BASHIR AHMED WAGAY Vs. STATE OF J&K

JUDGEMENT

(1.) This appeal is directed against judgment of conviction dated 20.12.2012 and order of sentence dated 22.12.2012 formulated by learned Sessions Judge Kulgam by virtue whereof appellant - Bashir Ahmed Wagay (hereinafter referred to as 'accused') stands convicted of offence under Section 302 of RPC and sentenced to undergo imprisonment for life besides paying a fine of Rs. 2,000/- (Rupees Two Thousand), in default to suffer three months simple imprisonment. Confirmation Reference in terms of provisions of Section 374 of Cr.P.C. submitted by the learned Sessions Judge is clubbed with the appeal for disposal. The accused was tried along with one Mst. Saida w/o deceased Ismail Naik resident of Asnoor on the basis of Charge Sheet filed by Station House Officer of Police Station Damhal Hanjipora in case registered under FIR No. 53 of 1990 alleging commission of offence under Sections 302,109 of RPC. It appears that initially the case was committed to the Court of learned Sessions Judge Anantnag in absence of accused who were allegedly absconding but was remanded back to Magistrate to adhere to the mandate of Section 205-D and 193 of Cr.P.C. After some inept handling of the case causing unnecessary delay, the case was committed to Court of Sessions after the accused- Bashir Ahmed Wagay was arrested. Learned Sessions Judge framed charges against the accused for offence under Section 302 of RPC. With the creation of Sessions Division for newly created District of Kulgam the case stood transferred to learned Sessions Judge Kulgam. The trial culminated in slapping of conviction and life sentence upon the accused as aforesaid.

(2.) Prosecution version, as unfolded in the Charge Sheet, is that on 30.10.1990 one Abdul Qadeer Naik laid information at Police Station D.H. Pora to the effect on 29.10.1990 deceased Ismail Naik had gone to the forest for bringing fire wood but he had not returned back to his home till evening. The informant further stated that Basharat Ahmed Naik and Showkat Ahmed Naik, who had set out in search of the deceased, discovered dead body of deceased lying in a pool of blood at a place and they informed Mohd. Amin Naik who also went on spot. They had noticed blood stains on the Goriwan road and found grievous injuries on the head of the deceased. These witnesses had found a wooden log lying besides the dead body. As per informant it was suspected that the deceased had been murdered by the accused Bashir Ahmed Wagay on instigation of Mst. Saida wife of deceased as the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida and he wanted to contract marriage with her. This information led to registration of case under FIR No. 53/1990 for offence under Section 302 of RPC. During the course of investigation body of deceased was seized along with blood stained clay, stones and a wooden log from the place of occurrence. The seized articles were sealed on spot. Post Mortem Examination was conducted on the body of the deceased. The wearing apparels of deceased were seized. It was found that the deceased had sustained fatal injuries on his head which had been caused by a Danda (stick). Accused Bashir Ahmed Wagay was arrested on 03.11.1990 and on his Disclosure Statement a wooden Danda was recovered at his instance from his house. The investigation revealed that the accused Bashir Ahmed Wagay was having illicit relations with Mst. Saida- the wife of deceased and the latter wanted to contract marriage with accused Bashir Ahmed Wagay. Mst. Saida had children from the deceased-husband and she had resorted to pressure tactics harassing the deceased to compel him to divorce her. Ultimately, she hatched a criminal conspiracy with accused Bashir Ahmed Wagay to eliminate her husband and in furtherance of such conspiracy accused-Bashir Ahmed Wagay committed murder of Ismail Naik. The material assembled during investigation established complicity of accused Bashir Ahmed Wagay in offence under Section 302 of RPC while offence under Sections 302 /109 of RPC was found to have been made out against Mst. Saida. Accused Bashir Ahmed Wagay escaped from Police lockup and case under FIR No. 56 of 1990 for offence under Section 224 of RPC was registered against him. Accused Bashir Ahmed Wagay had removed Mst. Saida to an unknown place and she was at large while accused Bashir Ahmed Wagay had been arrested and put on trial after he pleaded not guilty to Charge under Sections 302, 109 of RPC framed against him by learned Sessions Judge Anantnag.

(3.) Prosecution adduced evidence of thirteen witnesses at the trial while PW(s) Basharat Ahmed Naik and Showkat Ahmed Naik, sons of deceased who were nominated as witnesses in the FIR died during the course of trial before appearing in the witness box. Brief resume of prosecution evidence is adverted to herein below: