Jammu & Kashmir High Court
Mohd. Shafi vs Ut Of J&K Through Sho on 13 March, 2025
Bench: Sanjeev Kumar, Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 06.03.2025
Pronounced on: 13 .03.2025
Crl A(D) No.24/2023
c/w
Crl Ref (L) No.8/2023
Mohd. Shafi, aged 34 years S/o Mohd. Wasim
R/o Indh, Tehsil Gool District Ramban Presently lodged in District
Jail, Udhampur, J&K ...Appellant(s)
Through:- Mr. Imtiaz Mir, Advocate
V/s
1. UT of J&K through SHO, Police Station, Gool
District Ramban
2. Superintendent, District Jail, Udhampur ...Respondent(s)
Through:- Mr. Pawan Dev Singh, Dy. AG
Coram:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
Sanjeev Kumar J
1. Instant criminal appeal filed by the convict-Mohd. Shafi under
Section 410 of the Code of Criminal Procedure Samvat, 1989
[“Cr.P.C. 1989″] arises out of a judgment of conviction dated 16th
August, 2023 and order of sentence passed on the same day by the
learned Principal Sessions Judge, Ramban [“trial Court”] in File
No.48/Challan titled State v. Mohd. Shafi (FIR No.89/2013). Vide
judgment and order impugned, the appellant has been convicted for
commission of offence punishable under Section 302 of Ranbir Penal
Code (RPC) and sentenced to rigorous imprisonment for life and a fine
of Rs.10,000/-. The appellant has been directed to undergo further
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imprisonment for six months in case he makes default in payment of
fine.
2. Before we advert to the grounds of challenge urged by Mr.
Imtiaz Mir, learned counsel appearing for the appellant, we deem it
appropriate to briefly state the prosecution case.
3) On 30th October, 2013, Police Post, Indh received an
information through reliable sources that a minor boy, namely Mohd.
Suleiman son of the appellant has died under suspicious circumstances
and that his dead body was lying in the house of appellant. A report in
this regard was entered in the Daily Diary Register of the Police Post
and inquest proceedings under Section 174 Cr.P.C were entrusted to
ASI Nizam Din, Incharge Police Post, Indh. Mr. Nizam Din went on
spot, photographed the place of occurrence along with dead body of
the deceased, prepared the site plan, seized the dead body and sent the
same for postmortem at PHC, Gool. The postmortem on the dead body
of the deceased was conducted by the Medical Officer present in PHC,
Gool. The wearing apparels of the deceased having smell of insecticide
(Nuvan) were also seized during the postmortem. Dead body, after
completion of the legal formalities, was handed over to the relatives
for performing last rites. Statement of mother of the deceased, PW-8
Rubina Begum was recorded by the ASI Nizam Din under Section 175
Cr.P.C. Viscera collected from the dead body of the deceased child
was also sent for chemical examination.
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4. In the inquest proceedings, it surfaced that mother of the
deceased PW-8 Rubina Begum and appellant-Mohd. Shafi were
husband and wife having contracted their marriage about 4/5 years
prior to the occurrence. The deceased child, aged two years and one
girl child aged 6/7 months were born out of their wedlock. It also came
to fore that the relations of the husband and wife were strained, in that,
the appellant was adamant to contract second marriage. The mother of
the deceased, PW-8 Rubina Begum would insist that the appellant
could not contract second marriage unless he provides her and her two
children adequate maintenance. It also came to be divulged during the
inquest proceedings that two months prior to the occurrence, the
appellant- Mohd. Shafi had made the deceased child to drink kerosene
oil. The child vomited the oil out and was, thus, saved. The matter was
settled, but the relation between the two became more strained. It was
further concluded during the inquest proceedings that when PW-8
Rubina Begum had gone to attend the call of nature in the washroom at
about 5.30 a.m. on 30th October, 2013, the appellant got an
opportunity, as per plan, and administered poison to the child with an
intention to kill him in his bed. In the meanwhile, PW-8 Rubina
Begum came back in the room and saw the child in restless condition.
Froth was coming out of the mouth of the child. She took the child
immediately to PW-3 Molvi Abdul Rashid to drive out evil spirit.
However, Molvi Abdul Rashid advised her to take the child to the
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doctor as the froth coming out of the mouth of the child smelled like
poison.
5. PW-8, Rubina Begum rushed to the doctor but the child
succumbed on the way. The inquest officer completed the inquest
proceedings and delivered the file to the Police Station concerned with
the request to register formal FIR in the matter. This is how FIR
No.89/2013 for offence under Section 302 RPC came to be rregistered
in the Police Station, Gool and investigation commenced. The SHO,
Police Station, Gool, PW-15, Mushtaq Ahmed conducted the
investigation. The inquest proceedings file containing the inquest
proceedings submitted by the inquest officer was seized, the statement
of witnesses under Section 161 Cr.P.C. and 164-A Cr.P.C. were
recorded. Postmortem report was obtained by the Investigating Officer
from PHC, Gool. The appellant was taken into custody and arrest
memo was prepared. During his custody with the police, the appellant
made a disclosure statement, which led to the recovery of a bottle
(Nuvan container) having some left over Nuvan in it. The bottle was
sealed and sent to FSL for chemical examination. Report from the
chemical analyst from FSL was obtained. The Investigating Officer
wrapped up the investigation with the conclusion that the death of the
deceased child had occurred due to poison administered to him by the
appellant-Mohd. Shafi. Accordingly, charge-sheet was laid before the
Court of Chief Judicial Magistrate, Ramban on 28.01.2014, who
committed the same for trial to the trial Court on 11.02.2014.
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6. Charge for commission of offence under Section 302 RPC was
framed by the trial Court against the appellant on 03.06.2014. Contents
of the charge were read over and explained to the appellant, who
pleaded not guilty to the charge and claimed to be tried. The trial Court
directed the prosecution to produce its evidence. The prosecution
examined in as many as 15 witnesses over a period of about four years
and finally prosecution evidence was closed on 09.04.2018. One of the
prosecution witnesses i.e. Chemical Analyst of the FSL in respect of
the report submitted by him was examined later on 18.07.2022. The
incriminating circumstances appearing in the prosecution evidence
were put to the appellant and his statement under Section 342 Cr.P.C
was recorded. The Appellant denied his involvement in the
commission of crime and recorded the statements of DW-Gulam
Mohd. and DW-Mohd. Rustam in defence. Thereafter analyzing the
prosecution evidence and evidence produced in defence, trial Court
came to the conclusion that there was sufficient evidence on record led
by the prosecution to connect the appellant with the commission of
offence under Section 302 RPC. Accordingly, the appellant was
convicted for offence under Section 302 RPC and sentenced to
imprisonment for life and fine as stated above in terms of the
impugned judgment of conviction and order of sentence.
7. The appellant has challenged the impugned judgment of
conviction and consequential order of sentence primarily on the
following grounds:-
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i) That the trial Court has failed to appreciate that the prosecution
evidence was highly contrary, insufficient and inspiring no
confidence of the Court. The trial court failed to take note of the
fact that most of the witnesses cited by the prosecution had not
supported the prosecution case and stood declared hostile by the
prosecution.
ii) That the trial Court has put undue weightage and credence on
the lone statement of PW-8 Rubina Begum, whose version
before the Inquest Officer, Investigating Officer, before the
Magistrate under Section 164-A Cr.P.C and before the trial
Court was completely at variance with one another and,
therefore not trustworthy. Statements of PW-Molvi Abdul
Rashid, PW-Hakim Din, PW-Barkat Ali, PW-Bashir Ahmed,
PW-Chirag Din do not support the version put forth by PW-8
Rubina Begum. The statement of PW-8 Rubina Begum was
recorded by the Inquest Officer after 21 days whereas her
statement under Section 164-A Cr.P.C. was recorded after more
than 43 days of the occurrence and that puts the entire case of
prosecution in the realm of grave suspicion.
8. Per contra, Mr. Pawan Dev Singh, learned Dy. AG, would
argue that none of the grounds of challenge urged by the learned
counsel for the appellant are tenable in the face of clear and clinching
evidence on record with regard to the involvement of the appellant in
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the commission of murder of his minor son. He would, therefore,
support the reasoning given by the trial court in the judgment
impugned to connect the appellant with the commission of offence
punishable under Section 302 RPC.
