Shahzad Azeem, J.

1. By virtue of this acquittal appeal, challenge is thrown to the judgment dated, October 13, 2012, passed by learned Principal Sessions Judge, Kishtwar [the trial Court] in case titled “State vs. Mehboob Hussain and others”, whereby the trial Court has acquitted the accused of the charges under Section 302/34/109 RPC.

2. Since this is an appeal against the judgment of acquittal, therefore, it has to be borne in mind that the Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one.

3. It is equally settled that the appellate court, however, must bear in mind that in a case of acquittal, there is double presumption in favour of the accused, firstly; the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly; the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Therefore, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of the acquittal recorded by the trial court. Support for this proposition can be drawn from the Hon’ble Supreme Court judgment in “Babu vs. State of Kerala” (2010) 9 SCC 189.

4. We may now proceed to examine the merits of the case, bearing in mind the broader principles of law governing an appeal against acquittal.

FACTS

5. The Investigating Agency swang in action in pursuance to the written report, EXPW-FA submitted by PW1-Fareed Hussain Bhat on June 06, 2005 alleging therein that his sister, Mst. Wahida Begum (deceased) was married to accused, Mehboob Hussain (A-1), however after sometime their marital relations ran into rough weather, as the brother of A-1, namely; Shabir Ahmed (A-2) wanted to marry his sister-in-law to A-1, because she also stated to have ₹80,000/- bank deposit. Therefore, as prosecution story goes, A-1 on the instigation of A-2, started torturing and maltreating the deceased, so that he may solemnize his second marriage to the sister-in-law of A-2. Accordingly, in order to get rid of the deceased, the accused along with the family members have committed murder of deceased on June 06, 2005. This written report led to registration of a formal case being FIR No.68/2005 under Section 302/109 RPC and investigation commenced.

6. On completion of investigation, it has come to fore that frequent visits of a militant, namely; Jahangir to the house of A-1, Mehboob Hussain, gave rise to suspicions of his illicit intimacy with the deceased, therefore, accused have started torturing the deceased and also as per prosecution version, deceased had attempted to commit suicide and also Panchayats were convened, including the deceased alleged to have filed a case before the Court of learned Sub Judge, Kishtwar, but same was later on compromised. It is further alleged that A-1, A-2 and accused, Sajjad Ahmed (A-3) have hatched the conspiracy and trio in furtherance of common criminal intention on June 05, 2005, strangulated the deceased to death by a plastic rope.

7. During trial, the prosecution has examined 15 witnesses out of listed 18 witnesses.

8. The prosecution had tried to support its case by direct as well as indirect evidence. The prosecution case fundamentally hinges on motive, disclosure, recovery, and last seen theory.

9. As far as the direct evidence is concerned, as per prosecution case, same is supplied by PW2-Ajaz Hussain Bhat, PW3-Mst. Bibi Gulshan and PW7-Sanaullah Bhat, respectively. PW-1 and PW-2 are also cited as witnesses to the disclosure and recovery of weapon of offence.

FINDINGS OF THE TRIAL COURT

10. The trial Court while acquitting the accused had come to the conclusion that the prosecution case completely rests on circumstantial evidence, as PW-2, PW-3 and PW-7, have denied to have seen the occurrence and thus these witnesses not only contradicted the prosecution case, but also have not been declared hostile by the prosecution. The trial Court noted that these witnesses though have been cited as eye witnesses, but they had resiled from the statement made before the police and deposed that they only saw the dead body of the deceased, but neither had deposed that they saw the accused committing the murder of the deceased nor that they saw the accused while fleeing after commission of offence. Therefore, the trial Court had come to the conclusion that the prosecution case rests on circumstantial evidence, but again after holding a detailed discussion, it has come to the conclusion that the prosecution has failed to prove the disclosure and recovery of the weapon of offence, inasmuch as motive as well as last seen theory is also not proved, therefore, on finding that prosecution has failed to establish the complete chain of incriminating circumstances has acquitted the accused.

SUBMISSIONS

11. The bone of contention of the appellant is that the trial Court did not appreciate the prosecution evidence in its correct perspective, in that important pieces of evidence that got corroborated by medical report is not properly appreciated by the trial Court. It is further submitted that the prosecution has proved the occurrence but the trial Court has adopted hyper technical approach without taking into consideration that the prosecution has supported the case by direct and circumstantial evidence, therefore, the judgment of acquittal is bad in law.

