Jammu & Kashmir High Court – Srinagar Bench
State Of J&K Through Sho P/S Pahalgam vs Fayaz Ahmad Bajad on 25 July, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
CrlA (AD) No. 8/2019
Reserved on: 03.07.2025
Pronounced on: 25.07.2025
State of J&K Through SHO P/S Pahalgam
...Appellant(s)
Through: Mr. A. R. Malik, Sr.AAG.
VERSUS
1. Fayaz Ahmad Bajad
2. Mohammad Iqbal Bajad
Sons of Ali Bajad
3. Ali Jan Bajad
S/o Khazan Bajad
Residents of Thehru Tehsil Pooni, District Reasi.
...Respondent(s)
Through: Mr. Mir Reyaz, Advocate.
CORAM:
HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR JUSTICE SANJAY PARIHAR, JUDGE.
JUDGMENT
Sanjay Parihar, J:
1. Impugned in this appeal by the State is the judgment dated
06.11.2018 passed by the learned Additional Sessions Judge, Anantnag,
(‘the Trial Court’) in case titled ‘State Vs. Fayaz Ahmad Bajad & Ors.’,
FIR No.08/2016 Police Station, Pahalgam for the commission of offences
Page |2punishable under Sections 376/511, 451, 34, 302 RPC, by virtue of which
the respondents herein have earned acquittal.
2. Before we deal with the grounds of challenge urged by the
appellant in support of the appeal, it is necessary to notice the prosecution
case in short.
3. An application was received by SHO Pahalgam from SDPO
Pahalgam, wherein the complainant has stated that on 24.06.2015 the
deceased Altaf Bajad entered into his own tent at Aadu at 1:00 PM where
he saw his wife (XXX) in a compromising position with the accused No.
1, resulting in the quarrel between the deceased and accused No. 1. The
accused No. 1 with the help of his family members had killed the
deceased and then spread the rumour that the deceased had died due to
fall from the tree. The accused persons have also threatened the
prosecution witness No. 2 (XXX), who happens to be the wife of the
deceased, and that was the reason that she did not narrate her vows before
any person. Earlier, one more application was moved by the complainant
on 30.06.2015, where proceedings under Section 174 Cr.PC were
initiated by the Executive Magistrate from 30thJuly 2015 and during
inquest proceedings the statement of the witnesses were recorded and
then the deceased was again buried. As per the documents in the form of
affidavit and as per the report of the doctors, the death of the deceased
was not natural and also was not due to fall from the tree but actually the
deceased was killed by the accused persons who were also residing near
Page |3
the tent of the deceased. FIR No. 08/2016, in this regard, for the
commission of offences punishable under Sections 376/511, 302 RPC
was registered and during investigation the statement of the witnesses
were recorded under Section 161 Cr.PC and statements of some of the
witnesses were also recorded u/s 164-A Cr.PC. The site map was
prepared and accordingly the charge sheet was presented before the court
of Judicial Magistrate 1st Class, Aishmuqam against the accused persons
under Sections 376/511, 451, 302/34 RPC. The case was committed to
the court of learned Principal Sessions Judge, Anantnag who assigned the
case to the learned Additional Sessions Judge, Anantnag for trial.
4. The trial court framed charges against the accused-respondents for
offence under Sections 376/511, 451, 302/34 RPC. The respondents
denied the charges framed against them and claimed to be tried. The
prosecution was allowed to produce its evidence and the evidence was
closed on 30-06-2018 when the prosecution failed to produce its witness
Nos. 6, 9, 12, 13, 21 and 22 despite repeated directions in this regard. The
incriminating circumstances appearing in the prosecution evidence were
put to the accused-respondents and their statements under Section 342
CrPC were recorded. They denied the allegations levelled against them as
also the incriminating circumstances appearing in the prosecution
evidence against them.
5. Based on the evidence produced by the prosecution, the trial court
found that the prosecution had desperately failed to produce the clinching
Page |4
and trustworthy evidence against the accused persons and, as such, the
prosecution has failed to prove the case against the accused persons beyond
reasonable doubt. Accordingly, the case was dismissed and the accused
persons were acquitted from the charges levelled against them.
