Circumstantial Gaps Doom Murder Conviction | J&K HC Acquits Duo Citing Failure To Prove Guilt Beyond Reasonable Doubt And Chain Of Evidence Being Broken
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar set aside the conviction and life sentence imposed by the trial court in a 2002 homicide case, acquitting both the accused after over a decade of incarceration. The court held that the prosecution failed to establish a complete chain of circumstantial evidence linking the accused to the commission of murder. The court stated that the conviction was based on "suspicion, however grave," which "cannot take the place of proof" and reiterated that "in a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof."
The Bench observed that the prosecution evidence suffered from grave infirmities, including contradictory witness testimonies, uncorroborated disclosures, and a lack of clear forensic linkage. The judgment directed the acquittal of the two appellants who had challenged the trial court's conviction under Section 302/34 RPC. The High Court declined to confirm the sentence of life imprisonment and rejected the corresponding criminal reference. Both appellants were discharged from their bail bonds.
The case stemmed from an incident during the intervening night of 1st and 2nd April 2002 in the district of Anantnag, Jammu & Kashmir. According to the prosecution, the body of Farooq Ahmad Parray was discovered in his house by PW-1, his brother-in-law. The deceased was the husband of one of the appellants, Mst. Gulshana. The other appellant, Shamim Ahmad Parray alias Koka Parray, was alleged to have been in an illicit relationship with Mst. Gulshana.
The prosecution alleged that PW-1, while passing through the courtyard of the deceased’s house early in the morning, noticed the main door locked from outside and a pit dug in the courtyard. Upon inquiry, Mst. Gulshana informed him that the deceased had been taken by Army personnel. However, upon entering the house, PW-1 discovered the deceased’s body and informed the police, leading to the registration of FIR No. 79/2002 at Police Station Bijbehara.
It was alleged that on the night of the incident, Mst. Gulshana facilitated the entry of Shamim Ahmad Parray into the house without the knowledge of the deceased. When the deceased entered, the co-accused allegedly struck him on the head with a pestle and subsequently throttled him to death. The prosecution claimed the pestle was recovered at Shamim’s disclosure and was shown to the medical expert, who opined that the injuries were consistent with the weapon. An identity card belonging to Shamim was also said to have been recovered from a pit in the house.
The prosecution presented a total of 33 witnesses, including key testimonies from PW-1 (the informant), PW-18 (daughter of the deceased and accused Mst. Gulshana), and PW-24 and PW-25 (medical officers). The post-mortem report indicated a lacerated wound over the occipital area, a broken hyoid bone, and congested trachea and lungs. The cause of death was stated as asphyxia following throttling. The report stated that the injuries were sufficient to cause death and had occurred within 14-15 hours before autopsy.
At the conclusion of the trial, both accused were convicted under Section 302/34 RPC and sentenced to life imprisonment along with a fine of Rs. 5,000 each. The trial court found the prosecution had proved eight circumstances linking the accused to the crime.
In their appeals before the High Court, the appellants argued that the entire case was based on circumstantial evidence and that there were substantial inconsistencies in the prosecution's narrative. They contended that the medical evidence was inconclusive regarding throttling, that the recovery of the alleged weapon and identity card was not credible, and that there was no direct evidence linking them to the crime.
The Division Bench recorded that the prosecution relied exclusively on circumstantial evidence and laid down the established principles to be followed in such cases. Referring to Raj Kumar Singh vs. State of Rajasthan, the court stated: "The Court must consider a case of circumstantial evidence in light of... the chain of circumstances... must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime."
The court reiterated that "suspicion, however grave it may be, cannot take the place of proof... mere conjectures or suspicion do not take the place of legal proof." It examined the eight circumstances relied upon by the trial court and found that they did not collectively form an unbroken chain of evidence.
The Bench scrutinized the testimony of PW-18, daughter of the deceased, and noted contradictions in her statements regarding whether she saw the accused Shamim in the courtyard or from within her room. The court recorded: "The witness has blown hot and cold... the contradictory narration of the witness should have put the learned trial court to caution before relying on her testimony."
Regarding the recovery of the weapon (pestle), the court noted that it was a common household item found in the kitchen and not hidden or uniquely known to the accused. The court stated: "It cannot be said that the spot where the weapon of offence was lying was to the specific knowledge of the accused." It also found contradictions between the medical expert’s claim that the pestle bore no blood stains and the forensic report that detected blood.
On the recovery of Shamim's identity card from a pit, the court observed: "If the Investigating Officer... thoroughly searched the premises... then the Identity Card would most likely have surfaced on 02.04.2002 itself and not waited for the arrival of the witnesses..."
The court also questioned the relevance of the two pits found in the courtyard and room, noting that defence evidence indicated these were likely dug by Army personnel during a prior search for hidden arms. The Bench recorded: "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..."
Addressing the prosecution’s reliance on Section 106 of the Evidence Act, the court stated that foundational facts to invoke the provision had not been established. Referring to Vasant alias Girish Akbarsab Sanavale vs. State of Karnataka, the court reiterated: "For applicability of Section 106... the prosecution has to as a condition precedent lay the foundational facts..."
It further observed: "Her non-explanation if any cannot be used to fill up the gaps left by the prosecution witnesses... She has a right to remain silent and she cannot be forced to become witness against herself."
Finally, on the alleged motive of an illicit relationship, the court noted that this theory only emerged after the accused were arrested. The court remarked: "The story of the two accused having illicit relations... has all come to fore after they were arrested... rendering its whole case not only suspicious but suffering from grave infirmities."
The High Court stated: "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."
The court directed that: "Since they are on bail, [they] shall stand discharged of bail bonds."
Additionally, the court stated: "The reference for confirmation of the sentence is declined and Cr. Ref. No. 05/2014 is rejected."
The Bench further ordered: "The record of the trial Court be returned."
Advocates Representing the Parties:
For the Petitioners: Mr. S. T. Hussain, Advocate with Ms. Nida Nazir, Advocate
For the Respondents: Mr. Illiyas Nazir Laway, Government Advocate with Mohammad Younis, Assisting Counsel
Case Title: Shamim Ahmad Parray & Anr. vs. State of J&K
Case Number: CRA No. 9900005/2014 & CRA No. 07/2017 c/w Cr. Ref. No. 05/2014
Bench: Justice Sanjeev Kumar, Justice Sanjay Parihar
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