9. Having heard learned counsel for the parties and perused the
material on record, we are of the considered opinion that the
prosecution has miserably failed to lead any cogent and trustworthy
evidence to connect the appellant with the commission of offence
punishable under Section 302 RPC. We do not find any reliable and
trustworthy evidence on record, which proves beyond reasonable doubt
that the murder of minor child was committed by the appellant and
nobody else.
10. Indisputably, there is no eye-witness to the crime in which a
minor child lost his life. It is true that in the inquest proceedings it has
come to be established that the death of the minor child was homicidal.
This is also substantiated by the postmortem report and the statement
of PW-12 Dr. Sheikh Yasir Nazir and statement of PW Pawan Abrol,
FSL expert. It is amply proved by scientific evidence led by the
prosecution that the death of the minor child occurred due to
consumption of poison i.e. organophosphourus insecticide. In the
absence of contrary evidence, even suggesting that the poison was
taken by the child accidently, it has to be taken as proved that the
poison „organophosphourus insecticide’ was administered to the child
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by someone. Who has administered that poison to the child is a
question that begs determination in light of the evidence on record.
11. PW-3 Molvi Abdul Rashid is an independent witness, who was
approached by PW-8 Rubina Begum along with deceased son for
treatment. As per his deposition, Rubina Begum came to his house at 7
a.m. on 30.10.2013. She was carrying her two years old child, who was
critically sick. He states that he called the appellant and asked him to
take the child to doctor, as the condition of the child was serious.
While the appellant and his wife Rubina Begum were coming back
home, the child expired. The witness states that on coming to know of
the death of the minor child, he along with his neighbourers came to
the house of the appellant for condolence. The wife of the appellant
was saying that she would not allow the child to be buried till the
police came on spot. The police was called and Rubina Begum
demanded medical examination of the dead body of the deceased child.
The dead body of the deceased child was shifted to Hospital, Gool.
Appellant along with some other persons accompanied the police to
the hospital. He further states that the appellant was arrested on 3rd
days after the occurrence and this was done by the police on the PW-8
Rubina Begum expressing her doubts about the involvement of the
appellant in administration of poison to the deceased child. He
further states that after about one month i.e. on 2nd December, 2013,
the police came to the house of the appellant and called the witness
also. The appellant was brought at about 9 in the morning. The police
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officials told the witness that one bottle had been recovered. He was
called to the Police Station on 03.12.2013 and his statement was
recorded and his signatures taken on the statement. The witness
testified the correctness of the seizure memo of the dead body, clothes
of the deceased and spurdnama of the ring. Since the witness did not
support the prosecution case entirely, in particular, the recovery of the
bottle containing left over poison, as such, on the request of the PP, he
was declared hostile. During cross-examination by the learned PP, the
witness clearly deposed that the appellant had not made any disclosure
in his presence nor any recovery of any bottle containing the left over
poison was made at the instance of the appellant in his presence.
12. PW-Hakim Din has deposed before the trial Court that he heard
a rumour that the deceased child had died due to taking of some
medicine. He, however, does not know anything about medicine nor
about the person who had administered the same to the deceased child.
He has also denied having any knowledge about the relation between
the appellant and his wife Rubina Begum. Obviously, the aforesaid
witness, too, was declared hostile by the prosecution and subjected to
cross-examination. The witness, as is evident from his statement, has
not changed his stance even during cross-examination by the PP. He
has denied having seen the appellant making any disclosure statement.
He is categoric in his statement that the bottle allegedly recovered by
the Investigating Officer was already wrapped in a newspaper and was
then sealed by the police in cloth.
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13. PW-Abdul Rashid in his testimony before the trial court deposed
that he heard that the appellant had administered Nuvam to his child
but does not know why he did so to his child. He has further deposed
that during the time, occurrence happened, the child was already sick.
In short, this witness, too, is of no help to the prosecution.