6. We have heard the learned counsel for both the sides and perused the
record available on file.
7. Learned counsel for the appellant,during the course of arguments, has
laid emphasis on the argument which has also been taken before the trial
court that, the trial court had not appreciated the evidence of prosecution
witness No.2, who happens to be the wife of deceased and who stated that
she was alone in the tent when accused No.1 entered into her bedding,
removed her trousers and had sexual intercourse with her, in the meantime
her husband (the deceased) came there and as soon as he saw the accused
No.1 quarrel started between them, and during the quarrel other two
accused persons entered into the tent and started thrashing the deceased by
fists and also caught hold of his neck. The said witness categorically stated
that due to beating the deceased died. That, the trial court has not applied its
judicial mind while considering the prosecution evidence and has, thus,
adopted a hyper technical view while disbelieving the case of the
prosecution; another limb of the argument raised by the learned counsel for
the appellant is relatable to the affidavit executed by the accused persons
before the ‘Baradari’ wherein the accused have confessed that they have
committed the offence. It is argued that in case the accused persons would
Page |5
not have committed the offence of murder then they would not have
promised to pay an amount of Rs.4.00 lacs as compensation towards the
complainant, but such important piece of evidence has not been appreciated
by the learned trial court. Further submission of learned counsel for the
appellant is that as per the settled position of law, the trial court was duty
bound to take coercive measures so as to ensure attendance of prosecution
witnesses if the learned trial court has found that the prosecution has failed
to produce witnesses for recording their evidence, but without doing so the
learned trial court cannot arrive at a finding that the prosecution has not
produced other witnesses and that the prosecution had failed to examine all
the witnesses. The further ground of challenge to the judgment of acquittal
is that, the impugned judgment has been delivered on technical grounds.
The larger picture whether the ingredients of the offence were fulfilled by
the evidence led by the prosecution has been ignored in toto by the trial
court. When the evidence led by the prosecution before the trial court is
perused it inspires confidence that the accused persons have committed the
crime for which they deserve to be convicted.That, the prosecution has
proved the guilt of the respondents-accused beyond any reasonable doubt
by leading cogent and trustworthy evidence during the course of trial. There
is a settled position of law that the standard of proof as epitomized by the
phrase ‘beyond any reasonable doubt’ need not to be over- stretched. It has
been laid down in various judgments of the Hon’ble Supreme Court that
while returning a finding as to whether a particular fact stands proved,
Page |6
disproved or not proved, the courts are required to apply the test of man of
ordinary prudence as envisaged under Section-3 of the Evidence Act. But
the trial court has completely failed to appreciate the said mandate of law
and has grossly erred in law while rendering the impugned judgment and
that, the prosecution has succeeded to prove its case against the respondents
for having murdered the deceased Altaf Bajad and that, the medical opinion
of the doctor brought on record link the accused with the commission of
offence. The statement of the witnesses coupled with other evidence also
shows that the prosecution has been able to prove its case against the
accused persons beyond any shadow of doubt; that, the impugned judgment
is not sustainable for the reason that the trial court has not rightly
appreciated the evidence, which was brought on record by the prosecution
during the trial of the case. Lastly it was submitted that the evidence and
material produced by the prosecution has proven the guilt of the accused
persons beyond any shadow of doubt. Therefore, there was no option left to
the learned trial court but to record conviction, however, instead the
accused-respondents have been acquitted of heinous charge leveled against
them.
8. After going through the evidence on record and also having taken
care to peruse the explanation tendered by the respondents (accused) to the
incriminating material to which they have tendered explanation in terms of
Section 342 Cr.PC, wherein they are found stating that though the case
against them is false and that they were made to sign an affidavit, but no-
Page |7
where in the said the affidavit they had admitted their involvement in the
incident. That, under the influence of police, the complainant party got the
affidavit executed from them in order to extract monetary consideration
from the respondents which they refused to accede and that the deceased, as
per the version of his wife, had fallen from the tree and the respondents had
nothing to do with the incident. The respondent-Fayaz Ahmad Bajad had
also denied having any intimacy with the wife of the deceased (PW-2) and
also denied having done any untoward incident with her. So, all the
respondents-accused have tendered explanation that they did not admit their
involvement in the incident before the “Baradari”, as is being projected.
