
regarding presence of deceased, the question would arise that
whether on the strength of evidence available on record could she be
held liable for killing of the deceased merely because she choose to
lie before PW-1 regarding presence of deceased.
33. To this, answer has got to be in negative, because even if she
chooses not to tender any explanation in her statement under Section
342 Cr.PC. Since, any explanation rendered by her is not a
substantive piece of evidence rather it can be used only for
appreciating the evidence led by prosecution to accept or reject it.
When the prosecution case itself does not inspire confidence and
suffers from grave infirmities then merely because accused
Gulshana Bano has not chosen to offer any explanation about the
manner in which the deceased died would not attract Section 106 of
the Evidence Act. Her non- explanation if any cannot be used to fill
up the gaps left by the prosecution witnesses in their depositions.
Once the case of the prosecution is found in-sufficient to sustain
charge against the accused, any inculpatory part of her statement
cannot be made sole basis of her conviction, because the same does
CRA No. 9900005/2014 & CRA No. 07/2017 Page 31 of 34
not come within the purview of evidence in terms of section 3 of the
Evidence Act. An adverse inference can be drawn against her only
and only if the incriminating material stood fully established and to
that any false explanation would act as additional material against
her. She however, has a right to remain silent and she cannot be
forced to become witness against herself. Hence the circumstances
upon which the prosecution have been relying and had persuaded the
court below to hold them guilty, those circumstances have not been
proved beyond doubt.
34. Insofar as the existence of the two pits, one in the courtyard and
another in the room is concerned, in this regard, there is not only the
admission of the prosecution witnesses but even the version of
defence witnesses. DW Mohammad Ibrahim Bhat, DW Mohammad
Amin Parray and DW Nisar Ahmed Parray have been found stating
that certain relatives of deceased were involved in militant activities
and prior to the incident Army had raided his house so as to search
for weapons and there the two pits were dug, however, nothing
could be recovered. In this regard, the appellant Gulshana Bano
though has not offered any explanation, however, she had stated to
PW-1 that deceased had been taken by Army for questioning, such
facts lend certain degree of probability that the two pits that have
surfaced in the house of the deceased might have occurred because
of search operation. In case the two accused wanted to bury the
deceased, nothing prevented them from digging a pit which was fit
CRA No. 9900005/2014 & CRA No. 07/2017 Page 32 of 34
enough to accommodate the body of the deceased and it was not
necessary for them to dug in two separate pits.
35. There is one more issue that requires consideration which is, though
the deceased had met with the homicidal death and given the
evidence against appellant Shamim Ahmed Parray being
untrustworthy then could it be inferred that the co-accused had
subjected the deceased to the assault and then to throttle him to
death. Such inference is highly improbable given the nature of oral
evidence on record. The injury on the back of the head of the
deceased was lacerated wound however, medical expert nowhere has
stated that this injury was the cause of death rather according to
post-mortem report the death has happened due to throttling for
which not an iota of evidence has been collected say finger
impression, bruise marks over the back of the hand, toes or for that
matter even marks of struggle if any. In absence of any such material
on record it would be quite hazardous to hold both the appellants
guilty of offence U/S 302/34 RPC with aid of Sec.106 Evidence Act
on strength of available material and evidence.
36. For the foregoing reasons we regret our inability to uphold the
judgment of the trial Court. Accordingly, while allowing both these
appeals, the judgment of conviction and sentence passed by the trial
Court is set aside. The appellants are acquitted of all the charges,
since they are on bail, shall stand discharged of bail bonds.
CRA No. 9900005/2014 & CRA No. 07/2017 Page 33 of 34
37. For the reasons, the appeals filed by the appellants have been
allowed, the reference for confirmation of the sentence is declined
and Cr. Ref. No. 05/2014 is rejected.
38. The record of the trial Court be returned.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
05.06.2025
Shaista, PS
Whether the judgment is reportable: Yes/No.
CRA No. 9900005/2014 & CRA No. 07/2017 Page 34 of 34
Shaista Rashid Shah
I attest to the accuracy and
authenticity of this document
05.06.2025 13:25