14. PW-Barkat Ali has in his deposition stated that when he heard
about death of the minor child of the appellant, he went to his house
where wife of the appellant Rubina Begum was saying that the
deceased had taken some medicine, as a result whereof, the child had
died. On the request of the PP, this witness, too, was declared hostile
and subjected to cross-examination by the learned PP. He has
maintained his stance even during cross-examination by the PP. He has
also stated that the appellant was arrested and taken to the Police
Station three days after the death of the deceased and that the appellant
was arrested on the allegation of PW-Rubina Begum that it was the
appellant, who had administered poison to the deceased child leading
to his death.
15. These were some of the star witnesses of the prosecution, who
have not supported the prosecution case at all and have instead stated
in unison that nobody had seen any person administering poison to the
child. These witnesses clearly rule out the presence of any eye-witness
at the time of occurrence. PW-Molvi Abdul Rashid and PW- Hakim
Din, the witnesses to the disclosure statement made by the appellant,
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which led to the recovery of the Nuvan bottle from the field, have
completely resiled from their statements recorded by the police. They
have rather stated that no Inqshaf (disclosure) was made by the
appellant in their presence nor any bottle recovered at his instance in
their presence. They are categoric in their deposition that the seized
bottle was already in possession of the police and they were only asked
to sign the recorded statements in the Police Station.
16. PW-9 Chirag Din, too, is a witness, who was declared hostile by
the prosecution, as nothing could be elicited by the prosecution from
him. PW-Nizam Din, the prosecution witness, who has prepared the
inquest report in terms of Section 174 Cr.P.C. He has explained the
manner in which he conducted the inquest proceedings. Apart from
saying many things about the incident, the witness has stated that when
he visited the spot immediately after the occurrence, mother of the
deceased PW-Rubina Begun did not make any statement with regard to
the involvement of the appellant in the commission of the crime. She
was, however, saying that she would not allow the child to be buried
unless cause of his death is asserted. If we were to believe the
statement of PW-Nizam Din, it is quite evident that the mother of the
deceased, PW-Rubina Begum, who ultimately named the appellant as
perpetrator of the crime, was not even aware about the cause of death
and wanted it to be ascertained by the police. In the later part of his
statement, he has, however, mentioned that the wife of the appellant
had told him that the appellant was the person, who had administered
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poison to the deceased child, however, he did not record her statement
at that time, although he had the authority to do so.
17. From a reading of the statement of the Inquest Officer, PW-
Nizam Din, it is abundantly clear that he has completely messed up the
inquest proceedings. If we were to believe him that Rubina Begum had
disclosed to him on spot that the child had died due to administering of
poison by the appellant, the inquest proceedings could have been
wrapped up then and there and FIR registered. This, however, has not
happened. It is surprising to note that the Inquest Officer did not even
think it proper to record the statement of the mother of the deceased,
Rubina Begum wherein she had, as per the witness, clearly indicated
the involvement of the appellant in the commission of crime. It is, thus,
clear that this part of the statement of the Inquest Officer is not
truthful. There is ample evidence on record to show that on the date of
occurrence, mother of the deceased child, who was first to notice the
froth coming out of the mouth of the deceased was not even sure about
the cause of critical sickness of the child. As has come in deposition of
PW-Molvi Abdul Rashid, the child in critical condition was first taken
to him for warding off evil spirit and not to the hospital for medical
treatment. It is, thus, clear that when the child passed away and was
subjected to postmortem examination by the doctor, it came to fore for
the first time that the death of the deceased had occurred due to
administering of poison. It is at this stage, PW-Rubina Begum, who
admittedly had strained relations with her husband, doubted the
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involvement of the appellant in the commission of crime in question. It
is because of this reason, it has come in the evidence of the prosecution
that the appellant was arrested on the third day of the occurrence by the
Inquest Officer, though his arrest has been shown much later in papers.
He was formally arrested on papers in the month of November, 2013
when the FIR was formally registered at Police Station, Gool. Rubina
Begum is, thus, the only prosecution witness left, who has to some
extent tried to support the prosecution case.
