Srinagar: The J&K High Court on Thursday acquitted a man and a woman from south Kashmir for charges of murder and also set aside a trial court order that had convicted the duo and sentenced them to life imprisonment.
A division bench comprising justices Sanjeev Kumar and Sanjay Parihar while allowing the appeals against the trial court conviction and sentence, acquitted Shamim Ahmad Parray alias Koka Parray, son of Ismail Parray of Jablipora, and Mst Gulshana, daughter of Lassi Bhat, widow of Late Farooq Ahmad Parray (deceased), resident of Babapora, Badigam Qazigund District Anantnag.
The division bench recorded “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”.
The judges “regretted” their “inability to uphold the 2014 judgment of the trial court”. Accordingly, while allowing both these appeals, the judgment of conviction and sentence passed by the trial court was set aside.
“The appellants are acquitted of all the charges, since they are on bail, shall stand discharged of bail bonds”, they ordered and the reference for confirmation of the sentence was declined and Cr. Ref. No. 05/2014 by the government was rejected.
During the intervening night of 1st and 2nd April 2002 when prosecution witness (PW1) 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 Ahmad (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 his deceased brother 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.
“In order to eliminate the deceased from their discourse, 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 (Shamim Ahmad @ Koka Parray) 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”, the prosecution said.
It 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 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, it added.
Both the appellants were therefore, accused of having killed deceased with common intention to eliminate him and were formally charged and convicted for offences under section 302/34 RPC.
They however all along pleaded not guilty.
The division bench judgment also mentioned of statements “by defence witnesses (DW) Mohammad Ibrahim Bhat, DW Mohammad Amin Parray and DW Nisar Ahmed Parray. They stated certain relatives of deceased were involved in militant activities and prior to the incident Army had raided the deceased’s house so as to search for weapons and there the two pits were dug, however, nothing could be recovered’.
The judges noted “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”.
It added “this 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”.
The judgment read, ”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”.
It said “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 lie before PW-1 regarding presence of deceased. To this answer has to be in negative, because if she chose 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”.
