STATE Vs. ISMAIL

JUDGEMENT

(1.) We have heard Mr. H. Rehman, learned Government Advocate, as well as Mr. S. C. Gupta, learned advocate appearing for the accused, in extenso. By means of this reference, learned Additional Sessions Judge, Kishtwar has submitted the proceedings for confirmation of the sentence of life imprisonment awarded to the accused, Ismail and Mohd. Shafi, in proof of offence under Ss. 302/34, RPC in File No. 26/Session on 28-7-1999.

(2.) Facts that culminated in the prosecution of the accused depicted in narration are that, on 22-10-1993, both the accused, namely, Ismail and Mohd. Shafi, who bore animosity with the deceased persons and intending to liquidate them, followed the deceased at Thasgrah, where the latter had gone with their cattle. The accused on finding an opportunity and taking advantage of his seclusion, attacked the deceased Taju and his son Abdullah on the night preceding 22nd- 23/10/1993 and inflicted multiple injuries with stones and lathi, which proved fatal. Mohd. Shafi, who had temporarily shifted his residence along with his brother to Thasgrah area on 23-10-1993 for grazing their cattle noticed the dead bodies of deceased, Taju and his son Abdullah, lying in a pool of blood at a short distance from their dhera. He immediately informed Faqiroo, the brother of the deceased about the death of his brother and brother'a son. After receiving information, Faqiroo, complainant, accompanied by Hans Raj, Numberdar and Peeru proceeded to Police Station, Kishtwar and reported the matter to the effect that Taju along with his son Abdullah carried his cattle for grazing to Thasgrah area, where he had been murdered by some miscreants and their dead bodies were lying there. This led to the registration of a case for offence under S. 302, RPC and investigation proceeded. The police visited the spot, seized blood-stained lathi and blood-stained stones from the place of occurrence. The dead bodies of the deceased were removed for post-mortem examination. Accused Ismail was taken in custody, and on his disclosure statement, one danda was recovered at his instance from his house. The other accused Mohd. Shafi was, however, arrested subsequently by the police on 8-12-1993, as he had absconded after the commission of the crime. After recording the statement of the witnesses and on conclusion of the investigation, both the accused, Ismail and Mohd. Shafi, were sent to stand trial under Sections 302/34, RPC and the learned trial Court after recording the evidence adduced by the prosecution and the accused in defence and hearing the parties, held both the accused guilty of offences under Ss. 302/34, RPC and sentenced them to suffer imprisonment for life and a fine of Rs. 5,000.00 each and in default of making payment of fine to undergo simple imprisonment for six months, and submitted the proceedings for confirmation of the sentence in terms of Section 374, Cr. P.C.

(3.) Mr. Rehman, learned Government Advocate appearing for the State, vehemently urged that the circumstantial evidence relied upon by the prosecution is consistent only with the hypothesis that the accused alone had killed Taju and his son Abdullah on the ill-starred night of occurrence. Whereas Mr. S.C. Gupta, learned counsel appearing for the accused submitted that there being no direct evidence, the circumstantial evidence relied upon by the trial Court does not warrant conviction because the evidence provided by the witnesses is interested, tainted and smack of partisanship. The manner in which extra-judicial confession is attributed to the accused- Ismail, having made before the Panchayat, which had assembled and inquiries were made from the accused about his involvement in the commission in pursuance of suspicion against them because of enmity. That such a confession was neither voluntary nor out of free will and, therefore, such kind of confession cannot be received in evidence. He further submitted that there is no reliable evidence to connect the accused with the commission of the crime.