18. PW-Rubina Begum, who is a star witness of the prosecution, has
in her deposition before the trial Court stated that she met her husband
somewhere in Srinagar where both of them were working as domestic
helps in two adjoining houses. They developed friendship, which led to
contracting of marriage. She has further stated that out of the wedlock,
two children were born. Girl child is alive whereas her son has been
killed by her husband. She has tried to introduce motive in her
statement by stating that the appellant had been pressuring her to go to
the house of his married sister with a proposal of his marriage with the
sister of his brother-in-law. She would state that she refused to do so
and insisted that if he wanted to contract second marriage then he must
construct a pacca room for her and give share of the property to her
son. Her deposition, if taken as correct, on its face value, would clearly
prove the fact that she was not an eye witness to the administration of
poison by the appellant to the deceased child. In her deposition she has
clearly stated that when she returned from the washroom, she saw
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some blue colour water coming out of the mouth and nose of the
deceased child. She also claims to have seen the appellant trying to
hide Nuvan bottle in his pocket. When we look on the statement PW-
Rubina Begum, who is cited as eye-witness by the prosecution, we
clearly find that she has not stated the truth, particularly, with regard to
the hiding of Nuvan bottle by the appellant in his pocket. Had this
happened in her presence, she would have been the first person to
disclose it to the PW-Molvi Abdul Rashid, who was approached in the
first instance for treatment of the ailing child. She would have
definitely told the police and the people gathered in her house to
mourn the demise of her minor child. She would not have waited for
twenty one days to make statement divulging that death of the
deceased child had occurred due to administering of poison by the
appellant.
19. From the evidence on record, it is clear that PW-Rubina Begum
was not clear either about the cause of death or the person who has
caused it till postmortem report revealed that death had occurred due to
consumption of poison by the deceased. She expressed doubt about the
involvement of the appellant. Although, the police did not record
statement of the PW-Rubina Begum in this regard, yet on the basis of
suspicion shown by her, the appellant was picked up on third day of
occurrence for interrogation. It is a different matter that he was not
shown arrested by the police and his arrest was shown only after
registration of the FIR.
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20. PW-Rubina Begum had projected a story in the statement
recorded by the police that two months prior to the alleged occurrence,
the appellant had made the child to drink kerosene oil but the said part
of the statement was abandoned by her when she made her deposition
before the trial Court. She has also stated in her statement that a night
before she had been subjected to severe beating by the appellant but
this was not so stated by her to ASI Nizam Din, who conducted the
inquest proceedings, when he visited the place of occurrence. It is
because of this reason, she was never medically examined to find out
any injury on her body. The witness has made several improvements
while making her deposition before the trial Court, which runs counter
to what she stated before the Magistrate in her deposition under
Section 164-A Cr.P.C. If we discord the testimony of PW-8 Rubina
Begum, the entire case of the prosecution falls flat on the ground.
21. The scientific evidence i.e. testimony of the doctors, who
conducted the autopsy and the statement of chemical analyst of FSL
would only prove the cause of death of the deceased child and is not
sufficient in itself to connect the accused with the administration of
poison to the deceased child.
22. The trial Court has analyzed the evidence on record and has
found established that the death of the deceased child had happened
due to the administering of poison organophosphourus insecticide.
This finding of fact has been arrived at by the trial Court on the basis
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of oral testimony of the prosecution witnesses and the scientific
evidence on record. We have also discussed the evidence herein above
and see no reason to differ with this finding of fact returned by the trial
Court. We, however, do not find any evidence, oral or scientific, which
demonstrates beyond any reasonable doubt that the poison was
administered by the appellant to the deceased child with an intention to
kill him.
23. There is no direct evidence to the occurrence and the
circumstantial evidence available on record is only in the shape of
motive and the disclosure statement made by the appellant leading to
the discovery/recovery of the bottle containing left over poison. So far
as motive is concerned, it has come on record and sufficiently proved
by the prosecution that the relations between the appellant and his wife
PW-Rubina Begum were strained. Despite strained relations, they were
still staying together. The motive, which is projected by the
prosecution is that the appellant wanted to contract second marriage
whereas his wife Rubina Begum wanted him to first settle the share of
his children and make provision of construction of a room and
maintenance.