12. On the other hand, the learned counsel appearing for the respondents has taken us to the judgment of trial Court and also made submissions in line with the reasoning prevailed with the trial Court while passing the judgment of acquittal, therefore, for the sake of brevity, we do not wish to burden the judgment with the submissions made by learned counsel for the respondents.

ANALYSIS

13. (i) Eye Witnesses

As it has been noted that the prosecution has supported the case by direct as well as indirect evidence and as per the prosecution case, the direct evidence is supplied by PW2-Ajaz Hussain Bhat, PW3-Mst. Bibi Gulshan and PW7-Sanaullah respectively, therefore, let us, at first instance, examine the testimonies of these witnesses, because if their testimonies are found to be of sterling quality then the fate of the prosecution case mainly hinges on them.

14. In their statements recorded under Section 161 Cr.P.C, PW-2, PW-3 and PW-7 have stated that they saw the accused strangulating the deceased to death with a plastic rope, but when they raised alarm, the accused have fled from the spot. However, none of these witnesses have remained consistent with their earlier statements when entered the witness box during trial, so much so PW-7 even denied to have accompanied PW-2 and PW-3 at the time of occurrence. It has come in the testimonies of PW-2 and PW-3 that when they had arrived at the house of deceased, they saw only Ghulam Hussain, the brother of the accused and the dead body of the deceased was lying alone. Similarly, PW-7, has deposed diametrically opposite to what has been stated u/s 161 Cr.P.C. He deposed that he did not witness the occurrence, however, when he had returned from Garhat (a traditional water powered mill) he had come to know about the occurrence.

15. From the testimonies of PW-2, PW-3 and PW-7, it is very much discernible that none of these witnesses had seen the occurrence as alleged by the prosecution, therefore, we concur with the findings of the trial Court that prosecution case hinges on circumstantial evidence.

16. Now it is to be seen as to how prosecution fared during trial and as to whether or not it remained successful in establishing a complete chain of incriminating circumstances which if considered jointly is consistent with the hypothesis of the guilt of the accused.

17. (ii) MOTIVE

Present is a case where prosecution has attributed specific motive that led to the murder of the deceased. However, again on the point of motive, the prosecution has propounded two theories.

18. First narration aligns with the written report, EXPW-FA, lodged by PW-1, Fareed Hussain Bhat, that A-2 Shabir Ahmed wanted to marry his sister-in-law to A-1 because she had ₹80,000/- bank deposit. Therefore, in order to get rid of deceased, the accused have hatched the conspiracy and murdered the deceased.

19. The second version of prosecution story is that a militant, namely, Jahangir was on visiting terms with the house of the A-1, Mehboob Hussain and accused suspected that said militant had developed illicit relations with the deceased, which formed the motive of her murder.

20. On the point of alleged illicit relations of the deceased with the militant, Jahangir, no evidence is led by the prosecution, rather some of the witnesses have tried to project a case of maltreatment of deceased, at the hands of accused, so that A-1 could have contracted second marriage.

21. Be it noted that this is a case where motive has been specifically alleged, but prosecution had failed to prove the motive, as there are inconsistencies in the testimonies of the prosecution witnesses besides there are also contradictions on the point whether alleged suspicion about the deceased having illicit relations with the militant, Jahangir or that A-1 wanted to contract second marriage, has propelled the crime. Neither any convincing evidence on the point that A-2 wanted to marry his sister-in-law to A-1 is led nor any documentary evidence is produced to prove that alleged bank deposit of the sister-in-law of A-2, lured the A-1 to contract marriage with her, therefore, we concur with the findings of the trial Court, that there are inconsistencies as to the alleged motive in the evidence i.e., whether accused would suspect the chastity of the deceased or would wish to solemnize second marriage of A-1.