9. We had an occasion to examine the said affidavit, which is recorded
as EXPW-II and bears thumb impression of the respondents and appears to
have been executed by accused-Ali Jan and Fayaz Ahmad Bajad claiming
to have been negligent and for that negligent act would be compensating the
complainant party by paying Rs.4.00 lacs. The said affidavit is claimed to
have been executed in presence of Chowdhary Abdul Majid Bajad, Haji
Gull and Ghulam Rasool.
10. On close scrutiny of EXPW-II, it reveals that there is not even a
whisper of the respondents to have admitted their involvement in the
incident dated 24.06.2015.
11. Be that as it is, the issue of this document stated to be in the nature of
extra judicial confession, as claimed by the prosecution, would be dealt at
an appropriate stage.
Page |8
12. During the course of hearing, the appellants were fair enough to
concede that it is PW-2 who is a star witness and the trial court has failed to
appreciate her testimony in its appropriate perspective and has also not been
able to appreciate that she was under threat of the respondents that
prevented her from divulging the incident to PW-1 when he came to know
of the death of the deceased.
13. Given the incident, the prosecution case is that it was respondent-
Fayaz Ahmad Bajad, who, with an intention to commit illegal sexual
intercourse on PW-2, forced his entry in the premises/tent of the deceased
where his wife (XXX) was alone, who subjected her to forcible sexual
intercourse and it was in that incident her husband suddenly came in the
tent that resulted in the fight between accused No.1 and deceased and
former was joined by other accused also who thereafter inflicted murderous
assault on the deceased thereby killing him and thereafter placed his body
underneath a tree and then spread a rumor that he died due to fall.
14. This in a nutshell is the prosecution case and the manner in which the
said incident took place. Examination of the evidence would show that
except PW-2 there is no other eye witness to the incident.
15. PW-Manzoor Ahmad Bajad, the informant and the brother of the
deceased,who had fairly conceded that he came on spot only after the
deceased had expired and on enquiry he was told by accused No.3 that the
deceased has been killed by one Wazir, who was the paramour of PW-2-
wife of the deceased. When he enquired from the wife of the deceased, she
Page |9
told him that the deceased died because of fall but after she went to her
parental house, there she told him that it was the accused No.1 who had
killed the deceased. On that basis he lodged a report. He fairly concedes
that the wife of the deceased has given the contradictory version and also is
found stating that the wife of the deceased was threatened by the accused of
dire consequences.
16. PW-Abdul Aziz Bajad, Gul Mohammad Darsaroo, Ghulam Rasool
Ganai,too are not witness to the incident rather have been informed of the
death of the deceased by PW-1 and thereafter they came on spot.
17. So, from the testimony of aforesaid witnesses it is absolutely clear
that none of the aforesaid have witnessed the incident and even if they are
found narrating that the accused persons have any role to play in the death
of the deceased that was on the strength of hearsay and nothing else.To that
extent, their evidence becomes unreliable.
18. Having said so, we now turn to the statement of PW-2 as the
appellant has vehemently contested the acquittal of accused on the strength
of the finding being perverse.
19. PW 2-(XXX) in her statement, on the one hand says that it was
between 11 AM to 12 noon when she was in her tent and that it was
accused No.1 who entered there and committed forcible sexual intercourse
with her, meanwhile, her husband returned back and on seeing her in
compromising position, the two had a fight which was joined by other
accused later on. She also claims that even the wives of accused Nos.2 and
P a g e | 10
3 later also joined and that due to thrashing and beating by accused, her
husband died. She admits that she did not divulge the above narration to the
brother of the deceased or to the police after the later had come on spot to
enquire. It is relevant to state here that PW-1 on noticing about the death of
the deceased and also the narration of this witness believed that the
deceased may have died because of fall, therefore, he was buried. Later on
he states to have been told by PW-2 that it was accused No.1 who
committed the incident. In-fact what transpires is that PW-Manzoor Ahmad
Bajad had filed back to back complaints i.e., on 30.06.2015, 29.07.2015 as
well as on 30.07.2015 requesting the police agency to investigate the
suspicious death of his brother, meaning thereby that initially complainant
(PW-1) had believed the version of the wife of the deceased that deceased
had died because of fall. She claimed that after the incident of death of the
deceased she was handed over by her in-laws and send to the parental
house, and it was there she told to her parents about the incident dated
24.06.2015. None of her parents have been examined as witness.
20. PW-3 Abdul Aziz Bajad had been found narrating that the wife of the
deceased is an untruthful witness who was never under any kind of threat or
coercion and that she had changed her version a number of times.
