Decided on October 21,1999

Hassan Rather Respondents


SYED BASHIR -UD -DIN, J. - (1.) RESPONDENT -accused, Hassan Rather, was tried in Sessions case file No 4 of 1976 for offences under Section 302, 376/202 R.P.C. and acquitted of the charges by judgment and order dated 24 -11 -1979 of District and Sessions Judge, Anantnag. Against this judgment and order of acquittal, instant appeal is filed by the State of Jammu and Kashmir.
(2.) THE prosecution case is: - The accused and the deceased Fatah, were neighbours residing in village Chhamb Gund Syedapora, Tehsil Kulgam of District Anantnag On 21 -11 -1975, when Fatah and her younger brother alone were in the house, accused came and wanted ladder of the deceasedâ„¢s household. He promised Fatah fire wood in case ladder is made available to him. The accused got the ladder and thereafter during later period of the day, he asked Fatah, if she wanted fire wood then she should accompany him to forest, locally known as Frasnar Jungle . Fatah, after keeping information of her accompanying the accused for the purpose, with her brother, for her mother, who had been out to attend some marriage function in another village, viz. Gund, left for the jungle with accused. When the two reached a remote spot in the jungle, the accused against the will of Fatah, sexually assaulted and raped her. Fatah started weeping. He walked some little distance behind her. On realising that Fatah was at the edge of steep slope with rough and uneven surface (Chhamb) the accused forcefully pushed her from behind. Her head struck against the hard surface of the Chhamb and she rolled down the precipice. Accused managed to reach the foot of the slope. He got hold of Fatahâ„¢s head in his hands and repeatedly dashed it against hard surface, till she died. To conceal the body he carried her a little away and left her there till he got spade from his house and dug up a trench in which he laid Fatahâ„¢s body and filled it with the soil. He concealed her basket in adjacent jungle. Thereafter, he returned to the village. The exact location of the aforementioned alleged acts is depicted in the site plan Ex -P 19/2 on record After Fatahâ„¢s mother returned to villagers on the very day, i.e. 21 -11 -1975, she made earnest inquiries about her daughter. She informed her ËœDewarâ„¢ (husbandâ„¢s brother. Abdul Gani Rather PW1). They and other villagers made inquiries but failed to locate Fatah, PW1, lodged report with police station Kulgam on 26 -11 -1975. The police is also alleged to have joined search for her. Nothing was known about her till 07 -12 -1975. On 08 -12 -1975, the SHO Police Station Kulgam, reached parties village and while he was busy questioning different people, PW -2 Prithvi Nath, appeared on spot and took Amma Rather PW -3, aside. At the instance of Amma Rather, Prithvi Nath informed the SHO and others present on spot that the accused had come and confessed to him that accused had killed Fatah and that the witness should find ways and means to save him from the cultches of police, even if some money was required to be spent for the purpose. The SHO send for the accused He was brought in custody. The accused in presence of the gathering confessed the commission of crime and made disclosure statement (Ex -P2/E.X 2/2), pursuant to which the dead body of Fatah, wicker basket (Puj) and spade (Beelcha) were recovered and seized memoâ„¢s Ex PW/Ex -PW 2/3. Ex -P4/Ex -PW 2/6 and Ex P8/ Ex -PW 2/9 were prepared. Site plan Ex -PW 19/2 and scizure menios of soil collected from spade EX -P9/EX -PW 14/3 and soil and other material gathered from the site where Fatah was burried (EX -PW 15/3) were prepared. Memos of pant of the accused (Ex -P10 /Ex -Pw 1/1) and garments of deceased Fatah (Ex -PM 14/ Ex -PW 2/8 and Ex -PM 157 Ex -PW -DE -DEP) were also prepared. The post Mortum of dead body was conducted and autopsy report obtained. The reports of Chemical Analyst and Seriologist were also obtained. The statements of witnesses under section 161 Cr.P.C and of accused under section 164 Cr.P.C were recorded. The investigating ended up in sending accused for trial. After the challan was received by the committal Magistrate the accused was committed and sent for trail before the District and Sessions Judge, Anantnag. The accused pleaded not guilty and the trail in the session Court culminated in the acquittal of the accused.
(3.) THE Judgment and order of acquittal are assailed on the ground that the trail Judge has not properly appreciated the evidence. The evidence has not been properly scanned and analysed. The court has wrongly doubted extra judicial confession of the accused and drawn erroneous conclusion from circumstantial evidence. The prosecution case is proved by circumstantial evidence conclusively as corroborated by expert evidence, confession of accused and ante and post crime conduct of the accused. Yet the trail court has for no reasons acquitted the accused. The defence counsel in his submissions while controverting and refuting the main plank of prosecution arguments submits that all relevant circumstances and facts of this case have been properly examined, analysed and appreciated. Reasons have been given to disbelieve the voluntary character of the confession and other circumstances appearing on record. The accused has been rightly acquitted, as the prosecution has failed to prove case against him beyond reasonable doubt.;

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