22. There is another very important aspect of the matter that needs appreciation that PW-1 is the complainant and also brother of the deceased, whereas, PW-3 is the sister of the deceased. If prosecution story is to be believed then accused have tortured and maltreated the deceased for considerable long time before her death. However, to the contrary, against all human probabilities PW-1 deposed that prior to the occurrence they would frequently visit the house of the accused, as they had good relations and would respect each other, inasmuch as there was no ill-will between them. While contradicting this statement of her brother, PW-3 deposed that their relations with the accused were not cordial and they have been forbidden by the accused to visit their house. These two contradictory versions have come from brother and sister of the deceased that casts serious doubt as to the motive attributed by the prosecution which led to the cause of death.

23. Therefore, the motive in the present case though was specifically attributed and thus had formed important link in the chain of circumstances, but this vital link has been found missing.

24. (iii) DISCLOSURE AND RECOVERY

On the point of disclosure and recovery, the prosecution has cited PW-1, Fareed Hussain Bhat, PW-2, Ajaz Hussain Bhat and of course PW-16 Mohd Amin Khan (I.O).

25. PW-1, Fareed Hussain Bhat is none other than the brother of deceased, however, PW-2, Ajaz Hussain Bhat is the brother-in-law of the complainant, but PW-2 in very categoric terms deposed that A-1 did not make any disclosure statement in his presence and further deposed that at the instance of I.O, he made the statement. It is also noteworthy that it has specifically come in the statement of PW-1, Fareed Hussain Bhat (complainant) that accused made disclosure statement in the police station inter alia in the presence of PW-2, Ajaz Hussain Bhat and PW-16, Mohd. Amin. However, as noted hereinbefore PW-2, Ajaz Hussain Bhat completely denied that accused had made any such statement in his presence.

26. The trial Court has specifically observed that the recovery was allegedly effected on June 28, 2005, as borne out from Case Diary (CD file), in that recovery memo EXPW-FA-3, did not contain any date, therefore, the trial Court had perused the CD file, but to the contrary, I.O visited the spot only on June 06, 2005 and June 07, 2005, therefore, question of disclosure and recovery in his presence did not arise. PW-2 has denied the recovery in his presence and PW-16 by no stretch of imagination could have witnessed the recovery as he never visited the spot after June 07, 2005, therefore, uncorroborated testimony of PW-1 does not inspire confidence as to place reliance on it. On this aspect, the trial Court has rightly come to the conclusion that both disclosure statement and recovery are fake, particularly, in view of the statement of the Investigating Officer.

27. (iv) LAST SEEN THEORY

As per the statement of prosecution witnesses, A-1, Mehboob Hussain, during those days was working, as carpenter in Kishtwar, whereas A-2, Shabir Ahmed had been to Jammu six months prior to the occurrence. Though PW-2 and PW-3 deposed that A-2 had come home in the evening of June 06, 2005 from Kishtwar, but it is not convincing, as A-2 was not arrested immediately on his arrival, but it was only after 22 days of occurrence i.e., June 28, 2005, he was arrested. Rather this casts doubt and speaks volume as to the manner in which investigation was being carried in the matter, notwithstanding the fact that there is no evidence worth the name against the A-3, regarding his complicity in commission of alleged offence.

28. At the same time, PW-2, PW-3 and PW-7, who were cited as eye witnesses have denied to have seen the occurrence, rather they deposed that dead body of the deceased found to have been lying alone at her residence, therefore, last seen accused with the deceased immediately before occurrence is also not proved by the prosecution, so as to shift the burden.

29. Therefore, the essential links in the chain of circumstances, i.e., motive, disclosure and recovery, last seen stand, either wholly unproved or seriously impaired by unreliable and inconsistent evidence. The chain is, therefore, incomplete and broken on several places, leaving wide gaps that permit reasonable alternative hypothesis consistent with the innocence of the accused.

30. It is a cardinal principle of criminal jurisprudence that suspicion, however, grave cannot take the place of proof and the prosecution has to prove its case beyond reasonable doubt. Where two views are reasonably possible on record one pointing towards the guilt of the accused and the other towards his innocence, the view favourable to the accused must be adopted.

31. In view of the foregoing reasons and upon scrutiny of the evidence, we are of the view that the trial Court has appreciated the evidence in its correct perspective and, accordingly, while concurring with the judgment of the trial Court, the appeal is dismissed, as same is found to be devoid of merit.

32. Record be sent to the trial Court with due dispatch.