21. On going through the testimony of PW-2, we could find that the
witness in her testimony is not consistent and it is highly unlikely that she
would have remained a mute spectator to an incident involving not only an
act of forcible sexual assault upon her but followed by murderous assault on
P a g e | 11
her husband. She choose not to implicate the accused immediately after the
incident, even after the burial of deceased she remained silent. She was
examined during inquest proceedings on 31-08-2015 wherein she is
categorically found narrating that while it was raining her husband had gone
out carrying an axe along; she after washing the utensils had ventured out of
the tent when she saw her husband lying unconscious underneath a tree, she
raised hue and cry that attracted the other people who took him to the tent.
There she reiterated that the deceased died because of fall. As per PW-1, the
exhumation of the body of deceased,under the orders of District Magistrate
Anantnag dated 17.08.2015, was conducted on 26.08.2015. Until that time
there was nothing on the part of PW-2 to have disclosed that the accused
persons were the perpetrators of the incident. She is found to be implicating
the accused for the first time on 19.02.2016 when she was produced before
JMIC, Anantnag for making of statement under Section 164-A Cr.P.C. She
categorically admits that the statement she has made during the inquest
proceedings is false and was wrongly recorded, she also claimed that on one
more occasion she was examined by the police, there also her statement has
been wrongly recorded, and that the true statement is the one which she is
giving in the court.
22. No-where in her testimony, we are able to find even a whisper as to
what kind of threat had been extended to her by the accused persons, rather
on going through the charge-sheet and the evidence, it transpires that even
the PW-2 is also alleged to have sworn an affidavit before the ‘Baradari’ on
P a g e | 12
28.06.2015 to the effect that the accused No.1 had forcibly entered into her
premises and subjected her to forcible sexual intercourse and when the
deceased noticed that incident he and the accused No.1 had a fight which
was joined by others. In case the said affidavit is based on truth and the
incident having taken place on 24-06-2015 there was no occasion for PW-2
to have not given the true statement of account during the inquest
proceedings.When confronted with the allegation that she was having illicit
relation with accused No.1, she had flatly denied the same. At the cost of
repetition if she was the only person having the knowledge of the incident
then she would not have remained silent for such a long time. The narration
of events appears to have been twisted in such a way to make up a case
against the respondents, rather the alleged incident of PW-2 being subjected
to forcible sexual act, is a narration that has been cooked up later on. When
suggested by the defence that whether she had killed her husband, she
reverted that it was the accused who murdered her husband. When asked
whether she had executed an affidavit implicating the accused in the
incident, she flatly denied having executed such an affidavit and also went
on to say that the said affidavit was forcibly obtained from her, so it was
without her consent. She denied having illegal sexual relations with accused
No.1.
23. On overall scrutiny of her testimony, when examined with the
medical evidence, goes on to show that though she claimed that the accused
gave such a beating to her husband that resulted into his death, whereas the
P a g e | 13
medical examination only speaks that there were no external and internal
injuries except that the neck bone of the deceased had got broken. PW-1
had fairly conceded that when the deceased was made to burial they did not
come across or noticed any marks of violence on the body of the deceased
and that belied the version given by PW-2 that the deceased died because of
fall.
24. Assuming for the sake of arguments that the deceased got furious on
seeing his wife in compromising position with accused No.1 and resultantly
there was a fight, then the accused being four in number and all were able
bodied who in case had subjected the deceased to such type of assault
resulting into his death, then the nature of injuries on his body would be
apparent which is not the case which belies the version of the PW-2 that it
was accused who had given beating to the deceased. Since, PW 2 had
changed her statement from time to time, her version cannot be believed
and her testimony falls in the category of a witness who is neither reliable
nor unreliable.
