Jammu & Kashmir & Ladakh High Court
The Jammu and Kashmir and Ladakh High Court held that merely because an accused has not chosen to offer any explanation about the manner in which the deceased died, it would not attract Section 106 of the Indian Evidence Act, 1872 (IEA).
The Court held thus in two Criminal Appeals preferred against the Judgment of conviction and Order of sentence passed by the Additional Sessions Judge (ASJ) by which the accused persons were convicted under Sections 302 and 34 of the Ranbir Penal Code, 1989 (RPC) and sentenced to imprisonment for life with a fine of Rs. 5,000/- each.
A Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar observed, “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. When the prosecution case itself does not inspire confidence and suffers from grave infirmities then merely because accused Gulshana Bano has not chosen to offer any explanation about the manner in which the deceased died would not attract Section 106 of the Evidence Act. Her non-explanation if any cannot be used to fill up the gaps left by the prosecution witnesses in their depositions.”
The Bench added that once the case of the prosecution is found insufficient to sustain charge against the accused, any inculpatory part of her statement cannot be made sole basis of her conviction, because the same does not come within the purview of evidence in terms of Section 3 of the IEA.
Advocates S.T. Hussain and Nida Nazir represented the Appellants while Government Advocate (GA) Illiyas Nazir Laway and Assisting Counsel Mohammed Younis represented the Respondents.
Case Background
In 2002, the brother-in-law of the Appellant 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 deceased, she told him that he has been taken by Army people. When he entered her house, he found the body of deceased in a corner and on seeing that, the Appellant started crying. He immediately called the Police party who seized the body and this led to the registration of FIR.
It was alleged that during investigation, the Appellants were apprehended on suspicion as there was a buzz in the area that the Appellant was having illicit relations with Co-Appellant and in order to eliminate the deceased from their discourse, she facilitated his entry in her house without the knowledge of the deceased. When the deceased entered the house, the Co-Appellant who had already hid himself in the eastern corner, allegedly hit the deceased on head by pestle (Chhota) and later throttled him to death. The Trial Court held the Appellants guilty and being aggrieved by their conviction, they approached the High Court.
Reasoning
The High Court in the above context of the case, noted, “So, 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. 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 Court said that on the strength of evidence available on record, the Appellant cannot be held liable for killing of the deceased merely because she chose to life regarding the presence of deceased.
“An adverse inference can be drawn against her only and only if the incriminating material stood fully established and to that any false explanation would act as additional material against her. She however, has a right to remain silent and she cannot be forced to become witness against herself. Hence the circumstances upon which the prosecution have been relying and had persuaded the court below to hold them guilty, those circumstances have not been proved beyond doubt”, it added.
The Court further remarked that in case the two accused wanted to bury the deceased, nothing prevented them from digging a pit which was fit enough to accommodate the body of the deceased and it was not necessary for them to dug in two separate pits.
“There is one more issue that requires consideration which is, though the deceased had met with the homicidal death and given the evidence against appellant Shamim Ahmed Parray being untrustworthy then could it be inferred that the co-accused had subjected the deceased to the assault and then to throttle him to death. Such inference is highly improbable given the nature of oral evidence on record”, it also observed.
The Court was of the view that it would be quite hazardous to hold both the Appellants guilty of offence under Sections 302 and 34 RPC with aid of Section 106 IEA on strength of available material and evidence.
“For the foregoing reasons 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, since they are on bail, shall stand discharged of bail bonds”, it concluded.
Accordingly, the High Court allowed the Appeals and acquitted the accused persons.
Cause Title- Shamim Ahmad Parray @ Koka Parray v. State of J&K (Case Number: CRA No. 9900005/2014)
