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| Additional District, Session Judge Fast Track Court Sudesh Sharma acquits accused after 13-years | | ‘Person accused of offence always presumed to be innocent, burden lies upon prosecution to establish case beyond reasonable doubt’ | | Early Times Report
Jammu, July 10: Additional District and Session Judge Fast Track Court Doda, Ms Sudesh Sharma has picked up holes in police investigation into a rape and murder case and acquitted an accused, who faced trial for 13 years, and 4 months and 2-days.
Accused Bashir Ahmed Khatana son of Illamdin r/o Barswana tehsil, district Doda was booked under sections 376/302/201 RPC in the year 2011 and the charges were framed under sections 376/302/201 RPC. He had pleaded not guilty following which he was acquitted after more than 13 years.
Additional District and Session Judge Fast Track Court Doda, Ms Sudesh Sharma in a judgment said: “On a totality of the consideration of entire evidence and keeping in mind the settled position of law, as discussed above, the circumstances sought to be proved by the prosecution are inconsistent and the inconsistencies in the chain of circumstances have not been explained by the prosecution. The doubtful existence of the confession without execution of any formal document or without its proof, unnatural conduct of Prosecution Witness-2 and Prosecution Witness-3, contradictions regarding arrest, source of information, place of occurrence, delay in registration of FIR, delay in recording the statements of the material witnesses under section 164-A CrPC, unnatural prior and subsequent conduct of PW-1, PW-2, PW-3, PW-7 and PW-24, incredible testimony of the witnesses in support of the last seen theory etc. are major inconsistencies which strike at the root of prosecution case. To draw an inference of guilt on the basis of such evidence would result into nothing but failure of justice. The evidence on record completely fails the test laid down for the acceptability of circumstantial evidence. Therefore, in light of the detailed discussion on all the circumstances, all the issues are hereby answered in negative. The prosecution case appears to be based on guess work, conjunctures, surmises and possibilities.”
“In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish case beyond reasonable doubt and all ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply.
In a criminal trial requirement of proof does not lie in the realms of surmises and conjectures. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions. 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 to be elevated to the status of reasonable doubt. A reasonable doubt is one which renders the possibility of guilt as highly doubtful. It is also noteworthy that the guilty does not escape unpunished. A Judge owes this duty to the society and effective performance of his duty plays a crucial role in securing the faith of the common public in the rule of law,” the Judge said.
“In the light of foregoing discussion as well as upon consideration of the above-mentioned various judicial pronouncements made by the Hon’ble Supreme Court on the subject and considering the evidence as a whole, I am of the considered view that the chain of circumstantial evidences led by the prosecution is visibly incomplete and incoherent to permit conviction of the accused without any trace of doubt on following grounds:- a. For attributing the act of throwing the deceased-”Z” into the river Chenab, the prosecution has relied upon PW-2 Illam Din and PW-3 Ramesh Kumar but their conduct is unnatural, the versions are manifold in such circumstances, it cannot be held that the testimonies of all the above-mentioned PW’s are trustworthy, reliable and credible. Besides, the prior and the subsequent conduct of PW-1 Illam Din (complainant) after the receipt of such material information,is also unnatural. Thus, testimonies of all the above-mentioned witnesses have failed to inspire the confidence of the court, in the light of the contradictions, multiplicity of versions and material improvements,” the Additional District and Session Judge maintained.
“ The recovery of the articles made on 05-03-2011 allegedly belonged to deceased-”Z” from the open places which were easily accessible to the public was also not proved by the prosecution by leading cogent, convincing and reliable evidence. The alleged confession made by accused before the Investigating Officer without there being by any supporting document is not sufficient to prove that the accused has made any such confession,” she said.
“The FIR was not lodged soon after the incident despite of the fact that PW-2 Illam Din and PW-3 Ramesh Kumar had witnessed the alleged occurrence and name of the accused was known to PW-1 (complainant) on the day of occurrence Accused Bashir Ahmed Khatana had pleaded not guilty following which he was acquitted after more than 13 years.
The doubtful existence of the confession without execution of any formal document are major inconsistencies.
The evidence on record completely fails the test laid down for the acceptability of circumstantial evidence.
Therefore, in light of the detailed discussion on all the circumstances, all the issues are hereby answered in negative. The prosecution case appears to be based on guess work, conjunctures, surmises and possibilities.
In the instant case, the alleged incident of rape and murder had taken place on 01-03-2011 and the dead body of victim was found on 21-04-2011. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, post-mortem report exhibited as EXT-P37 does not mention any timing as to when the death had occurred. Hence, the post-mortem report did not prove the time of death of the victim, in view of the state in which the body was discovered,” the Additional Sessions Judge said.
“Before wrapping up the Judgment, I must take note of the manner in which the investigation into this dastardly crime has been undertaken. Numerous lapses bolt the entire map. I have already pointed out multiple instances which have led to the chain of circumstances remaining broken, the larger picture emerging there from being that the person, whosoever he may have been, remains unpunished in view of the investigation conducted in the instance case. It is the duty of the investigating authorities not only to protect the citizens of the country, but also to ensure fair and proper investigations into crimes affecting the society. Needless to state, such responsibilities would be all the more heightened in the cases of crimes involving severe punishments such as imprisonment for life. The delay in recording the statements of material witnesses especially PW-2 Illam Din and PW-3 Ramesh Kumar who claimed to have witnessed the occurrence remains unexplained, the inference is that either they were not eye-witnesses of the version of the incident or the version given by them was a fabricated version. Admittedly a dead body was recovered after 58 days of the incident from the side of river Chenab in decomposed condition. Therefore, the prosecution case regarding the identity of dead body is also not free from doubts. The motive of alleged murder was held to be rape but there is neither any direct nor circumstantial, ocular or medical evidence, linking the accused on the point of motive of the incident.
In the instant case, the alleged incident of rape and murder had taken place on 01-03-2011 and the dead body of victim was found on 21-04-2011. Hence, the time of death was also very much significant, however in view of the state in which the dead body was found, post-mortem report exhibited as EXT-P37 does not mention any timing as to when the death had occurred. Hence, the post-mortem report did not prove the time of death of the victim, in view of the state in which the body was discovered,” the Judge said.
“Appropriate to mention here that by not conducting the investigation properly, the prosecution has done grave injustice to the family of the victim. By fixing culpability upon the accused without any shred of evidence which will stand the scrutiny, the prosecution has done injustice to the accused. Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of crime.
In totality of the circumstances mentioned above and discussed elaborately, in the judgment, the prosecution has failed to elevate its case from the realm of “may be true” to “must be true” as is indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of the accused. The accused is therefore, acquitted for the offences punishable under sections 376, 302, 201 RPC. He is, therefore, ordered to be released from jail, if his presence in jail is not required in connection with some other case. Accused is directed to furnish personal bond in the sum of Rs. 50,000/- and surety bond in the like amount in accordance with section 437-A CrPC to in-charge concerned District Jail, Bhaderwah to the effect that in the event of filing of appeal against this Judgment, the accused on receipt of notice thereof, shall appear before the
Hon’ble High Court. The bail bond furnished by accused under section 437-A Cr.PC shall remain in force for a period of six months from the date of his acquittal,” the Judge said. |
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