25. Hon’ble Apex Court in a case titled “Sampath Kumar Vs.
Inspector of Police Krishnagiri“reported in (2012) 4 SCC 124, has
observed that the discrepancies in testimony of a witness cause by memory
lapses are acceptable, but is unsafe to rely upon a version with material
improvement unless it is corroborated by some other independent evidence
that may probabilise the testimony. The Court has held as under:-
“…28. In the present case the testimony cannot be wholly
reliable or wholly unreliable. He is not a chance witness
P a g e | 14who had no reason to be found near the deceased at the
time of the occurrence. There is evidence to show that
Palani (PW 7) used to sleep with the deceased Senthil in
the verandah of the house. What makes it suspect is that
the witness has, despite being a natural witness, made a
substantial improvement in the version without there
being any acceptable explanation for his silence in regard
to the fact and matters which were in his knowledge and
which would make all the difference in the case. The
Court would, therefore, look for independent
corroboration to his version, which corroboration is not
forthcoming. All that is brought on record by the
prosecution is the presence of a strong motive but that by
itself is not enough to support a conviction especially in a
case where the sentence can be capital punishment.”
26. In “Mahavir Singh Vs. State of Madhya Pradesh“reported in
(2016) 10 SCC 220, the Hon’ble Supreme Court has observed that a
contradicted testimony of an interested witness cannot be usually treated as
conclusive and has held thus :-
“…22.The position of law in cases where there is a
contradiction between medical evidence and ocular
evidence can be crystallized to the effect that though the
ocular testimony of a witness has greater evidentiary
value vis-à-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluationof
evidence. However, where the medical evidence goes so
far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be
disbelieved.”
27. Hon’ble Supreme Court in “Kirpal Singh Vs. State of Punjab“
reported in 2024 SCC OnLine 549, while directing acquittal of appellant
P a g e | 15therein by giving him the benefit of doubt, has observed that ‘the inherent
improbabilities and loopholes in the evidence completely destroy the fabric
of the prosecution case which is full of holes and holes which are
impossible to be stitched together’.
28. The trial Court has thoroughly discussed the statement of PW-2 and
found that in case PW-2 is found to have given true statement of account,
then there would have been marks of injury on the body of the deceased,
even the alleged use of ‘pheran’ in affecting strangulation of the deceased
that too would have resulted into laying of a ligature mark around his neck,
whereas the medical examination of the deceased clearly reveals that there
was no ligature mark present on the neck of the deceased. The trial court
has also found that the beating would have resulted in injuries to abdomen
or other vital parts of the body, however, that aspect also is negated from
the medical evidence.
29. We agree with the finding returned by the trial court that given the
nature of the testimony of PW-2, the same was not only shaky but full of
inconsistencies, wherein the witness has changed her narration from time to
time, thereby making her an untruthful witness which cannot be believed on
its intrinsic character that too in a case involving an offence of murder.
30. It was pointed out by the appellant that the respondents have
executed affidavit admitting their involvement in the incident. In this regard
we have already observed in the aforesaid paras that the document (EXPW-
II) no-where shows or depicts that the respondents have made any
P a g e | 16
inculpatory statement against them admitting their involvement in the
incident.
31. The learned counsel appearing for the respondents, during the course
of arguments has submitted that the evidence led in this regard is also shaky
because neither PW-Ghulam Muhammad Darsaroo nor PW-Ghulam Rasool
Ganai have supported the prosecution in the context of respondents having
admitted or made any kind of extra judicial confession. He further contends
that even on the face of it the said document only speaks of that the
respondents claimed to be admitting some act of carelessness to which they
have been asked to compensate the complainant. In the statement recorded
under Section 342 Cr.P.C also, the respondents have reiterated that they
were forced to sign the document under the ‘Baradari’ pressure. During the
investigation, no evidence has been collected as to when in-fact such an
extra judicial confession was made, whether during the course of inquest
proceedings or immediately thereafter.
32. Be that as it is, since, PW-2 has alleged that she had been subjected
to forcible sexual intercourse, there was every probability that the
respondents were apprehending that they may be falsely implicated by her.