24. Motive, in the instant case, as projected by the prosecution, is
double edged. This could be possible motive for the appellant to take
extreme step of committing murder of his son and sparing his daughter
but it could also be a motive for the wife of the appellant-Rubina
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Begum to falsely implicate the appellant. That apart, we do not find
that motive sought to be proved by the prosecution for the commission
of crime in question by the appellant is so strong that a person of
ordinary prudence would believe the reason for commission of murder
of his own child by the appellant. If the appellant wanted to get rid of
his children then he would not have spared his other child i.e. daughter.
25. Even if, we were to accept that the prosecution has succeeded in
proving motive, yet in the absence of other circumstances constituting
an unbroken chain leading to the only hypothesis inconsistent with the
innocence of the appellant, the appellant cannot be convicted for the
offence, he was charged with by the trial Court.
26. We are aware and as has been held by the Hon‟ble Supreme
Court in the case of Bhupinder Singh v. State of Punjab, AIR 1988
SC 1011, the murder by poison is invariably committed under the
cover and cloak of secrecy. Nobody will administer poison to another
in the presence of others. The person who administers poison to
another in secrecy will not keep a portion of it for the investigating
officer to come and collect it. The person who commits such murder
would naturally take care to eliminate and destroy the evidence against
him. When we examine the case in hand in the light of legal position
adumbrated in Bhupinder Singh‟s case (supra), we clearly find that
though the prosecution may have succeeded in establishing that the
death of the deceased child occurred due to administering of poison
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(organopharphorous) to child, yet there is no evidence on record to
prove that the poison was administered by the appellant. The
disclosure statement and the recovery of the bottle having left over
poison have not been proved at all.
27. In light of the evidence on record, it is difficult for us to believe
the prosecution story that the appellant administered poison to
the child, which he had brought in a small Nuvan bottle and that
after administering the poison, the appellant kept the bottle with
left over poison hidden in the fields, which the prosecution
recovered after more than one month of the occurrence. As is
rightly pointed by the Supreme Court in Bhupinder Singh‟s case,
a person who administers poison to kill a person will not keep
the left over poison, if any with him for months together and
wait for the police to come and recover it from him. The natural
conduct of such person is to destroy the evidence by throwing
away the left over poison, if any, after administering the same to
his victim.
28. Viewed from any angle, we do not find the judgment of
conviction recorded by the trial Court in conformity with the evidence
on record and in consonance with law. In the absence of ocular
evidence, it was incumbent upon the prosecution to prove its case on
the basis of circumstantial evidence. Law with regard to proving the
case, which rests on circumstantial evidence, is well settled.
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29. In Sharad Birdichand Sarda v. State of Maharashtra, AIR
1984 SC 1622, Hon‟ble the Supreme Court elaborated the five golden
principles of circumstantial evidence laid down in Hanumant v. State
of M.P., AIR 1952 SC 343, which are being followed consistently in
the later cases. These five principles are as follows:-
“1. The circumstances from which the conclusion of guilt is
to be drawn should be fully established.
2. That facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty.
3. The circumstances should be of a conclusive nature and
tendency.
4. They should exclude every possible hypothesis except the
one to be proved, and
5. 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 that act must have been done by the
accused.”
30. When we examine the case on hand in light of the settled legal
position, we are convinced that the prosecution has not established the
circumstances forming an unbroken chain leading to the only
hypothesis inconsistent with the innocence of the appellant.
31. For the foregoing reasons, we are inclined to accept this appeal
ad reverse the judgment of conviction passed by the trial Court.
32. Ordered accordingly.
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33. As a result, the impugned order of sentence is also set aside. The
appellant is directed to be set at liberty forthwith.
33. Reference received from the trial Court stands disposed of
accordingly.
(Moksha Khajuria Kazmi) (Sanjeev Kumar)
Judge Judge
JAMMU
13.03.2025
Vinod,PS
Whether the order is speaking : Yes
Whether the order is reportable: Yes
Vinod Kumar
2025.03.13 12.05
I attest to the accuracy and
integrity of this document
Jammu