There is also probability that PW-2 might have been having any kind of
intimacy with accused No.1, which we find to be premise from her own
version because she no-where is found narrating that she offered any kind
of resistance to accused No.1 when he was forcing himself upon her to
subject her to forcible sexual intercourse. In-fact what is gathered from the
P a g e | 17
police case is that she was found in a compromising position with accused
No.1 which had infuriated the deceased. In that background where the
respondents have no-where in the said document admitted their
involvement in the incident merely because they are found admitting to be
paying some amount for damages or compensation to the complainant, that
all could have been for the reason that they apprehended false implication
from PW-2 that is why in order to save themselves such an affidavit might
have been got executed by them.
33. The testimony of PW-2, has been found to be unreliable and given
the medical evidence when the deceased was laid to burial none of the
witnesses including the brother of the deceased (PW-1) were found
narrating to have observed any kind of injury. According to medical
opinion, which only noticed dislocation of atlanto-axial joint (neck joint)
which the medical expert claim to have been also possible on account of fall
as well. It is difficult to believe the narration of PW-2 that the deceased had
been subjected to murderous assault by the accused when the former found
her in compromising position with accused No.1.
34. No doubt, it is trite law that a reasonable doubt is essentially a serious
doubt in the case of the prosecution and minor inconsistencies are not to be
elevated to the status of a reasonable doubt. A reasonable doubt is one which
renders the possibility of guilt as highly doubtful. It is also noteworthy that
the purpose of criminal trial is not only to ensure that an innocent person is
not punished, but it is also to ensure that the guilty does not escape
P a g e | 18
unpunished. Every case, wherein a guilty person goes unpunished due to any
lacuna on the part of the investigating agency, prosecution or otherwise,
shakes the conscience of the society at large and diminishes the value of the
rule of law.
35. It is no more res-integra that an extra judicial confession must be
accepted with great care and caution. If it is not supported by other
evidence on record, it fails to inspire confidence and in such a case, it shall
not be treated as a strong piece of evidence for the purpose of arriving at
the conclusion of guilt. Furthermore, the extent of acceptability of an extra
judicial confession depends on the trustworthiness of the witness before
whom it is given and the circumstances in which it was given. The
prosecution must establish that a confession was indeed made by the
accused, that it was voluntary in nature and that the contents of the
confession were true. The standard required for proving an extra judicial
confession to the satisfaction of the Court is on the higher side and these
essential ingredients must be established beyond any reasonable doubt. The
standard becomes even higher when the entire case of the prosecution
necessarily rests on the extra judicial confession.
36. In “Chandrapal v. State of Chattisgarh” reported in (2022) SCC
OnLine 705 , Hon’ble the Supreme Court has reiterated the evidentiary
value of an extra judicial confession in the following manner:-
“11. At this juncture, it may be noted that as per Section
30 of the Evidence Act, when more persons than one are
being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some
other of such persons is proved, the court may take into
P a g e | 19consideration such confession as against such other
person as well as against the person who makes such
confession. However, this court has consistently held that
an extra judicial confession is a weak kind of evidence
and unless it inspires confidence or is fully corroborated
by some other evidence of clinching nature, ordinarily
conviction for the offence of murder should not be made
only on the evidence of extra judicial confession. As held
in case of State of M.P. Through CBI v. Paltan Mallah,
the extra judicial confession made by the co-accused
could be admitted in evidence only as a corroborative
piece of evidence. In absence of any substantive evidence
against the accused, the extra judicial confession
allegedly made by the co-accused loses its significance
and there cannot be any conviction based on such extra
judicial confession of the co accused.”
37. Again in ‘Subramanya Vs. State of Karnataka‘ (2023) 11 SCC
255, the Hon’ble Apex Court had made the observation that conviction can
be based on a voluntary confession, but the rule of prudence requires that
wherever possible it should be corroborated by independent evidence,
however, extra judicial confession of accused need not in all cases be
corroborated. The Court has held that :-
“52. An extra judicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by the
Court. The confession will have to be proved like any
other fact. The value of the evidence as to confession, like
any other evidence, depends upon the veracity of the
witness to whom it has been made. The value of the
evidence as to the confession depends on the reliability of
the witness who gives the evidence. It is not open to any
court to start with a presumption that extra judicial
confession is a weak type of evidence. It would depend on
the nature of the circumstances, the time when the
confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can be
relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of
witnesses who appear to be unbiased, not even remotely
inimical to the accused, and in respect of whom nothing is
brought out which may tend to indicate that he may have
a motive for attributing an untruthful statement to the
accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused
is the perpetrator of the crime and nothing is omitted by
the witness which may militate against it. After subjecting
P a g e | 20the evidence of the witness to a rigorous test on the
touchstone of credibility, the extra judicial confession can
be accepted and can be the basis of a conviction if it
passes the test of credibility.
53. Extra judicial confession is a weak piece of evidence
and the court must ensure that the same inspires
confidence and is corroborated by other prosecution
evidence. It is considered to be a weak piece of evidence
as it can be easily procured whenever direct evidence is
not available. In order to accept extra judicial confession,
it must be voluntary and must inspire confidence. If the
court is satisfied that the extra judicial confession is
voluntary, it can be acted upon to base the conviction.
55. It is well settled that conviction can be based on a
voluntarily confession but the rule of prudence requires
that wherever possible it should be corroborated by
independent evidence. Extra judicial confession of
accused need not in all cases be corroborated. In Madan
Gopal Kakkad v. Naval Dubey and Another, (1992) 3 SCC
204, this Court after referring to Piara Singh and Others
v. State of Punjab, (1977) 4 SCC 452, held that the law
does not require that the evidence of an extra judicial
confession should in all cases be corroborated. The rule
of prudence does not require that each and every
circumstance mentioned in the confession must be
separately and independently corroborated.”
38. The appellant, during the course of hearing, is found conceding that
there were variations in the statement given by the witnesses, and that such
variations were natural to occur with the passage of time. We do not see
such a thing in this case because the star witness of the prosecution (PW-2)
has faired badly before the trial court, therefore, is highly unreliable
witness, and once her testimony is taken out of the prosecution case, its
whole edifice laid against the accused, crumbles like pack of cards.
39. We have examined the detailed judgement of the trial court and find
that it has thoroughly appreciated the testimony of all the witnesses
including that of PW-2 and has reached to the only conclusion regarding
non-culpability of the respondents. The set of witnesses laid against the
P a g e | 21
respondents, was not only weak but inherently lacking the credibility and
the appellant has not been able to point out any perversity in the judgement
impugned. The evidence led by the prosecution on the touchstone of
reliance on the statement of PW-2 and so-called extra judicial confession,
as being claimed before the ‘Baradari’, both suffer from inherent weak
probability, thus, do not inspire confidence. The trial court has examined
the evidence in detail. The respondents herein are presumed to be innocent
until they are convicted by the competent court after full-fledged trial. Here
the trial has ended into acquittal. Though the appellate court has a power to
review, re-appreciate and re-consider the evidence, both on facts and law,
upon which the order of acquittal is passed but the appellate court has to be
very cautious in interfering with the order of acquittal unless there are
compelling and substantial grounds of interference with the order of
acquittal. There cannot be a straightjacket formula as to under what
circumstances the appellate court can interfere, and here we have
thoroughly examined the record of the trial court and we are persuaded to
take only view which the trial court has taken. We find that the appellant
has not been able to point out any kind of perversity in the impugned
judgment. The prosecution has miserably failed in proving the charge
against the respondents.
40. On the conspectus of evidence and material on record, we are of the
considered opinion that the judgment of acquittal impugned in this appeal
is perfectly legal and valid and, thus does not call for any interference.
P a g e | 22
Otherwise also, the jurisdiction of the appellate Court hearing an acquittal
appeal is well circumscribed and where on evaluation of evidence and
material on record, two views are possible, the view which favour the
accused has to be preferred.
41. As a result of above discussion, we see no reason to interfere with
the finding of the trial court. Consequently the appeal does not succeed
and, is, accordingly, dismissed. The impugned judgment and order of
acquittal is hereby confirmed.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
SRINAGAR:
25.07.2025
Muzammil. Q
Whether the Judgment /Order is reportable: Yes
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